Remedial Law Bar Reviewer

REMEDIAL LAW
AND LEGAL ETHICS

2022 BAR EXAMINATION REVIEWER
This reviewer was created to serve as my study material for the 2022 Bar Examination. This is not intended to be a
secret reviewer; anyone is free to utilize it. Please use at your own risk.
In God’s Perfect Time
© PPT LECTURES OF JUDGE GITO | BOOKS OF DEAN RIANO & JUSTICE DE LEON |
TAX LECTURES OF ATTY. MAGSOMBOL
“When the time is right, I, the Lord, will make it happen.”
PART 1 Petition for Recognition of the Exemption of

FIRST LEVEL COURTS GSIS for Payment of Legal Fees, A.M. No.
08-2-01-0 [2010]
I. GENERAL PRINCIPLES
The Congress passed a law making the
Government Service Insurance System exempt
A. Substantive law vs. remedial law from legal fees imposed by the Rules of Court. Is
the law valid?
Substantive law creates, defines, and regulates rights
concerning life, liberty, and property. (Primicias vs. The law is invalid. The legal fees are imposed by the
Ocampo, 93 Phil. 446) Rules of Court. By making the GSIS exempt from
the legal fees imposed by the Rules of Court, the
Remedial law lays down the methods by which those law, in effect, amends the Rules of Court. This
rights or obligations arising from substantive law are cannot be done without offending the Constitution.
protected, enforced and given effect. (Bustos vs. The power to promulgate rules concerning
Lucero, 81 Phil. 640) pleading, practice and procedure in all courts is a
traditional power of the Supreme Court. It is a
Should there be a conflict between substantive law power that is not shared with Congress. The
or remedial law, which would prevail? imposition of legal fees is provided by the Rules of
Court. The Rules of Court was promulgated in the
➔ A: Substantive law. exercise of the Court's rule-making power.
Note: The Supreme Court is not the only source of Carpio-Morales vs. CA [2015]
remedial law. Even Congress can be a source of
remedial law. Substantive law may also be a source of May Congress pass a law prohibiting courts from
remedial law. (Example: B.P. 29) issuing injunctive relief just like Section 14 of RA
6770 or the Ombudsman Law which provides that
B. Rule-making power of the Supreme Court “no writ of injunction shall be issued by any court to
delay an investigation being conducted by the
Subjects of the Rule-making power of SC: Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the
1) Protection and enforcement of the investigation is outside the jurisdiction of the Office
constitutional rights of the Ombudsman.”?
2) Pleading
That Congress has been vested with the authority
3) Practice
to define, prescribe, and apportion the jurisdiction
4) Procedure in all courts
of the various courts under Section 2, Article VIII
5) Admission to practice of law
supra, as well as to create statutory courts under
6) Integrated bar
Section 1, Article VIII supra, does not result in an
7) Legal assistance to underprivileged
abnegation of the Court's own power to promulgate
rules of pleading, practice, and procedure under
Limitations of the Rule Making Power
Section 5 (5), Article VIII. When Congress creates a
court and delimits its jurisdiction, the procedure for
a) The rules shall provide a simplified and
which its jurisdiction is exercised is fixed by the
inexpensive procedure for the speedy
Court through the rules it promulgates.
disposition of cases.
b) The rules shall be uniform for all courts of the C. Principle of judicial hierarchy
same grade;
DOCTRINE OF HIERARCHY OF COURTS
c) The rules shall not diminish, increase, or
modify substantive rights. Under the doctrine of hierarchy of courts, where
courts have concurrent jurisdiction over the subject
Is this power exclusive to the Supreme Court? Can matter, such concurrence of jurisdiction does not
this power be shared with other departments? grant the party seeking relief the absolute freedom to
file the case in court of his choice. Pursuant to the
YES. The rule making power of SC is exclusive. It is doctrine, the case must be filed first to the lowest
not shared with Congress, more so with the executive court possible, having appropriate jurisdiction.
(Echegaray vs. Secretary of Justice)
The doctrine of the hierarchy of courts guides litigants
on the proper forum of their appeals as well as the
venue for the issuance of extraordinary writs. As to the
2022 Bar Reviewer by J.K.R. Gamboa | 2

latter, even if the RTC, the CA, and the Court have vs. Banco Filipino)
concurrent original jurisdiction over petitions for
certiorari, prohibition, mandamus, quo warranto, and Judge Gito: We also have 2 or more courts here.
habeas corpus, litigants must, as a rule, file their These 2 or more courts have equal jurisdiction; they
petitions, with the court below and failure to do so will are of equal rank and jurisdiction. They are of EQUAL
be sufficient for the dismissal of the case (Malingin vs. RANK.
Sandagan)
E.g. RTC = RTC; MTC = MTC; Equal rank.
Q: What is the essential element before the
doctrine of hierarchy of courts would be applied? If two courts have equal rank, then one court cannot
interfere with a court of co-equal rank because that
➔ A: There must be two or more courts having would violate the doctrine of non-interference.
ORIGINAL AND CONCURRENT
JURISDICTION. Does the doctrine of non-interference apply to
administrative bodies?
EXCEPTIONS TO THE DOCTRINE OF HIERARCHY
OF COURTS YES. When the law provides for an appeal from the
decision of an administrative body to the SC or CA, it
1) When there are special and important reasons means that such body is co-equal with the RTC in
clearly stated in the petition. terms of rank and stature, and logically beyond the
control of the latter (Philippine Sinter Corp. vs.
2) When dictated by public welfare and Cagayan Electric Power and Light Co) Therefore, if this
advancement of public policy. administrative body and RTC are equal - then you
apply the doctrine of non-interference.
3) When demanded by the broader interest of
justice. The RTC cannot TRO that administrative body. The
RTC cannot enjoin such administrative body because
4) When the challenged orders were patent
they are of equal rank, and that is violative of doctrine
nullities.
of non-interference.
5) When analogous exceptional and compelling
circumstances called for and justified the N.B. Doctrine of non-interference is applicable only
immediate and direct handling by the Court. when the administrative body is exercising
quasi-judicial power.
6) When there are genuine issues of
constitutionality that must be addressed at the E. Jurisdiction
most immediate time.
MEANING OF JURISDICTION
D. Doctrine of non-interference/judicial stability
It is the power and authority of the court to hear, try,
DOCTRINE OF NON-INTERFERENCE and decide the case.
The doctrine of non-interference holds that the courts Jurisdiction of the court includes the authority to
of equal and coordinate jurisdiction cannot interfere execute its decision. It includes the power of the court
with each other’s order (Lapu-Lapu Development and to control the execution of its decision.
Housing Corp. vs. Group Management Corp.)
Q: What is the effect if the court who decides a
Thus, RTC has no power or authority to nullify or case does not have jurisdiction over the case he
enjoin the enforcement of a writ of possession issued decides? Court already rendered judgment, but
by another RTC (Suico Industrial Corporation vs. CA) that court has no jurisdiction.
A court cannot interfere with the judgment, order, or ➔ A: The judgment will be void.
resolution of another court exercising concurrent or
coordinate jurisdiction. The doctrine finds basis on the 1. Original vs. appellate
concept of jurisdiction: "a court that acquires
jurisdiction over the case and renders judgment Original jurisdiction means jurisdiction to take
therein has jurisdiction over its judgment, to the cognizance of a cause at its inception, try it and pass
exclusion of all other coordinate courts, for its judgment upon the law and facts.
execution and over all its incidents, and to control, in
furtherance of justice, the conduct of ministerial Appellate jurisdiction means the authority of a court
officers acting in connection with this judgment. (BSP higher in rank to re-examine the final order or
judgment of a lower court which tried the case now

elevated for judicial review. HOW IS JURISDICTION OVER THE PARTIES

ACQUIRED?
2. General vs. special
Plaintiff — Filing of the complaint or petition
General jurisdiction means the power of the court or
tribunal jurisdiction to hear, try and decide all kinds of Defendant —
cases except those prohibited by law.
● Voluntary appearance and submission to the
Special jurisdiction means the power of the court to authority of court (Seeking an affirmative relief)
hear, try and decide certain type of cases.
XPN: Motion to Dismiss due to lack of
3. Exclusive vs. concurrent jurisdiction over the person of the defendant
Exclusive jurisdiction means no other courts or ● Service of summons

tribunal has the same jurisdiction over a particular
case. When is there voluntary appearance?
Concurrent jurisdiction means equal jurisdiction to When we speak of voluntary appearance that means
deal with the same subject matter. asking an affirmative relief from the court.
4. Continuity of jurisdiction To constitute voluntary appearance, it must be the

kind that amounts to voluntary submission to the
DOCTRINE OF ADHERENCE TO JURISDICTION jurisdiction of the court. Submission to the jurisdiction
of the court takes the form of appearance that seeks
It means that ones jurisdiction has attached, it cannot affirmative relief except when the relief sought is for
be ousted by subsequent happenings or events, the purpose of objecting to the jurisdiction of the court
although of a character which would have prevented over the person of the defendant.
jurisdiction from attaching in the first instance. The
court, once jurisdiction has been acquired, retains that Thus, if he participates in the trial despite defective
jurisdiction until it finally disposes of the case (Bantua service of summons the same amounts to voluntary
vs. Mercader) appearance.
5. Original Jurisdiction of various Philippine Rule 14, Sec. 23. Voluntary appearance. — The
courts defendant's voluntary appearance in the action shall
be equivalent to service of summons. The inclusion in
(check separate reviewer) a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall
6. Aspects of jurisdiction be deemed a voluntary appearance.
● Jurisdiction over the subject matter

When is jurisdiction over the person of the
● Jurisdiction of the parties defendant required?
● Jurisdiction over the issues of the case
In an action in personam, jurisdiction over the person
● Jurisdiction over the res or thing involved in of the defendant is necessary for the court to validly
litigation try and decide the case.
a. Jurisdiction over the parties However, in an action in rem or quasi in rem,

jurisdiction over the person of the defendant is not
Jurisdiction over the parties refers to the power of the required. Nevertheless, summons must be served
court to make decisions that are binding on persons. upon the defendant, not for the purpose of vesting the
court with jurisdiction, but merely for satisfying due
It is the legal power of the court to render a personal process requirements.
judgment against the party to an action or proceeding.
Action in personam An action in personam is an
A decision rendered on a complaint in a civil action or
action against a person in
proceeding does not bind or prejudice a person not
the basis of his personal
impleaded therein, for no person shall be adversely
liability.
affected by the outcome of a civil action or proceeding
in which he is not a party (Guy vs. Gacott)

well as by the character of the relief sought. This is

Action in rem An action in rem is an action
regardless of whether or not the plaintiff is entitled to
against the thing itself,
recover all or some of the claims or reliefs sought
instead of against the
therein.
person.
Thus:
Action in quasi in An action quasi in rem is
rem one wherein an individual is
● Caption of the case is not controlling.
named as defendant and
● Defenses and evidence do not determine
the purpose of the
jurisdiction.
proceeding is to subject his
● The amount awarded does determine
interest therein to the
jurisdiction.
obligation or lien burdening
the property.
What if the defendant in an ejectment case raises
the issue of tenancy in his answer, should the
b. Jurisdiction over the subject matter court dismiss the case for lack of jurisdiction?
Jurisdiction over the subject matter is referred to as While the MTC does not lose its jurisdiction over an
the power of a particular court to hear the type of case ejectment case by defendant’s alleging the existence
that is then before it. The term also refers to the of tenancy relationship, yet, if after the hearing,
jurisdiction of the court over the class of cases to tenancy had in fact been shown, the court should
which a particular case belongs (De Pedro vs. dismiss the case for lack of jurisdiction (De la Cruz, vs.
Romasan Development, 2014) CA, 510 SCRA 103, 116)
How is jurisdiction over the subject matter

Judge Gito’s example:
conferred?
Plaintiff filed an unlawful detainer case, MTC has
Jurisdiction over the subject matter is conferred either jurisdiction. Defendant filed an answer, one of the
by the Constitution or by law. affirmative defenses of defendant is lack of
jurisdiction over the subject matter because there
Jurisdiction cannot be the subject to agreement of the exists a tenancy relationship between the plaintiff
parties. It is also not waivable. and defendant. Should the court dismiss the
case?
Can you question lack of jurisdiction over subject
matter for the first time on appeal? NO. The court should proceed with the trial. And if
the court determines in the course of the
YES. Jurisdiction over the subject matter cannot be proceedings that there really exists a tenancy
waived. Even if you did not question in the trial court, relationship between the two - the court should
you can still question before the appellate court dismiss the case for lack of jurisdiction.
because it cannot be waived.
Would you consider this an XPN to the GR that
Rules over jurisdiction over the subject matter: jurisdiction over the subject matter is
determined by the allegations of the complaint?
■ It cannot be waived;
When the defendant alleged in its answer that there
■ It cannot be subject to the agreement of the is a tenancy relationship between the parties, the
parties; court should not dismiss the case. Because of that
principle - that jurisdiction over the subject matter is
■ It cannot be conferred by the acquiescence of determined by the allegations of the complaint. It
the court. was only when evidence was presented and the
court found out that there indeed exists a tenancy
■ It can be questioned for the first time on relationship, then, that’s the only time that the court
appeal; dismisses the case.
■ The judgment is void if it is rendered by a If the court does not have jurisdiction over the
court without jurisdiction. subject matter, can the court motu proprio
dismiss the case? ?
How is jurisdiction over the subject matter
determined? YES. Even in the middle of the proceedings and the
court found out that there is no jurisdiction, then the
It is determined by the allegations in the complaint, as court can dismiss the case.

Is there an exception to that principle that case.

jurisdiction over the subject matter cannot be
waived, can be questioned for the first time on Whether the Surety is barred from raising the
appeal, cannot be conferred by acquiescence of jurisdictional issue by laches?
the court?
Yes. A party may be estopped or barred from raising a
Yes. Jurisdiction by estoppel. Take note of Tijam v. question in different ways and for different reasons.
Sibonghanoy. Here, the SC barred a belated Estoppel is divided into either estoppel in pais, or
objection to jurisdiction because the party questioned estoppel by deed or by record, and of estoppel by
the jurisdiction only when an adverse decision was laches. Laches, in a general sense is failure or neglect,
rendered and because the party raised only the issue for an unreasonable and unexplained length of time, to
after 15 years. The party participated in all stages of do that which, by exercising due diligence, could or
the proceedings and sought affirmative relief from the should have been done earlier; it is negligence or
court. omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to
Estoppel by laches may only be invoked to bar the assert it either has abandoned it or declined to assert
defense of lack of jurisdiction if the factual milieu is it. A party cannot invoke the jurisdiction of a court to
analogous to Tijam vs. Sibonghanoy. sure affirmative relief against his opponent and, after
obtaining or failing to obtain such relief, repudiate or
The contention that the defense of lack of jurisdiction question that same jurisdiction.
may be waived by estoppel through the active
In the current case, from the time the Surety became a
participation in the trial is not the general rule, but an
quasi-party on July 31, 1948, it could have raised the
exception, best characterized by the circumstances in
question of the lack of jurisdiction of the CFI since the
Tijam vs. Sibonghanoy.
sum of money involved which, according to the law
then in force, was within the original exclusive
TIJAM V. SIBONGHANOY jurisdiction of inferior courts. It failed to do so. Instead,
at several stages of the proceedings in the court a quo
(digest only but YOU HAVE TO READ THE FULL TEXT) as well as in the Court of Appeals, it invoked the
jurisdiction of said courts to obtain affirmative relief
On July 19, 1948, petitioners Serafin Tijam and and submitted its case for a final adjudication on the
Felicitas Tagalog commenced a civil case in the Court merits. It was only after an adverse decision was
of First Instance of Cebu against the spouses rendered by the Court of Appeals that it finally raised
Magdaleno Sibonghanoy and Lucia Baguioto to the question of jurisdiction..
recover the sum of P1,908.00, plus legal interests and
additional costs. Laches as an exception to the rule that jurisdiction
over the subject-matter may be raised at any stage
Later, respondent company Manila Surety and Fidelity of the proceedings
Co., Inc. was referred to by the spouses Sibonghanoy
as their surety. About a month prior to the filing of the The rule is that jurisdiction over the subject matter is
complaint, the Judiciary Act of 1948 took effect, conferred upon the courts exclusively by law, and as
depriving the Court of First Instance of original the lack of it affects the very authority of the court to
jurisdiction over cases in which the demand, exclusive take cognizance of the case, the objection may be
of interest, is not more than P2,000.00. (Secs. 44[c] raised at any stage of the proceedings.
and 86[b], R.A. No. 296.).
However, considering the facts and circumstances of
Despite the enactment of RA 296, throughout the the present case, a party may be barred by laches
resolution of the case over the next fifteen years in the from invoking this plea for the first time on appeal for
Cebu CFI and later the court of appeals, respondent the purpose of annulling everything done in the case
Surety did not dispute the jurisdiction of the courts, with the active participation of said party invoking the
whether directly or indirectly. plea.
Later, in January 1963 receiving the decision of the CA c. Jurisdiction over the issues
affirming the CFI’s writ of execution, respondent filed a
motion to dismiss, alleging that the petitioner’s action Jurisdiction over the issue is conferred and
was filed just one month after the enactment of date determined by the allegations in the pleadings of the
RA 296, and that Section 88 of said Act placed within parties. The pleadings present the issues to be tried
the original exclusive jurisdiction of inferior courts all and determine whether not the issues are of fact or of
civil actions where the value of the subject-matter or law.
the amount of the demand does not exceed
P2,000.00, exclusive of interest and costs; that the CFI An issue arise because a material allegation of a
therefore had no jurisdiction to try and decide the claiming party is specifically denied by the defending

party. favor of the petitioner against all the world, without

even taking actual physical control over the property.
Jurisdiction over the issue may be determined by the Further, in an action to foreclose a mortgage against a
stipulation of the parties during pre-trial (Sec. 2, Rule non-resident, the relief must be confined to the res
18) and not against the person himself.
Jurisdiction over the issue may also be conferred by In the present case, the mortgaged property is the
waiver or failure to object to the presentation of sole thing which is impleaded and is the responsible
evidence on the matter not raised in the pleading (Sec. object which is the subject of the exercise of judicial
5, Rule 10) power. The jurisdiction of the CFI is based exclusively
on the power which it possesses over the property
d. Jurisdiction over the res or the property in under the law on land registration.
litigation
What is the extent of relief that may be awarded in
Jurisdiction over the res refers to the court’s action in rem and quasi in rem?
jurisdiction over the thing or the property which is the
subject of the action. This type of jurisdiction is Any relief granted in rem or quasi in rem actions must
necessary when the action is one in rem or quasi in be confined to the res, and the court cannot lawfully
rem. render judgment against the defendant.
When the action is action in personam, the jurisdiction 7. Jurisdiction vs. exercise of jurisdiction
over the res is not sufficient to authorize the court to
render judgment against the defendant. In an action in Jurisdiction is the authority to hear and determine a
personam, jurisdiction over the person is required. cause —the right to act in a case. Since it is the power
to hear and determine, it does not depend either upon
NOTE: All those cases enumerated in Sec. 1, Rule 72 the regularity of the exercise of that power or upon the
are considered actions in rem. Anything about status, rightfulness of the decisions made. Jurisdiction should
establishment of fact, right or status - that is an action therefore be distinguished from the exercise of
in rem because the decision of the court in those jurisdiction.
cases is enforceable against the whole world.
The authority to decide a cause at all, and not the
What is the res? decision rendered therein, is what makes up
jurisdiction. Where there is jurisdiction of the person
1) Property subject matter of the case; (E.g. land and subject matter, as we have said before, the
registration cases) decision of all other questions arising in the case is
but an exercise of that jurisdiction. (Herrera v. Barreto)
2) Status of the person. (E.g. action for
declaration of nullity of marriage) 8. Jurisdiction vs. venue
How is jurisdiction over the res acquired? Venue is the place or the geographical area in which a
court with jurisdiction may hear and determine a case
a) It may be acquired by placing the property or or the place where a case is to be tried.
thing under the custody of the court.
Venue in civil cases is procedural and not substantive.
b) It may also be acquired by the court through Thus, it may be waived or subject to agreement of the
statutory authority conferring upon it the parties.
power to deal with the property or thing.
JURISDICTION VENUE
Banco Espanol-Filipino v. Palanca
authority of the court to place where the case is
The Supreme Court held that jurisdiction over the
hear and decide the to be heard or tried
property which is the subject of the litigation may
case
result either from a seizure of the property under legal
process, where it is brought into actual custody of the matter of substantive matter of procedural law
law, or may result from the institution of legal law
proceedings which gives the court has power over the
property under special provisions of the law. An cannot be waived by the may be waived if not
example of the latter is jurisdiction over the res parties invoked either in a
whereby the court assumes to exercise jurisdiction in motion to dismiss or in
rem over the property, and to adjudicate the title in the answer.

behalf;
fixed by law may be fixed by
agreement of the c) Actions coupled with provisional
parties. remedies such as preliminary
injunction, attachment, delivery of
9. Jurisdiction over cases covered by personal property and support during
Barangay Conciliation, Small Claims Cases and the pendency of the action; and
cases covered by Summary Procedure
d) Actions which may be barred by the
Statute of Limitations.
BARANGAY CONCILIATION
9) Any class of disputes which the President may
Prior recourse to Barangay conciliation is a determine in the interest of justice or upon the
pre-condition before filing a complaint in court or recommendation of the Secretary of Justice;
any government offices, except in the following
disputes: 10) Where the dispute arises from the
Comprehensive Agrarian Reform Law (CARL)
1) Where one party is the government, or any
subdivision or instrumentality thereof; 11) Labor disputes or controversies arising from
employer-employee relations;
2) Where one party is a public officer or
employee, and the dispute relates to the 12) Actions to annul judgment upon a
performance of his official functions; compromise which may be filed directly in
court.
3) Where the dispute involves real properties
located in different cities and municipalities, RULES OF PROCEDURE FOR SMALL CLAIMS
unless the parties thereto agree to submit
their difference to amicable settlement by an These Rules shall govern the procedure in actions
appropriate Lupon; before the MeTCs, MTCCs, MTCs and MCTCs for
payment of money where the value of the claim does
4) Any complaint by or against corporations,
not exceed ₱1,000,000.00 exclusive of interest and
partnership or juridical entities, since only
costs. The New Rule no longer makes a distinction
individuals shall be parties to Barangay
whether the claim is filed before the first level courts
conciliation proceedings either as
within or outside Metro Manila.
complainants or respondents
Small Claim is an action that is purely civil in nature
5) Disputes involving parties who actually reside
where the claim or relief prayed for by the plaintiff
in barangays of different cities or
is solely for the payment or reimbursement of a
municipalities, except where such barangay
sum of money. It excludes actions seeking other
units adjoin each other and the parties thereto
claims or reliefs aside from payment or reimbursement
agree to submit their differences to amicable
of a sum of money and those coupled with provisional
settlement by an appropriate Lupon;
remedies.
6) Offenses for which the law prescribes a
The claim or demand may be:
maximum penalty of imprisonment exceeding
one (1) year or a fine over five thousand pesos 1) For money owed under any of the
(P5,000.00); following:
7) Offenses where there is no private offended a) contract of lease,
party;
b) contract of loan and other credit
8) Disputes where urgent legal action is accommodations
necessary to prevent injustice from being
committed or further continued, specifically c) contract of services,
the following:
d) contract of sale of personal
a) Criminal cases where accused is property, unless it is made the subject
under police custody or detention; of a compromise agreement between
the parties.
b) Petitions for habeas corpus by a
person illegally deprived of his rightful 2) the enforcement of barangay amicable
custody over another or a person settlement agreements and arbitration awards
illegally deprived or on acting in his where the money claim does not exceed

PHP1,000,000.00, provided that no execution fine not exceeding PHP50,000.00, or both,

has been enforced within six (6) months from regardless of other imposable penalties,
the settlement date or receipt of award or the accessory or otherwise, or of the civil liability
date when the obligation becomes due and arising therefrom. In offenses involving
demandable. pursuant to Sec. 417 of the damage to property through criminal
LGC. negligence, this Rule shall govern where the
imposable fine does not exceed P150,000.00.
RULES ON SUMMARY PROCEDURE
Rules on Summary Procedure shall not apply to a civil
case where the plaintiff's cause of action is pleaded in
This rule shall govern the summary procedure in the
the same complaint with another cause of action
MeTCs, MTCCs, MTCs and MCTCs in the following
subject to the regular procedure; nor to a criminal
cases falling within their jurisdiction:
case where the offense charged is necessarily related
A. Civil Cases: to another criminal case subject to the regular
procedure.
1) Forcible entry and unlawful detainer cases,
regardless of the amount to be recovered. Note: In cases of appeal, any judgment, final order, or
Attorney’s fees, if awarded, shall not exceed final resolution of the first level courts on summary
PHP100,000.00; procedure may be appealed to the appropriate
Regional Trial Court (RTC) exercising jurisdiction over
2) All civil actions, except probate proceedings, the territory under Rule 40 for civil cases and Rule 122
admiralty and maritime actions and small for criminal cases. The judgment of the RTC on the
claims where the claim does not exceed appeal shall be final, executory, and unappealable.
PHP2,000,000.00.
3) Complaints for damages where the claims do

not exceed PHP2,000,000.00;
4) Cases for enforcement of barangay amicable

settlement agreements and arbitration award
where the money claim exceeds
PHP1,000,000.00, provided that no execution
has been enforced within six (6) months from
the settlement date or receipt of award or the
date when the obligation becomes due and
demandable;
5) Cases solely for the revival of judgment of any

first level court;
6) The civil aspect of violations of Batas

Pambansa Blg. 22 (BP 22), if no criminal
action has been instituted therefor.
**Should a criminal action be later instituted

for the same violation, the civil aspect shall be
consolidated with the criminal action and shall
be tried and decided jointly under the Rule on
Summary Procedure.
B. Criminal Cases:
1) Violations of traffic laws, rules and regulations;
2) Violations of the rental law;
3) Violations of municipal or city ordinances;
4) Violations of BP 22; and
5) All other criminal cases where the penalty

prescribed by law for the offense charged is
imprisonment not exceeding one year, or a

■ An action for the nullity of marriage is a

II. CIVIL PROCEDURE
personal action.
A. General provisions (Rule 1) ■ An action for specific performance with

damages is a personal action as long as it
Rule 1, Section 3. Cases governed. – These Rules shall does not involve a claim or recovery of
govern the procedure to be observed in actions, civil or ownership, title, to real property.
criminal, and special proceedings.
■ Where complaint is for specific performance
(a) A civil action is one by which a party sues another but prays for the issuance of deed of sale over
for the enforcement or protection of a right, or the a parcel of land to enable the plaintiff to
prevention or redress of a wrong. acquire ownership thereof, it is a real action.
A civil action may either be ordinary or special. Both ■ Annulment of sale of real property is a real
are governed by the rules for ordinary civil actions, action.
subject to the specific rules prescribed for a special
civil action. (n) ■ An action to foreclose a real estate mortgage
is a real action, but an action to compel the
(b) A criminal action is one by which the State mortgagee to accept payment of the
prosecutes a person for an act or omission punishable mortgage debt and release the mortgage is a
by law. (n) personal action.
(c) A special proceeding is a remedy by which a party ■ An action to annul a contract of loan and its
seeks to establish a status, a right, or a particular fact. accessory real estate mortgage is a personal
action.
Rule 1, Section 4. In what cases not applicable. –
These Rules shall not apply to election cases, land NOTE: Not all actions involving real property are
registration, cadastral, naturalization and insolvency real actions.
proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and Spouses Saraza, et al. v. Francisco (2013)
whenever practicable and convenient.
Although the end result of the respondent's claim was
Rule 1, Section 5. Commencement of action. – A civil the transfer of the subject property to his name, the
action is commenced by the filing of the original suit was still essentially for specific performance, a
complaint in court. If an additional defendant is personal action, because it sought Fernando's
impleaded in a later pleading, the action is execution of a deed of absolute sale based on a
commenced with regard to him on the date of the contract which he had previously made.
filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied by Specified Contractors & Development, Inc., vs.
the court. Pobocan, 2018
Rule 1, Section 6. Construction. – These Rules shall be That the end result would be the transfer of the
liberally construed in order to promote their objective subject units to respondent's name in the event that
of securing a just, speedy and inexpensive disposition his suit is decided in his favor is "an anticipated
of every action and proceeding. consequence and beyond the cause for which the
action [for specific performance with damages] was
instituted."
REAL ACTION PERSONAL ACTION
Had respondent's action proceeded to trial, the crux
It is an action which If it is not real action,
of the controversy would have been the existence or
affects title to or then it is personal
non-existence of the alleged oral contract from which
possession of real action.
would flow respondent's alleged right to compel
property, or an interest
petitioners to execute deeds of conveyance. The
therein.
transfer of property sought by respondent is but
incidental to or an offshoot of the determination of
Ex: Unlawful detainer, Ex: Breach of contract,
whether or not there is indeed, to begin with, an
accion publiciana, sum of money, recovery
agreement to convey the properties in exchange for
accion reinvindicatoria, of personal property.
services rendered.
action to quiet title,
reconveyance.

Pacific Rehouse Corp. vs. Ngo (2016) interest over a property to a burden. The action for
annulment of a certificate of title threatens petitioner’s
In the instant case, although the case involves a interest in the property. (De Pedro vs. Romasan
complaint for specific performance and damages, a Development Corp)
closer perusal of petitioner's complaint reveals that it
actually prays for, inter alia, the delivery of ownership What is the significance of knowing action in
of the subject land through Bautista's execution of a personam, action in rem and quasi in rem?
deed of sale and the turnover of TCT No. T-800 in its
favor. This shows that the primary objective and The distinction is important to determine whether or
nature of case is to recover the subject property itself not jurisdiction over the person of the defendant is
and thus, is deemed to be a real action. required and consequently the type of summons to be
employed.
Thus, if the claim in an action affects property and
property rights, then the action survives the death of a Is notice or summons required in action in rem and
party-litigant. action in quasi in rem?
ACTION IN PERSONAM YES. Regardless of the nature of the action, proper

service of summons is imperative. A decision rendered
It is an action to enforce personal rights and obligation without proper service of summons suffers a defect in
against a person and is based on the jurisdiction of a jurisdiction. Respondent's institution of a proceeding
person. The purpose of action in personam is to for annulment of petitioner's certificate of title is
impose through a judgment some responsibility or sufficient to vest the court with jurisdiction over the
liability directly upon the person of the defendant. res, but it is not sufficient for the court to proceed with
the case with authority and competence.
May an action in personam be a real action at the
same time? May an in rem or quasi in rem action be converted
to action in personam?
Yes, if the action will impose personal liability on a
person with respect to a particular real property YES. If the defendant appears, the cause becomes
(Munoz vs. Yabut) mainly a suit in personam, with the added incident,
that the property attached remains liable, under the
ACTION IN REM control of the court, to answer to any demand which
may be established against the defendant by the final
It is an action against the thing (res) itself, rather than judgment of the court. But, if there is no appearance
against a person. It is not just binding on a particular of the defendant, and no service of process on him,
person, but it is binding against the whole world. the case becomes, in its essential nature, a
proceeding in rem, the only effect of which is to
Examples: Land registration cases, subject the property attached to the payment of the
declaration of nullity of marriage, action for demand which the court may find to be due to the
recognition. plaintiff. (Banco Español vs. Palanca)
"Against the thing" means that resolution of the case B. Cause of action (Rule 2)
affects the interests of others whether direct or
indirect. It also assumes that the interests — in the Rule 2, Section 1. Ordinary civil actions, basis of. –
form of rights or duties — attach to the thing which is Every ordinary civil action must be based on a cause of
the subject matter of litigation. action. (n)
ACTION QUASI IN REM Rule 2, Section 2. Cause of action, defined. – A cause

of action is the act or omission by which a party
It is an action where an individual is named as violates a right of another.
defendant and the purpose of the proceeding is to
subject the defendant's property to a burden or lien. Q: Is it a requirement that a special civil action
must also be based on a cause of action?
Examples: Complaint with attachment,
foreclosure actions, action for partition, action ➔ A: No. Section 1, Rule 2 only states original
for accounting. civil actions must be based on the cause of
action. Example of special civil action is
An action for annulment of title is a quasi in rem. It is certiorari. It is not based on a cause of action.
not an action against a person on the basis of his You cannot award damages in certiorari.
personal liability but an action that subjects a person’s Another example is interpleader. If there are

two conflicting claims and I do not know deliver; Buyer → obligation to pay
where to pay, I can file an action for
interpleader so that these two claimants ○ Violation of the right of the plaintiff —
would litigate within themselves so I know If the seller did not deliver or the buyer
where to pay. There is no cause of action. did not pay, there is a violation of the
right of the plaintiff, causing damage
ELEMENTS OF CAUSE OF ACTION to the party.
a) Right pertaining to plaintiff CAUSE OF ACTION RIGHT OF ACTION

b) Correlative Obligation of the defendant
c) Violation of plaintiff’s right A delict or wrong Right of the plaintiff to
d) Damage suffered by plaintiff committed by the institute the action
defendant
Illustrations:
Created by substantive Regulated by procedural
■ Contract of Loan law law
○ Right — The right to collect by the May not be affected by May be taken away by
lender estoppel, or statute of statute of limitation and
limitation estoppel
○ Obligation — Defendant has the
obligation to pay the debt. He
When can we say that a complaint states a cause
borrowed money, he has to pay it. He
of action?
has the obligation to pay to the
plaintiff.
A complaint states a cause of action if it sufficiently
avers the existence of the four (4) essential elements
○ Violation of the right of the plaintiff by
of a cause of action. If the allegations do not state the
the defendant — Nonpayment:
concurrence of these elements, the complaint
resulting to the damage of the
becomes vulnerable to a motion to dismiss on the
plaintiff.
ground of failure to state a cause of action.
■ Culpa Aquiliana
What is the test to determine whether a complaint
○ Right — The right to be safe / not to states a cause of action or not?
be harmed / not to be damage.
If the court can render a valid judgment based on the
○ Obligation — To be diligent. So as not allegation in the complaint, the complaint states a
to cause damage to the plaintiff. That cause of action.
is the correlative obligation of the
defendant. As a general rule, evidence aliunde should not be
considered. But annexed documents to the complaint
○ Violation of the right of the plaintiff by may be considered because they are part of the
the defendant — If the defendant complaint.
committed negligence, causing
damage to the plaintiff, then he Under the 2019 Amendment, should evidence be
violated the right of the plaintiff, also considered in determining whether the
resulting to damage. complaint alleges a cause of action or not?
■ Contract of Sale Judge Gito: I submit that evidence should be
considered in determining whether a complaint alleges
○ Right — There are two parties in a
a cause of action. Under Section 6, Rule 7, it is
contract of sale: (1) seller or (2) buyer.
required that the witnesses and the summary of their
It would depend on who would violate
respective testimony must be stated in the Complaint.
the right of another. If you are the
It is also required that their respective judicial affidavit
buyer, you have the right to expect
must be attached therewith. Also, the documentary
that the title over the thing sold would
and object evidence in support of the allegation must
be transferred to you. You have the
be stated. If this is the case, these evidence must be
right to demand delivery of the thing
taken into account in determining whether the
sold. If you are the seller, you have the
complaint alleges a cause of action. These evidence
right to be paid for the thing sold.
cannot be ignored because they are required to be
○ Obligation — Seller → obligation to attached or stated in complaint.

In fact under Section 1, Rule 8, it is provided that (a) The party joining the causes of action shall comply
every pleading shall contain in a methodical and with the rules on joinder of parties;
logical for, a plain, concise and direct statement of the
ultimate facts, including the evidence, on which the (b) The joinder shall not include special civil actions or
party pleading relies his or her defense. actions governed by special rules;
This means that evidentiary facts are now required to (c) Where the causes of action are between the same
be alleged, not only ultimate facts. Thus, evidence parties but pertain to different venues or jurisdictions,
must be considered in determining whether the the joinder may be allowed in the Regional Trial Court
complaint alleges cause of action or not. provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein;
FAILURE TO STATE A CAUSE OF ACTION v. LACK and
OF CAUSE OF ACTION
(d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate
FAILURE TO STATE A LACK amount claimed shall be the test of jurisdiction. (5a)
CAUSE OF ACTION OF CAUSE OF ACTION
Rule 2, Section 6. Misjoinder of causes of action. –
pertains to the Pertains to insufficiency Misjoinder of causes of action is not a ground for
insufficiency in the of evidence. dismissal of an action. A misjoined cause of action
allegations in the action may, on motion of a party or on the initiative of the
court, be severed and proceeded with separately.
can only be alleged as a ground for demurrer to
affirmative defense evidence SPLITTING OF ACTION
dismissal does not dismissal is a decision A single cause of action may give rise to several
constitute res judicata on the merits, thus, res remedies. The availment of these remedies is
judicata prohibited as it is tantamount to splitting of cause of
action.
Remedy is Certiorari Remedy is Appeal
Tests to ascertain whether two suits relate to a
■ When you want to file a motion to dismiss on single or common cause of action
the ground of lack of cause of action, you
usually do it after the termination of the 1) Whether the same evidence would support
presentation of evidence by the plaintiff. This the first and second causes of action.
is in the nature of demurrer to evidence under
Rule 37. 2) Whether the defenses in one case may be
used to substantiate the complaint in the
■ If the action is dismissed on the ground of other
failure to state a cause of action, the dismissal
is without prejudice. Meaning, you can file the 3) Whether the cause of action in the second
same case again. If the dismissal is based on case existed at the time of the filing of the
lack of cause of action, it is actually a decision first complaint. (Umale v. Canoga)
on the merits, therefore res judicata will apply,
and the case is dismissed with prejudice – Effect of Splitting a Cause of Action
meaning – you cannot file the same case
again because res judicata applies. If two or more suits are instituted for a single cause of
action, the filing of one or a judgment upon the merits
Rule 2, Section 4. Splitting a single cause of action; in any one is available as a ground for the dismissal of
effect of. – If two or more suits are instituted on the another.
basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a JOINDER OF CAUSES OF ACTION
ground for the dismissal of the others. (4a)
It is the assertion in one pleading, in alternative or
Rule 2, Section 5. Joinder of causes of action. – A otherwise, as many causes of action as he may have
party may in one pleading assert, in the alternative or against an opposing party.
otherwise, as many causes of action as he may have
against an opposing party, subject to the following Joinder of causes of action is subject to the
conditions:

following conditions: therein.
1) The party joining the causes of action shall ■ This condition is applicable when the
comply with the rules on joinder of parties. suit is between the same parties and
there are several causes of actions
■ This condition is only applicable when against the defendant. These causes
two or more plaintiffs or two or more of actions can be joined regardless of
defendants are joined in the pleading. their venue and jurisdiction provided
This condition is not applicable when at least one of the causes of actions
there is only one plaintiff and one falls within the jurisdiction of the RTC.
defendant.
■ It has no application when the suit is
■ Illustration: A is a passenger of the filed against different parties.
bus owned by B. The bus was
bumped by a truck driven by C. A was ■ Illustration 1: Lito encroached two
injured as a result thereof. In a parcels of land belonging to Dayo.
complaint for damages, can A joined B One parcel of land is located in
and C in the one complaint? Is there a Bataan. The other is located in
need to follow the rule on joinder of Pampanga. Can Dayo join the two
parties? YES. Because there are two parcels of land in an accion
defendants. publiciana to be filed in the RTC of
Bataan?
■ When is joinder of parties allowed?
i) The causes of action arise out Yes. Because the causes of action are
of the same transaction or against one defendant. It may be
series of transactions. joined in the RTC because one of the
causes of action is within RTC
ii) There is a common question jurisdiction and venue lies therein.
of fact and law in the parties
joined. (Sec. 6, Rule 3) ■ Illustration 1-A: Supposing the one
who encroached the land in
2) The joinder shall not include special civil Pampanga is Louie, and the land on
actions or actions governed by special Bataan was encroached by Lito, can
rules. Dayo join them as defendants in the
RTC of Bataan?
■ An ordinary civil action cannot be
joined with special civil action or No. Because the causes of action are
action governed by special rules. This against two defendants. Joinder of
is because special civil action is parties is not allowed.
governed by special rules which may
not be applicable to ordinary civil ■ Illustration 2: Lito encroached two
action. parcels of land belonging to Dayo in
Bataan one month ago. Then he
■ Illustration: A files a collection suit encroached on another land of Dayo
against B. In the same complaint he located also in Bataan with an
included a petition for judicial assessed value of 1M two years ago.
foreclosure of mortgage. Is joinder Can Dayo join the case of forcible
proper? No. The cause of action for entry and accion publiciana in one
foreclosure of mortgage cannot be complain to be filed in the RTC of
joined with collection suit because the Bataan?
former is governed by the rules on
special civil action while collection suit No. One of the causes of action is
is governed by rules on ordinary civil governed by special rule.
action.
4) Where the claims in all causes of action
3) Where the causes of actions are between are principally for recovery of money, the
the same parties but pertain to different aggregate amount claimed shall be the
venues or jurisdictions, the joinder may be test of jurisdiction.
allowed in the RTC provided one of the
causes of action falls within the ■ The total amount of the claims from
jurisdiction of said court and venue lies different causes of action will

determine the jurisdiction. (Totality right and violation of such right.

Principle)
Thus, the owner of the right violated is the real party in
■ Note: You do not apply the Totality interest as plaintiff and the one violating the right is the
Rule in real action. You only apply it in real party in interest as defendant.
action for sum of money. Remember
that we can only combine the values if Uy vs. CA, 314 SCRA 69
it is for an action for recovery of
money. That is when we compute for A mere agent, who is not an assignee of the principal,
the total amount. cannot bring suit under a deed of sale entered into in
behalf of his principal because it is the principal, not
C. Parties to civil actions (Rule 3) the agent, who is the real party in interest.
Plaintiff → The term "plaintiff" may refer to the V-Gent Inc., vs. Morning Travel and Tours (2015)
claiming party, the counter-claimant, the
cross-claimant, or the third (fourth, etc.) — party An agent’s authority to file suit cannot be inferred from
plaintiff. his authority to collect or receive payments; the grant
of special powers cannot be presumed from the grant
Defendant → The term "defendant" may refer to the of general powers.
original defending party, the defendant in a
counterclaim, the cross-defendant, or the third (fourth, Philippine Trust Company vs. Court of Appeals,
etc.) — party defendant. 320 SCRA 719
What is the effect if the party impleaded is not Should a lawful possessor be disturbed in his
authorized to be a party to suit? possession, it is the possessor, not necessarily the
owner of the property who can bring the action to
■ Where the plaintiff is not a natural person or a recover the possession. The argument that the
juridical person or an entity authorized by law, complaint states no cause of action because the suit
a motion to dismiss may be filed on the was filed by a mere possessor and not the owner is
ground that the “plaintiff has no legal not correct.
capacity to sue” under Section 1(d), Rule 16.
Spouses Laus vs. Optimum Security Services
■ Where it is the defendant who is not natural
person or a juridical person or an entity If a suit is not brought in the name of or against the
authorized by law, the complaint may be real party in interest, a motion to dismiss may be filed
dismissed on the ground the “pleading on the ground that the complaint states no cause of
asserting the claim states no cause of action.
action” or failure to state a cause of action
under Section 1(g), Rule 16 because a N.B. Under the amendment, this ground should now
complaint cannot possibly state a cause of be alleged as affirmative defense.
action against one who cannot be a party to a
civil action.
REPRESENTATIVE PARTIES
REAL PARTIES-IN-INTEREST
An action may be prosecuted or defended through a
representative.
A real party in interest is the party who stand to be
benefited and injured by the judgment of the suit, or
A representative may be a trustee of an express trust,
the party entitled to the avails of the suit.
a guardian, an executor or administrator, or a party
authorized by law or these Rules.
Unless otherwise authorized by law or the rules of
court, every action must be prosecuted or defended in
If the action is prosecuted or defended through a
the name of the real party in interest.
representative, is it required that the beneficiary
should be included in the title?
How do we determine who is the real
party-in-interest?
YES. Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a
The determination of who the real party in interest
fiduciary capacity, the beneficiary shall be included in
requires the examination of elements of a cause of
the title of the case and shall be deemed to be the real
action. A cause of action involves the existence of a
party in interest (Sec. 3, Rule 3).

Exception: An agent acting in his own name and for order of the court to implead an indispensable party,
the benefit of an undisclosed principal may sue or be pursuant to Rule 17, Section 3. The dismissal is with
sued without joining the principal except when the prejudice.
contract involves things belonging to the principal .
Any decision rendered by a court without first
INDISPENSABLE PARTIES obtaining the required jurisdiction over indispensable
parties is null and void for want of jurisdiction, not only
An indispensable party is a party in interest without as to the absent parties but even as to those present.
whom no final determination can be had of an action.
NECESSARY PARTIES
Indispensable parties shall be joined as plaintiffs or
defendants. It is one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded
Jurisprudential Illustrations: as to those already parties, or for a complete
determination or settlement of the claim subject of the
1) In a co-ownership, all co-owners thereof shall action.
be considered as indispensable parties in a
case for partition. Examples:
2) In an action for annulment of partition, all the 1) In an action for collection of debt instituted by
heirs are indispensable parties. the creditor against the surety, the principal
debtor is merely a necessary party.
3) In an action for recovery of ownership of land,
all persons claiming ownership are 2) In an action for foreclosure of REM instituted
indispensable parties. by the first mortgagee, the second mortgagee
is merely a necessary party.
4) The registered owner of a lot whose title the
plaintiff seeks to nullify is an indispensable 3) Solidarity does not make solidary obligor an
party. indispensable party in a suit filed by the
creditor against another solidary debtor.
5) A transferee of a property pendente lite is not
an indispensable party, as it would, in any
Rule 3, Section 9. Non-joinder of necessary parties to
even, be bound by the judgment against his
be pleaded. – Whenever in any pleading in which a
predecessor.
claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall
6) The person whose right to the office is
state why he is omitted. Should the court find the
challenged is an indispensable party. No
reason for the omission unmeritorious, it may order
action can proceed unless he is joined.
the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
Effect of failure to implead indispensable party
The failure to comply with the order for his inclusion,
Failure to join an indispensable party will not result in
without justifiable cause, shall be deemed a waiver of
the outright dismissal of the action. Instead, parties
the claim against such party.
may be dropped or added by the court on motion of
any party or on its own initiative at any stage of the
The non-inclusion of a necessary party does not
action and on such terms as are just. (Sec. 11,Rule 3).
prevent the court from proceeding in the action, and
the judgment rendered therein shall be without
It is when the order of the court to implead an
prejudice to the rights of such necessary party.
indispensable party goes unheeded may the case be
dismissed for failure to comply with the order of the
Court. Is misjoinder of parties or non-joinder of parties a
ground for dismissal of an action?
Judge Gito: So what you are going to do is to file a
Neither misjoinder nor non-joinder of parties is a
motion to implead the indispensable party. You file a
ground for dismissal of an action. Parties may be
motion and then if the court found out that the party
dropped or added by order of the court, on motion of
you wish to be impleaded is an indispensable party,
any party or upon its own initiative at any stage of the
the court will issue an order, ordering the plaintiff to
action and on such terms as are just. Any claim
implead such indispensable party. If it is not complied
against a misjoined party may be severed or
with, that is the time that the case may be dismissed
on the ground that there is a failure to comply with the

proceeded with separately. (Sec. 11, Rule 3) duty is to inform the court of such fact within 30 days
after such death and to give the name and address of
ALTERNATIVE DEFENDANT the legal representatives of the deceased party.
Rule 3, Section 13. Alternative defendants. – Where May the heirs of the deceased party be allowed to
the plaintiff is uncertain against who of several substitute?
persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right Yes. The heirs of the deceased may be allowed to be
to relief against one may be inconsistent with a right of substituted for the deceased without need for the
relief against the other. appointment of executor or administrator.
Illustration: Karla is a passenger of a bus owned by X Rule 3, Section 20. Action on contractual money
Co. The bus was bumped by a truck owned byY Co. claims. – When the action is for recovery of money,
Karla may join X Co. and Y Co. as defendants in a arising from contract, express or implied and the
damage suit that she may be filing. That Karla has a defendant dies before entry of final judgment in the
different cause of action against X Co which is culpa court in which the action was pending at the time of
contractual and culpa aquiliana as against Y Co is such death, it shall not be dismissed but it shall be
immaterial. The rule says plaintiff may join all them allowed to continue until final judgment. Favorable
although the right of relief against one may be judgment shall be claimed in the estate proceedings of
inconsistent with the right of relief against the other. the deceased defendant.
Rule 86, Section 5. – All claims for money against the

CLASS SUIT
decedent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all
When the subject matter of controversy is one of claims for funeral expenses and expense for the last
common or general interest to many persons so sickness of the decedent, and judgment for money
numerous that it is impracticable to join them all as against the decedent, must be filed x x x x x.
parties, a number of them which the court finds to be
sufficiently numerous and representative as to fully
Judge Gito: You have to relate Section 20, Rule 3 with
protect the interest of all concerned may sue or
Section 5 of Rule 86.
defend for the benefit of all.
So therefore, you do not execute it. You post the
Conditions for a Valid Class Suit
judgment for money as a claim in the settlement of the
estate. That’s why it is provided under Section 20,
a) The subject matter of the controversy is one
Rule 3 that favorable judgment shall be claimed in the
of common or general interest to many
estate proceedings of the deceased defendant.
persons.
There are actions which survive, Even if the party dies,
b) The parties are so numerous that it is
it will still proceed.
impracticable to bring them all before the
court.
Examples of actions which survive
c) The object of the suit is to obtain relief for or
● Action to recover real or personal property
against numerous persons.
● Actions to enforce lien thereon
● Actions to recover damages for an injury to
A class suit does not require a commonality of interest
persons
in the questions involved in the suit. What is required
● Actions arising from delicts.
by the Rules is a common or general interest in the
subject matter of the litigation. The “subject matter” of Take note that these types of actions may be
the litigation meant the physical, the things real or executed. You do not post it as a claim before the
personal, the money, lands, chattels, and the like, in settlement of the estate. You can execute this
relation to the suit which is prosecuted and not the judgment. This judgment can take preference, not
delict or wrong committed by the defendant (Mathay unlike judgment for sum of money.
vs. Consolidated Bank & Trust Co.)
Judgment for sum of money cannot be executed,
DEATH OF PARTY cannot be enforced through a motion for execution.
You file it as a claim before the settlement of the
What is the duty of the lawyer in case a party dies? estate.
If the party dies and the claim is not extinguished, his Examples of actions which do not survive

● Nullity of marriage status of the plaintiff, or any property

● Action for support of said defendant located in the
● Legal separation Philippines.
● Actions for recognition
VENUE IN PERSONAL ACTION
D. Venue (Rule 4)
Sps. Saraza vs. Francisco, 2013
What is the basic consideration in determining the
venue of the action? As to the issue of venue, the petitioners' argument
that the action should have been instituted with the
Rule 4, Section 1. Venue of real actions. – Actions RTC of Makati City, and not the RTC of Imus, Cavite,
affecting title to or possession of real property, or is misplaced. Although the end result of the
interest therein, shall be commenced and tried in the respondent's claim was the transfer of the subject
proper court which has jurisdiction over the area property to his name, the suit was still essentially for
wherein the real property involved, or a portion specific performance, a personal action, because it
thereof, is situated. sought Fernando's execution of a deed of absolute
sale based on a contract which he had previously
Forcible entry and detainer actions shall be made.
commenced and tried in the municipal trial court of
the municipality or city wherein the real property BPI Family Savings Bank, Inc. vs. Yujuico, 2015
involved, or a portion thereof, is situated.
Based on the distinctions between real and personal
Rule 4, Section 2. Venue of personal actions. – All actions, an action to recover the deficiency after the
other actions may be commenced and tried where the extrajudicial foreclosure of the real property mortgage
plaintiff or any of the principal plaintiffs resides, or is a personal action, for it does not affect title to or
where the defendant or any of the principal possession of real property, or any interest therein.
defendants resides, or in the case of a nonresident
defendant where he may be found, at the election of VENUE IN REAL ACTION
the plaintiff.
Gochan vs. Gochan
The venue of the action would be determined is the
Where the complaint is denominated as one for
determination of whether an action is real or personal.
specific performance, but nonetheless prays for
issuance of a deed of sale of a land to enable the
■ Real Action — proper court which has
plaintiff to acquire ownership thereof, its primary
jurisdiction over the area wherein the real
objective and nature is one to recover the parcel of
property involved, or a portion thereof, is
land itself and thus, is deemed a real action.
situated.
Samson vs Sps. Gabor, 2014
■ Personal Action — where the plaintiff or any
of the principal plaintiffs resides, or where the
The action is for the return of the property or its value
defendant or any of the principal defendants
on the basis of co-ownership. The Court held that
resides, or in the case of a non-resident
while the complaint of the petitioner is for the recovery
defendant where he may be found, at the
of the property or its value, the said complaint is
election of the plaintiff.
actually anchored on plaintiffs’ claim of ownership
over a portion of the real property of the subject
○ Residence = place of abode, whether
property. Hence, a real action.
permanent or temporary, of the
plaintiff or the defendant.
When will the rule on venue not apply?
■ Forcible entry and detainer actions —
Municipal Trial Court of the municipality or city 1) In those cases where a specific rule or law
wherein the real property involved, or a provides otherwise; or
portion thereof, is situated.
2) Where the parties have validly agreed in
■ Against non-resident — Court of the place writing before the filing of the action on the
where the plaintiff resides, or where the exclusive venue thereof.
property or any portion thereof is situated or
found. STIPULATIONS ON VENUE
○ When the action affects the personal The parties may agree on a specific venue which

could be in a place where neither of them resides. PLEADINGS ALLOWED
In real actions, like unlawful detainer, the parties may ■ Complaint

stipulate on a venue other than the place where the
real property is situated. ○ The complaint is the pleading alleging
the plaintiff’s or claiming party’s cause
Requisites on stipulations on exclusive
○ or causes of action. The names and
a) It must be in writing residences of the plaintiff and
defendant must be stated in the
b) It must be made before filing of an action complaint.
c) The agreement must be exclusive ■ Answer
Agreement on venue may be: ○ An answer is a pleading in which a

defending party sets forth his or her
1. Restrictive — The suit can only be filed in defenses.
the place agreed upon by the parties.
■ Counterclaim
2. Permissive — The place agreed upon is in
addition to the place provided for in the ○ A counterclaim is any claim which a
Rules. defending party may have against an
opposing party.
Illustrations:
■ Cross-claim
■ “Parties agree to sue and be sued in courts of
Manila” – the SC ruled that it is not restrictive ○ A cross-claim is any claim by one
but only permissive (Polytrade Corp. vs. Blanco) party against a co-party arising out of
the transaction or occurrence that is
■ “All suits arising out of this agreement shall be the subject matter either of the
filed within the proper courts of Quezon City” original action or of a counterclaim
– SC ruled that it is only permissive therein. Such cross-claim may cover
(Unimasters Conglomeration, Inc., vs. CA) all or part of the original claim.
■ “The agreed venue shall be in the City of ■ Third party complaint

Manila” – permissive (Mangila vs. CA)
○ A third (fourth, etc.)-party complaint is
To make it exclusive there must be words with a claim that a defending party may,
restrictive meaning. with leave of court, file against a
person not a party to the action,
Examples of words with restrictive meanings are: called the third (fourth, etc.)-party
“only”, “solely”, “exclusive in this court”, “in no other defendant, for contribution, indemnity,
courts, save..”, “particularly”, “no where else subrogation or any other relief, in
but/except” or words of equal import (Pacific respect of his or her opponent’s claim.
Consultants International Asia, Inc., vs. Schonfeld)
■ Complaint-in-intervention
PLEASE TAKE NOTE: A restrictive stipulation on
venue is not binding when the validity of the contract ■ Reply
is assailed.
○ A reply is a pleading, the office or
There is no motu proprio dismissal based on improper function of which is to deny, or allege
venue except cases under the rules on summary facts in denial or avoidance of new
procedure. matters alleged in, or relating to, said
actionable document.
E. Pleadings
1. Kinds (Rule 6) COMPLAINT
Pleadings are written statements of the respective

The filing of the complaint in court signifies the
claims and defenses of the parties submitted to the
commencement of the civil action.
court for appropriate judgment.

Take note: It is not simply the filing of the complaint or person of the defending party;
appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with the 2. That the venue is improperly laid;
jurisdiction over the subject matter or nature of the
action. 3. That the plaintiff has no legal capacity to sue;
What is the rule on payment of docket fee? 4. That the pleading asserting the claim states
no cause of action; and
The rule on the payment of docket fee is liberal. If the
initiatory pleading is not accompanied by a correct 5. That the condition precedent for filing the
docket fee, the court may allow payment of the fee claim has not been complied with.
within reasonable time, but in no case beyond the
applicable prescriptive period. These grounds which the court does NOT need to
conduct a summary hearing. Here, the court shall
It will not lead to automatic dismissal of the complaint motu proprio resolve the above affirmative defenses
within thirty (30) calendar days from the filing of the
ANSWER answer.
Judge Gito: So if you are asked if summary hearing is

It is one which the defending party sets forth his or her
needed, your answer would be it depends on the
defenses.
ground. If the grounds are those mentioned in Section
12 of Rule 8, hindi na kailangan ng hearing. Kapag
Kinds of Defenses
ang affirmative defense ay under Sec. 5 (b) of Rule 6,
pwedeng magkaroon ng summary hearing for a period
1) Negative Defenses — It is a specific denial of
of 15 days. Paano kapag magkahalo? Section 5(b)
a material fact or facts alleged in the pleading
and Section 12 of Rule 8? Edi may summary hearing.
of the claimant essential to his cause or
causes of action.
FAILURE TO ALLEGE AFFIRMATIVE DEFENSE
2) Affirmative Defenses — It is an allegation of
Failure to raise the affirmative defenses at the earliest
new matter, which, while hypothetically
opportunity shall constitute a waiver thereof.
admitting the material allegations in the
pleading of the claimant, would nevertheless
Please take note that if you have affirmative defenses,
prevent or bar recovery from him.
you have to allege the same in your answer because
failure to allege defense is a waiver thereof.
AFFIRMATIVE DEFENSES
But there are exceptions:
Sec. 5(b), Rule 6:
1. lack of jurisdiction over the subject matter;
1. fraud, 2. litis pendencia;
2. statute of limitations, 3. res judicata; and
3. release, 4. prescription.
4. payment,
5. illegality, They are not waived despite the fact that they are not
6. statute of frauds, alleged as affirmative defenses.
7. estoppel,
8. former recovery, The court has 2 alternatives insofar as affirmative
9. discharge in bankruptcy, and defenses are concerned – either to:
10. any other matter by way of confession and
avoidance. ● GRANT it, in which case, the complaint will be
dismissed (MR, Certiorari, Prohibition,
Here, the court may conduct a summary hearing Mandamus and even Appeal is allowed);
within fifteen (15) calendar days from the filing of the
answer. Such affirmative defenses shall be resolved ● DENY it, in which case, the case will proceed
by the court within thirty (30) calendar days from the (MR, Certiorari, Prohibition, Mandamus is not
termination of the summary hearing. allowed).
Sec. 12, Rule 8: The prohibition on filing of motion for reconsideration,

certiorari,prohibition, and mandamus, with respect to
1. That the court has no jurisdiction over the affirmative defenses is limited to a situation where the
court denies the affirmative defense. If the court

grants the affirmative defense, then the adverse party threshold, the defendant has two options: either to
which is the plaintiff may file a motion for consider the claim as permissive or just waive the
reconsideration. excess.
COUNTERCLAIM In permissive counterclaim, since it is an independent

claim, you need to have an initiatory pleading – there
must be verification, and you must follow the
A counterclaim is any claim which a defending party
certification against forum shopping.
may have against an opposing party.
A files an ejectment suit against B before the MTC. B
COMPULSORY COUNTERCLAIM filed an answer with counterclaim. B claims that he
should be reimbursed for the improvement he
Elements of a compulsory counterclaim: introduced to the real property of A.The amount of
counterclaim that B demands is 1M. Can the MTC
1) It arises out of or is necessarily connected entertain the counterclaim of B?
with the transaction or occurrence which is
the subject matter of the opposing party's ➔ A: The MTC cannot entertain the entire
claim. counterclaim of B. The entire counterclaim of B
is beyond the jurisdiction of the MTC. It is
2) It does not require for its adjudication the provided in Section 7, Rule 6 that the
presence of third parties over whom the court counterclaim must be within the jurisdiction of
cannot acquire jurisdiction. the court both as to the amount and nature
thereof. The counterclaim that can be set up will
3) Such counterclaim must be within the only be limited to the jurisdictional amount of
jurisdiction of the court both as to amount and the MTC.
nature thereof.
A files a recovery of possession case against B before
The most important element of a compulsory the RTC. B filed an answer with counterclaim. B
counterclaim is the logical relationship between the claims that he should be reimbursed for the
compulsory counterclaim with the main claim. improvement he introduced to the real property of A.
The amount of counterclaim that B demands is 200K.
If the original action was filed before the RTC, the Can the RTC entertain the counterclaim of B?
counterclaim may be considered compulsory
REGARDLESS OF THE AMOUNT. ➔ A: Yes, the RTC can entertain the counterclaim of
B. While the counterclaim of B is not within the
A compulsory counterclaim not raised in the same jurisdictional amount of RTC, it can still
action is barred, unless otherwise allowed by these entertain the counterclaim of B. It is provided in
Rules — a counterclaim which matured after serving Section 7, Rule 6 that if the original action is
his pleading may be set up by way of supplemental before the RTC, the counterclaim may be
counterclaim. considered compulsory regardless of the
amount.
Payment of docket fee is not required.
Can a party file a motion to dismiss with
counterclaim?
PERMISSIVE COUNTERCLAIM
NO. If the dismissal of the main action results in the
If it is not compulsory counterclaim, then it is dismissal of the counterclaim already filed, it stands to
permissive counterclaim. reason that the filing of a motion to dismiss the
complaint is an implied waiver of the compulsory
A counterclaim is permissive if it does not arise out or counterclaim because the grant of the motion
is not necessarily connected with the subject matter of ultimately results in the dismissal of the complaint.
the opposing party’s claim. It is essentially an
independent claim that may be filed separately in
CROSSCLAIM
another case.
If the amount of the counterclaim exceeds the A cross-claim must be related to the original action or
jurisdiction of the court, the counterclaim is not counter-claim therein. The rules says the cross-claim
compulsory, but permissive. must arise “out of the transaction or occurrence that is
the subject matter either of the original action or of a
The counterclaim set up will only be limited to the counterclaim therein.”
jurisdictional amount of the MTC. If it exceeds the

Can cross-claim be set-up for the first time on pleading the content of the document.
appeal?
Next, the original or a copy thereof shall be attached
NO. While defendant may have a definite cause of to the pleading – which shall be deemed to be a part
action against the co-defendant, it cannot succeed in of the pleading. You must attach the document to the
seeking judicial sanction against the latter if the pleading.
records disclose that no cross-claim was interposed,
nor was there a prayer that the co-defendant should What is the effect if the plaintiff failed to file a reply
be liable for all the claims that may be adjudged in when the defending party attaches actionable
favor of the plaintiff. documents upon which he or she bases his or her
defense?
May cross-claim which matured after filing the
answer be still set-up? Section 8, Rule 8 will operate. Failure on the part of
the plaintiff to file a reply when the defending party
YES. Under Section 9, Rule 11, a cross-claim which attaches actionable documents upon which he or she
matured or was acquired by a party after serving his bases his or her defense is an implied admission of
pleading may, with permission from the court, be the due execution and genuineness of the said
presented as a cross-claim by supplemental pleading actionable documents.
before judgment.
Thus, the plaintiff will not be permitted to present
May cross-claim which was not set up because of evidence that will be contrary to his implied
oversight be still set up? admission.
YES. Under Section 10, Rule 11, when pleader fails to THIRD PARTY COMPLAINT
set up a cross-claim through oversight, inadvertence
or excusable neglect, or when justice requires, he
A third (fourth, etc.)-party complaint is a claim that a
may, by leave of court, set up the cross-claim by
defending party may, with leave of court, file against a
amendment before judgment.
person not a party to the action, called the third
(fourth, etc.)-party defendant, for contribution,
REPLY indemnity, subrogation or any other relief, in
respect of his opponent's claim. (CISO in respect of
All new matters alleged in the answer are deemed his opponent’s claim)
controverted. Thus, as a general rule, filing of reply is
not required. The third party complaint (fourth, etc.,) shall be
denied if:
If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall a) the third (fourth, etc.)- party defendant cannot
be set forth in an amended or supplemental be located within thirty (30) calendar days
complaint. from the grant of such leave;
However, the plaintiff may file a reply only if the b) matters extraneous to the issue in the
defending party attaches an actionable document principal case are raised; or
to his or her answer. The plaintiff, therefore, has to
file a Reply to deny under oath the due execution or c) the effect would be to introduce a new and
genuineness of the actionable document attached to separate controversy into the action.
the Answer of the defending party.
It can be gleaned from the amendment that somehow,
What is an actionable document? the third (fourth, etc.,) party complaint must at least be
related to the main action because the new Section 11
If your cause of action is based on a document - that provides that when the matters are extraneous to the
is an actionable document. If the document is the issued in the principal case or the effect of the third
basis of your action/claim or defenses, that document (fourth, etc.,) party complaint would be to introduce a
is an actionable document. new and separate controversy into the action, then the
third (fourth, etc.,) party complaint must be denied
How do you allege an action or defense which is admission.
based on an actionable document?
Illustration: B and C borrowed P400,000 from A. B,
First, the substance of such instrument or document who received the money from A, gave C P200,000. C
shall be set forth in the pleading. You allege in that in turn, gave P100,000, by way of loan, to D. If a
complaint is filed by A against C, should the third

party complaint filed by C against D be allowed? what he certifies?
➔ A: No. Because the third-party claim of C against The lawyer may receive sanctions from the Court if he
D is totally unrelated to the main action. The or she violates the rule or reneges on his or her
matters raised in the third party complaint is certification. The sanction may be extended to the law
extraneous to the issue in the principal case. firm which is jointly and severally liable for a violation
committed by its partner, associate, or employee.
Please take NOTE: Trial courts are not especially
enjoined by law to admit a third party complaint. They VERIFICATION
are vested with discretion to allow or disallow a party
to an action to implead additional party. Thus, a Except when otherwise specifically required by law or
defendant has no vested right to file a third- party rule, pleadings need not be under oath, verified or
complaint. accompanied by affidavit.
2. Parts and Contents of a pleading (Rule 7) A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification. The authorization
of the affiant to act on behalf of a party, whether in the
form of a secretary’s certificate or a special power of
attorney, should be attached to the pleading.
This requirement is applicable when the one who

would verify the pleading is not the party but the one
who was authorized by the party.
The requirement that proof of authority of the affiant

who verified for and in behalf of the party must be
attached to the pleading was introduced to address,
once and for all, the persistent issue on whether the
affiant has the authority to verify the pleading for and
in behalf of the party.
Significance of signature of counsel
What should be attested in the verification?
The signature of counsel constitutes a certificate by
him or her that he or she has read the pleading and
1) The allegations in the pleading are true and
document; that to the best of his or her knowledge,
correct based on his or her personal
information, and belief, formed after an inquiry
knowledge, or based on authentic documents;
reasonable under the circumstances:
2) The pleading is not filed to harass, cause
1) It is not being presented for any improper unnecessary delay, or needlessly increase the
purpose, such as to harass, cause cost of litigation; and
unnecessary delay, or needlessly increase the
cost of litigation; 3) The factual allegations therein have
evidentiary support or, if specifically so
2) The claims, defenses, and other legal identified, will likewise have evidentiary
contentions are warranted by existing law support after a reasonable opportunity for
or jurisprudence, or by a non-frivolous discovery.
argument for extending, modifying, or
reversing existing jurisprudence; Please take NOTE:
3) The factual contentions have evidentiary A pleading required to be verified that contains a
support or, if specifically so identified, will verification based on “information and belief,” or upon
likely have evidentiary support after availment “knowledge, information and belief,” or lacks a proper
of the modes of discovery under these [R]ules; verification, shall be treated as an unsigned pleading.
and
However:
4) The denials of factual contentions are
warranted on the evidence or, if specifically Defect in verification does not necessarily render the
so identified, are reasonably based on belief pleading defective. It is only a formal defect and not a
or a lack of information. jurisdictional requirement. The requirement is a
condition affecting only the form of the pleading
What is the consequence if the lawyer violates

(Benedicto-Munoz vs. Cacho-Olivares) provided that the judicial affidavits of said witnesses
shall be attached to the pleading and form an integral
CERTIFICATION AGAINST FORUM SHOPPING part thereof. Only witnesses whose judicial affidavits
are attached to the pleading shall be presented by the
It is the plaintiff or principal party who executes the parties during trial. Except if a party presents
certification under oath. It must be executed by the meritorious reasons as basis for the admission of
party pleader, not his counsel. If, however, for additional witnesses, no other witness or affidavit
justifiable reason, if the party-pleader is unable to shall be heard or admitted by the court; and
sign, he must execute a special power of attorney
designating his counsel of record to sign in his behalf. (c) Documentary and object evidence in support of the
allegations contained in the pleading.
With respect to a corporation, the board of directors or
by one who is duly authorized by resolution of the 3. Manner of making allegations (Rule 8)
board of directors; otherwise, the complaint will have
to be dismissed.
Rule 8, Section 1. In general. – Every pleading shall
contain in a methodical and logical form, a plain,
What is the rule if there are several plaintiffs or
concise and direct statement of the ultimate facts,
petitioners?
including the evidence on which the party pleading
relies for his [or her] claim or defense, as the case may
General Rule: The certification against forum shopping
be.
must be signed by all the plaintiffs or petitioners in a
case; otherwise, those who did not sign will be
If a cause of action [or] defense relied on is based on
dropped as parties to the case.
law, the pertinent provisions thereof and their
applicability to him or her shall be clearly and
Exception: When plaintiffs share a common interest
concisely stated.
and invoke a common cause of action or defense, the
signature of only one of them substantially comply
with the rules. Thus, in every pleading, you must include both the
ultimate facts and the evidentiary facts.
Effects of non-compliance with the rule on
certification against forum shopping Matters which can be averred generally:
■ Failure to comply with the foregoing 1) Condition precedent (Sec. 3, Rule 8)

requirements shall not be curable by mere 2) Capacity to sue or be sued (Sec. 4, Rule 8)
amendment of the complaint or other initiatory 3) Judgment (Sec. 6, Rule 8)
pleading but shall be cause for the dismissal 4) Malice, intent, knowledge or other condition of
of the case without prejudice, unless the mind (Sec. 5, Rule 8)
otherwise provided, upon motion and after 5) Official document or act (Sec. 9, Rule 8)
hearing.
Matters which must be specifically averred
■ The submission of a false certification or
non-compliance with any of the undertakings 1) In all averments of fraud or mistake, the
therein shall constitute indirect contempt of circumstances constituting fraud or mistake
court, without prejudice to the corresponding must be stated with particularity (Section 5,
administrative and criminal actions. Rule 8).
■ If the acts of the party or his [or her] counsel It is not enough for the complaint to allege
clearly constitute willful and deliberate forum that he was defrauded by the defendant.
shopping, the same shall be ground for Under the provision, the complaint must state
summary dismissal with prejudice and shall with particularity the fraudulent acts of the
constitute direct contempt, as well as a cause adverse party.
for administrative sanctions.
Is pleading different causes of action or defense
Rule 7, Section 6. Contents. – Every pleading stating a permissible?
party’s claims or defenses shall, in addition to those
mandated by Section 2, Rule 7, state the following: YES. Under Section 2, Rule 8, it is provided that “a
party may set forth two or more statements of a claim
(a) Names of witnesses who will be presented to prove or defense alternatively or hypothetically, either in one
a party’s claim or defense; cause of action or defense or in separate causes of
action or defenses.”
(b) Summary of the witnesses’ intended testimonies,

Example: Let us say that you are a passenger of a taxi. defense?

And the taxi that you are on board was bumped by a
truck from behind. You do not know who is ultimately The plaintiff must file a reply and in that reply, he must
liable so you file a case against the common carrier, the deny under oath the due execution and genuineness
owner of the taxi and against the owner of the truck that of the actionable document which is the basis of the
bumped the taxi that you were riding. So anong cause of answer of the defendant.
action mo doon sa owner ng taxi? Breach of contract of
carriage. Ano ang cause of action mo doon sa owner What defenses are cut off by the implied
ng truck? Negligence. So different causes of action. Can admission?
you join them in one complaint? The answer is yes. Is
there a proper joinder of parties? The answer is yes ➢ Forgery of document
because it arises from one transaction or series of
transactions. ➢ Lack of authority to execute the document
ACTION OR DEFENSE BASED ON ACTIONABLE ➢ The party charged signed the document in
DOCUMENT some other capacity than that alleged in the
pleading
Rule 8, Section 7. Action or defense based on
document. – Whenever an action or defense is based ➢ The document was never delivered
upon a written instrument or document, the substance
of such instrument or document shall be set forth in ➢ Document was not in the words and figures as
the pleading, and the original or a copy thereof shall set out in the pleading
be attached to the pleading as an exhibit, which shall
be deemed to be a part of the pleading. (7a) Imperial Textile Mills vs. CA (1990)
Rule 8, Section 8. How to contest such documents. – No rule is more settled than that in an action based on
When an action or defense is founded upon a written a written instrument attached to the complaint, if the
instrument, or attached to the corresponding pleading defendant fails to specifically deny under oath the
as provided in the preceding section, the genuineness genuineness and due execution of the instrument, the
and due execution of the instrument shall be deemed same is deemed admitted. 5
admitted unless the adverse party, under oath
specifically denies them, and sets forth what he or Section 7, Rule 8 of the Rules of Court is explicit in
she claims to be the facts; but the requirement of an that there are two ways of pleading an actionable
oath does not apply when the adverse party does not document, namely:
appear to be a party to the instrument or when
compliance with an order for an inspection of the (a) by alleging the substance of such written
original instrument is refused. instrument in the pleading and attaching a copy
thereof to the pleading; and
So in alleging an actionable document, you have to
state the contents of the actionable document on your (b) by copying the instrument in the pleading.
pleading and then attach the copy thereof to your
complaint. The same is true with an answer. The complaint in the present case complied with the
first situation under paragraph (a). The complaint
Remember: If there is failure to deny the due alleged the substance of the promissory note subject
execution and genuineness of the actionable of the litigation and a copy of the promissory note was
document, it is deemed an implied admission of the attached.
due execution and genuineness of the actionable
document. That is already a judicial admission. A party There is no question likewise that the petitioner failed
who made such judicial admission is not permitted to to specifically deny under oath the genuineness and
present evidence that is contrary to his judicial due execution of the promissory note subject of the
admission. complaint. By its omission, petitioner clearly admitted
the genuineness and due execution of the document
Thus for instance, the defendant cannot anymore and that the party whose signature appears thereon
present evidence to prove that the signature had indeed signed the same and that he has the
appearing in the PN is not his signature because he authority to sign the same and that the agreement
has already deemed admitted the due execution and between the parties is what was in words and figures
genuineness of the actionable document. in the document. Defenses which are inconsistent with
the due execution and genuineness of the written
What if it is the defendant who alleged an instrument are cut-off by such admission.
actionable document upon which he based his

MANNER OF DENYING AN ALLEGATION that you are denying the allegation for lack of
knowledge. But if you have some information about it
1) By specifically denying the allegation and or it can be implied that you cannot deny the
setting forth the substance upon which one allegation for lack of knowledge because you know it
relies his denial. for a fact then the allegations will be deemed
admitted.
■ Example: may allegation ang
complaint then nag file ka ng answer. NEGATIVE PREGNANT
Tapos may Allegation #4. Nakalagay
sa answer, “Defendant specifically It is a negative implying also an affirmative and which,
denies the allegation in paragraph 4 of although stated in a negative form, really admits the
the complaint for being untrue, the truth allegations to which it relates.
of the matter being that….” Then state
what you claim to be the truth. That is Dineny mo pero yung denial mo is actually an
the first form of denial. admission. For example, may allegation sa complaint
“Defendant may utang ka sa plaintiff sa halagang 1M
2) By specifically denying some part of the pesos.” Dineny mo sa iyong answer. “Hindi naman 1M ang
allegation and admitting the rest. utang ko.” What does it imply? May utang ka pero hindi
1M. That is negative pregnant. That is an admission.
■ Example: “Part of the allegation in
paragraph 4 of the complaint is admitted It is a form of negative expression which carries with it
insofar as is alleged but the rest of the an affirmation or at least an implication of some kind
allegation is denied, the truth being that favorable to the adverse party. (Valdez vs. Dabon, Jr.)
you allege what you claim to be the
truth.” While you are denying the allegation but implied from
your denial that you are liable to the plaintiff but of
3) By specifically denying the allegation for lack course, in a different amount. That is an admission of
of knowledge sufficient to form a belief as to liability. Therefore, according to jurisprudence,
the truth or falsity of the allegation. negative pregnant is not a specific denial. It is an
admission.
■ Example: “Paragraph 4 of the complaint
is specifically denied for lack of 4. Effect of failure to plead (Rule 9)
knowledge sufficient to form a belief as
to the truth or falsity thereof.”
Rule 9, Section 1. Defenses and objections not
Remember: You cannot just deny the complaint by pleaded. – Defenses and objections not pleaded either
saying “I do not know everything about it.” That is in a motion to dismiss or in the answer are deemed
general denial. In essence, the requirement of the rule waived. However, when it appears from the pleadings
is that the denial must be specific and it must be in or the evidence on record that the court has no
accordance with Section 10 of Rule 8. jurisdiction over the subject matter, that there is
another action pending between the same parties for
If there is noncompliance with the rule on denial, the same cause, or that the action is barred by a prior
the effect is that it is an implied admission of the judgment or by statute of limitations, the court shall
allegations in the complaint. And if that is the case, dismiss the claim.
the plaintiff can already file for a motion for
judgment on the pleading. There is no more trial Rule, 9 Section 2. Compulsory counterclaim, or
because there is no more issue of fact because the cross-claim, not set up barred. – A compulsory
allegations in the complaint are not denied. They are counterclaim,or a cross-claim, not set up shall be
deemed admitted. So what is the trial for? Wala na barred.
kasi na-admit na lahat kaya dapat alamin kung paano
mag-deny. General Rule: Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
When the defendant alleges having no knowledge deemed waived.
sufficient to form a belief as to the truth of the
allegation of the other party but such matters are Exceptions:
plainly and necessarily within the defendant’s
knowledge, a claim of “ignorance or lack of 1) Lack of jurisdiction over the subject matter
information” will not be considered a specific denial, 2) Litis pendencia
hence implied admission. 3) Res judicata
4) Prescription
Kapag nag deny ka for lack of knowledge, be sure

period provided by the Rule.

DEFAULT
Q: May plaintiff be declared in default? Supposing
If the defending party fails to answer within the time the defendant alleged a permissive counterclaim.
allowed therefor, the court shall, upon motion of the What should the plaintiff do? (Because a permissive
claiming party with notice to the defending party, and counterclaim is considered an independent complaint
proof of such failure, declare the defending party in by the defendant against the plaintiff which is not
default. Thereupon, the court shall proceed to render related to the subject matter) Is the plaintiff required
judgment granting the claimant such relief as his to file an answer on the permissive counterclaim?
pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such YES. Because a permissive counterclaim is
reception of evidence may be delegated to the clerk of considered to be a complaint filed by the defendant
court (Section 3, Rule 9). against the plaintiff, the plaintiff has to file an answer.
If the plaintiff failed to file an answer to the permissive
Period to file Answer to Complaint → 30 calendar counterclaim, then the plaintiff may be declared in
days after service of summons, unless a different default with respect to the permissive counterclaim.
period is fixed by the court. (Rule 11)
EFFECT OF DECLARATION OF DEFAULT
REQUISITES BEFORE ONE MAY BE DECLARED IN
DEFAULT It will allow the plaintiff to present evidence ex-parte.
But the other party, the defendant (who is in default),
1) Jurisdiction over the person is entitled to notice of the subsequent proceeding but
2) Filing of motion he is not allowed to take part in the proceeding. Only
3) Proof that defending party failed to answer the plaintiff will be allowed to present evidence.
within the period
4) Must be notified of the motion Court shall render judgment granting the claimant
5) There must be hearing, optional on the part of such relief as his pleading may warrant, unless the
the court court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be
Q: Why optional? (referring to 5th requisite) What delegated to the clerk of court.
kind of motion is a motion to declare in default? Is
it a litigious motion or non-litigious motion? A judgment rendered against a party in default shall
not exceed the amount or be different in kind from that
➔ A: It is a litigious motion. prayed for nor award unliquidated damages.
Prior to the amendment, a hearing was mandatory, What should the court do if some of the
ngayon optional na. Optional on the part of the court. defendants file an answer and others do not and
Pero the fact that the defendant failed to file an the complaint asserts common cause of action
answer, hindi automatic yang declaration of default. against all the defendants?
There must be motion from the plaintiff. There must be
proof that the party failed to file an answer within the When a pleading asserting a claim states a common
period and that the other party must be notified of the cause of action against several defending parties,
motion. some of whom answer and the others fail to do so, the
court shall try the case against all upon the answers
thus filed and render judgment upon the evidence
Spouses de los Santos v. Carpio
presented.
Clearly, there are three requirements which must be
Judge Gito: So will you declare the other defendants
complied with by the claiming party before the court
in default if that is the case? The answer is no.
may declare the defending party in default, to wit:
Because the case shall be tried upon the answer filed
by the answering defendant. It will benefit those who
(1) the claiming party must file a motion
are not answering. But only if the cause of action in
asking the court to declare the defending party in
the complaint is common among the defendants.
default;
Answer was filed beyond the reglementary period
(2) the defending party must be notified of
but before declaration of default
the motion to declare him in default;
If the answer is filed prior to the declaration of default,
(3) the claiming party must prove that the
the court must be liberal about it. The court, as much
defending party has failed to answer within the
as possible, would not declare the defendant in

default, despite the fact that the answer was filed to accept the amended complaint; otherwise,
beyond the reglementary period. mandamus would lie against it. In other words, the
trial court’s duty to admit the amended complaint was
The Court can still admit the answer even if it was filed purely ministerial. (Alpine Lending Investor vs. Corpuz)
out of time because, at the time of filing, defendant
were not yet declared in default nor was a motion to Judge Gito: Insofar as a complaint is concerned, so
declare them in default ever filed (Sablas vs. Sablas) long as there is yet no responsive pleading, then the
complaint may be amended as a matter of right. Now
REMEDIES OF DEFENDING PARTY DECLARED IN if a responsive pleading (answer) has already been
DEFAULT filed, then amendment is not anymore a matter of right
but you have to file a motion for leave of court to
1) Remedy before judgment but there is admit amended pleading.
already declaration of default
May the complaint be amended as a matter of right
➢ File a motion under oath to set aside after a Motion to Dismiss is served?
the order of default upon proper
showing that his failure to answer YES. Because a Motion to dismiss is not a responsive
was due to fraud (extrinsic fraud), pleading and its filing does not preclude the exercise
accident, mistake or excusable of the plaintiff’s right to amend his complaint. (Alpine
negligence and that he has a Lending Investor vs. Corpuz)
meritorious defense.
Even if you file a motion to dismiss, the plaintiff can
2) Remedy after judgment and before still file his amended complaint as a matter of right
judgment becomes final and executory because motion to dismiss is not a responsive
pleading.
➢ File a motion for new trial under Rule
37 or appeal the judgment if contrary If the motion to dismiss is granted, may a
to evidence or law. complaint be amended as a matter of right?
3) Remedy after judgment becomes final and YES. It follows that respondent, as a plaintiff, may file
executory an amended complaint even after the original
complaint was ordered dismissed, provided that the
➢ File Petition for Relief under Rule 38 order of dismissal is not yet final,as in this case.
(Bautista vs. Maya-Maya Cottages)
May a party be declared in default for other
reasons? May amendment be made to correct the
jurisdictional defect before responsive pleading is
YES. filed?
1) If a disobedient party refuses to obey an order YES, because the amendment is still a matter of right
requiring him to comply with various modes of because there is still yet not responsive pleading.
discovery (Sec. 3 (c), Rule 29).
A complaint was filed for forcible entry before the
2) If a party or officer or managing agent of a
RTC. Defendant filed a motion to dismiss for lack of
party fails to appear before the officer who is
jurisdiction. Plaintiff amended his complaint and
to take his deposition, or a party fails to serve
transformed it into quieting of title. The SC ruled that it
answer to interrogatories (Sec. 5,Rule 29).
may be allowed because amendment is a matter of
5. Amended and supplemental pleadings (Rule right. (Gumabay v. Barlin)
10)
AMENDMENT WITH LEAVE OF COURT
AMENDMENT A MATTER OF RIGHT
Rule 10, Section 3. Amendments by leave of court. –
Except as provided in the next preceding [S]ection,
Rule 10, Section 2. Amendments as a matter of right.
substantial amendments may be made only upon leave
– A party may amend his [or her] pleading once as a
of court. But such leave shall be refused if it appears to
matter of right at any time before a responsive
the court that the motion was made with intent to
pleading is served or, in the case of a reply, at any time
delay [or] confer jurisdiction on the court, or the
within ten (10) calendar days after it is served.
pleading stated no cause of action from the beginning
which could be amended. Orders of the court upon the
Considering that respondent has the right to amend matters provided in this [S]ection shall be made upon
her complaint, it is the correlative duty of the trial court

motion filed in court, and after notice to the adverse and the complaint may accordingly be amended
party, and an opportunity to be heard. thereafter.
Section 3 of the 2019 Amendments emphasizes that if It thus follows that a complaint whose cause of action
respondent pleading has already been filed,substantial has not yet accrued cannot be cured or remedied by
amendment may be made only by leave of court. an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the
However, leave of court shall be denied if the case is pending. Such an action is prematurely
motion was made: brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion
1) with the intent to delay; seasonably filed by the defendant. The underlying
2) confer jurisdiction on the court; reason for this rule is that a person should not be
3) or the pleading stated no cause of action from summoned before the public tribunals to answer for
the beginning which could be amended. complaints which are immature.
May amendment be made to correct the Is summons required to be issued after a

jurisdictional defect after responsive pleading is complaint is amended?
filed?
If the summons have already been served, there is NO
NO. Complaint cannot be amended to confer need for the issuance of another summons because
jurisdiction on the court in which it was filed, if the the Court has already acquired jurisdiction over the
cause of action originally set forth was not within the person of the defendant.
court’s jurisdiction. This is because the court must
first acquire jurisdiction over the subject matter in However, if the complaint was amended prior to the
order to act validly on the same including its service of summons, new summons are needed for
amendment. the amended complaint. (Vlason vs. Enterprise Corp.
vs. CA)
[NEW RULE] No need to file motion to amend to
conform to evidence Judge Gito: Therefore, if the complaint is amended as
a matter of right, at wala pang naiissue na summons,
When issues not raised by the pleadings are tried with siyempre mag i-issue ka ng summons. But in a
the express or implied consent of the parties, they situation where the complaint is amended because it
shall be treated in all respects as if they had been was granted by the court, yung may motion with leave
raised in the pleadings. No amendment of such of court, kailangan pa ba mag-issue ng summons?
pleadings deemed amended is necessary to cause Hindi na. Kasi sigurado na ang opposite party has
them to conform to the evidence. (Sec. 5, Rule 10) already received summons.
Swagman Hotels and Travel vs. CA SUPPLEMENTAL PLEADING
May a complaint that lacks a cause of action at the Rule 10, Section 6. Supplemental pleadings. – Upon
time it was filed be cured by the accrual of a cause of motion of a party[,] the court may, upon reasonable
action during the pendency of the case? notice and upon such terms as are just, permit him or
her to serve a supplemental pleading setting forth
Section 5 of Rule 10 applies to situations wherein transactions, occurrences or events which have
evidence not within the issues raised in the pleadings happened since the date of the pleading sought to be
is presented by the parties during the trial, and to supplemented. The adverse party may plead thereto
conform to such evidence the pleadings are within ten (10) calendar days from notice of the order
subsequently amended on motion of a party. Thus, a admitting the supplemental pleading.
complaint which fails to state a cause of action may
be cured by evidence presented during the trial. TAKE NOTE: When the cause of action in the
supplemental complaint is different from the cause of
However, the curing effect under Section 5 is action mentioned in the original complaint, the court
applicable only if a cause of action in fact exists at should not admit the supplemental complaint. Its
the time the complaint is filed, but the complaint is usual office is to set up new facts which justify,
defective for failure to allege the essential facts. enlarge or change the kind of relief with respect to the
For example, if a complaint failed to allege the same subject matter as the controversy referred to in
fulfillment of a condition precedent upon which the the original complaint.
cause of action depends, evidence showing that such
condition had already been fulfilled when the Illustration 1:
complaint was filed may be presented during the trial,

The defendant executed 3 PN’s with different due dates:

complaint or complaint -
January 1, June 1, and December 1. Jan. 1, naging due,
in - intervention
hindi nagbayad ang defendant. Nag file ang plaintiff ng
complaint. In the course of the proceeding, naging due
Answer to counterclaim 20 days from service
and demandable and PN#2. Nag file ng supplemental
or cross-claim
complaint si plaintiff to include the second PN which
became due and demandable. Would you admit the Answer to Third (fourth, 30 days after service of
supplemental complaint? You will not admit. etc.)-party complaint summons
Illustration 2:
Reply 15 days from service
Eh kung isang PN lang pero installment. First installment
January, second installment June, then third installment Answer to supplemental 20 days from notice of
December. First installment hindi nagbayad, pwede complaint the order admitting the
ka na ba mag-file ng kaso? Yes. same
While the case was pending, the second installment

became due and demandable, hindi nagbayad. Pwede ka MOTION FOR EXTENSION OF TIME (Sec. 11, Rule
ba mag file ng supplemental complaint? Yes. Because 11)
it’s not a different cause of action. It is incorporated in
one complaint. Kasi sabi natin dito, the usual office of a Under the new rule, only one motion for extension
supplemental complaint is to set up new facts which time to file an Answer may be granted by the court,
justify, enlarge, or change the kind of relief with respect for meritorious reasons. The court can grant another
to the same subject matter as the controversy since what 30 days to file an Answer.
is involved only is one contract and there are different
installments. Pag totally different from the first cause of A motion for extension to file any pleading, other than
action, hindi supplemental complaint. an answer, is prohibited and considered a mere scrap
of paper. The court, however, may allow any other
EFFECT OF AMENDED PLEADINGS pleading to be filed after the time fixed by these Rules.
An amended pleading supersedes the pleading that it 7. Bill of Particulars (Rule 12)
amends. However, admissions in superseded
pleadings may be offered in evidence against the MOTION FOR BILL OF PARTICULARS
pleader, and claims or defenses alleged therein not
incorporated in the amended pleading shall be Before responding to a pleading, a party may move for
deemed waived. (Sec. 8, Rule 10) In such case, it is a definite statement or for a bill of particulars of any
treated as extra-judicial admission (Torres vs. CA) matter, which is not averred with sufficient
definiteness or particularity, to enable him or her
6. When to file responsive pleadings (Rule 11) properly to prepare his or her responsive pleading. If
the pleading is a reply, the motion must be filed within
ten (10) calendar days from service thereof. Such
Answer to complaint 30 days after service of motion shall point out the defects complained of,
summons the paragraphs wherein they are contained, and
the details desired. (Sec. 1, Rule 12).
Answer of a defendant 60 days from receipt of
foreign private juridical summons If the motion is granted, the compliance therewith
entity when summons is must be effected within ten (10) days from notice of
made on government the order, unless a different period is fixed by the
official designated by court. It may be filed either in a separate or in an
law to receive the same amended pleading, serving a copy thereof on the
adverse party (Sec. 3, Rule 12).
Answer to amended 30 days if amendment is
complaint a matter or right If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking
15 days if amendment is out of the pleading or the portions thereof to which the
not a matter of right. order was directed or make such other order as it
deems just (Sec. 4, Rule 12).
★ This rule shall apply
to answer to amended 8. Efficient use of paper rule; e-filing
counterclaim, cross-
claim, third (fourth, etc.,)

requirement is in preparation for the eventual

Format and Style establishment of an e-filing paperless system
in the judiciary.
a) All pleadings, motions and similar papers
intended for the court and quasi-judicial b) Court of Appeals and the Sandiganbayan →
body’s consideration and action (court-bound one original (properly marked) and two copies
papers) shall written in single space with with their annexes;
one-and-a–half space between paragraphs,
using an easily readable font style of the c) Court of Tax Appeals
party’s choice, of 14-size font, and on a 13
■ Division → one original (properly
–inch by 8.5- inch white bond paper; and
marked) and two copies with annexes.
b) All decisions, resolutions and orders issued by ■ Appeal to the En Banc → one Original
courts and quasi-judicial bodies under the (properly marked) and eight copies
administrative supervision of the Supreme with annexes; and
Court shall comply with these requirements.
Similarly covered are the reports submitted to d) In other courts, one original (properly marked)
the courts and transcripts of stenographic with the stated annexes attached to it.
notes.
Annexes Served on Adverse Party
Margins and Prints
A party required by the rules to serve a copy of his
The parties shall maintain the following margins on all court-bound on the adverse party need not enclose
court-bound papers: a left hand margin of 1.5 inches copies of those annexes that based on the record of
from the edge; an upper margin of 1.2 inches from the the court such party already has in his possession. In
edge; a right hand margin of 1.0 inch from the edge; the event a party requests a set of the annexes
and a lower margin of 1.0 inch from the edge. Every actually filed with the court, the party who filed the
page must be consecutively numbered. paper shall comply with the request within five days
from receipt.
Copies to be filed
ELECTRONIC FILING AND SERVICE
Unless otherwise directed by the court, the number of
court- bound papers that a party is required or desires What to remember:
to file shall be as follows:
■ The filing and service by electronic means
a) Supreme Court require consent/authorization — in case of
filing, the court must authorize such mode of
■ Division → one original (properly filing (in places where the court is
marked) and four copies. The parties electronically equipped), or in case of service,
need to submit also two sets of the other party must consent to such mode of
annexes, one attached to the original service, unless directed by the court.
and an extra copy.
■ Filing may be done by transmitting through
■ Court En Banc → one original electronic mail or other electronic means. The
(properly marked) and ten additional date of electronic transmission shall be
copies. The parties need to submit considered as the date of filing.
only two sets of annexes, one
attached to the original and an extra If the pleading or any other court submission
copy. was filed by electronic mail, the same shall be
proven by an affidavit of electronic filing of the
★ All members of the Court shall filing party accompanied by a paper copy of
share the extra copies of annexes in the pleading or other document transmitted or
the interest of economy of paper. a written or stamped acknowledgment of its
filing by the clerk of court. If the paper copy
Parties to cases before the Supreme Court are sent by electronic mail was filed by registered
further required xxx compulsorily unless the mail, then the rule on proof of filing by
period is extended, to submit, simultaneously registered mail applies.
with their court-bound papers, soft copies of
the same and their annexes (the latter in PDF If the pleading or any other court submission
format) either by email to the Court’s e-mail was filed through other authorized electronic
address or by compact disc (CD). This means, the same shall be proven by an

affidavit of electronic filing of the filing party Filing is the act of submitting the pleading or other
accompanied by a copy of the electronic paper to the court.
acknowledgment of its filing by the court.
Service is the act of providing a party with a copy of
■ Service by electronic means shall be made by the pleading or any other court submission.
sending an e-mail to the party’s or counsel’s
electronic mail address, or through other If a party has appeared by counsel, service upon such
electronic means of transmission as the party shall be made upon his or her counsel, unless
parties may agree on, or upon direction of the service upon the party and the party’s counsel is
court. Service by facsimile shall be made by ordered by the court. Where one counsel appears for
sending a facsimile copy to the party’s or several parties, such counsel shall only be entitled to
counsel’s given facsimile number. one copy of any paper served by the opposite side.
Proof shall be made by an affidavit of service Where several counsels appear for one party, such
executed by the person who sent the e-mail, party shall be entitled to only one copy of any
facsimile, or other electronic transmission, pleading or paper to be served upon the lead counsel if
together with a printed proof of transmittal. one is designated, or upon any one of them if there is
no designation of a lead counsel.
■ FORMAT
The subject of the electronic mail and Section 2 mandates that if a party is represented by
facsimile must follow the prescribed format: several counsels, such party is entitled only to one
copy of the pleading or paper, to be served upon the
○ case number lead counsel. Should there be no designated lead
counsel, to anyone of the counsels of the party.
○ case title, and
NOTE: Subject to compelling reasons involving
○ pleading, order or document title
substantial justice, service of a petition upon a party,
The title of each electronically-filed or served when the party is represented by counsel of record, is
pleading or other document, and each a patent nullity and is not binding upon the party
submission served by facsimile shall contain wrongfully served (Republic vs. Caguioa)
sufficient information to enable the court to
ascertain from the title: MANNER OF FILING
○ the party or parties filing or serving

Section 3 of the new Rules expands the manner of
the paper,
filing. Filing can be made in four ways:
○ nature of the paper,
1) Submitting personally the original thereof,
○ the party or parties against whom plainly indicated as such, to the court;
relief, if any, is sought, and
■ Considered filed upon the receipt of
○ the nature of the relief sought. the court.
■ Electronic service is complete at the time of 2) Sending them by registered mail;

the electronic transmission of the document,
or when available, at the time that the ■ Considered filed on the date of
electronic notification of service of the mailing.
document is sent. Electronic service is not
effective or complete if the party serving the 3) Sending them by accredited courier;
document learns that it did not reach the
■ Considered filed on the date of
addressee or person to be served.
mailing.
Service by facsimile transmission is complete
upon receipt by the other party, as indicated 4) Transmitting them by electronic mail or other
in the facsimile transmission printout. electronic means as may be authorized by
the Court in places where the court is
F. Filing and service of pleadings, judgments, electronically equipped.
final orders, and resolutions (Rule 13)
■ The date of electronic transmission
shall be considered as the date of
Rule 13, Section 2. Filing and [s]ervice, defined. –
filing.

appropriate pleading or motion.

MODES OF SERVICE
SERVICE BY MAIL
Under the new rule, there are five methods of service:
Rule 13, Section 7. Service by mail. – Service by
1) Personal service
registered mail shall be made by depositing the copy
2) By registered mail in the post office, in a sealed envelope, plainly
addressed to the party or to the party’s counsel at his
■ Ordinary mail — complete upon the or her office, if known, otherwise at his or her
expiration of 10 calendar days after residence, if known, with postage fully pre-paid, and
mailing. with instructions to the postmaster to return the mail
to the sender after ten (10) calendar days if
■ Registered mail — complete upon undelivered. If no registry service is available in the
actual receipt by the addressee, or locality of either the sender or the addressee, service
after 5 calendar days from the date he may be done by ordinary mail. (7a)
received the first notice of the
postmaster, whichever date is earlier. SUBSTITUTED SERVICE
3) By accredited courier service Rule 13, Section 8. Substituted service. – If service of

pleadings, motions, notices, resolutions, orders and
■ Complete upon actual receipt by the other papers cannot be made under the two preceding
addressee, or after at least 2 attempts [S]ections, the office and place of residence of the party
to deliver by the courier service, or or his or her counsel being unknown, service may be
upon the expiration of 5 calendar days made by delivering the copy to the clerk of court, with
after the first attempt to deliver, proof of failure of both personal service and service by
whichever is earlier. mail. The service is complete at the time of such
delivery. (8a)
4) Electronic mail, facsimile transmission,
other electronic means as may be
authorized by the Court SERVICE BY ELECTRONIC MEANS AND
FACSIMILE
■ Complete at the time of the electronic
transmission of the document, or at Rule 13, Section 9. Service by electronic means and
the time that the electronic notification facsimile. – Service by electronic means and facsimile
of service of the document is sent. shall be made if the party concerned consents to such
modes of service.
5) Service or as provided for in international
conventions to which the Philippines is a Service by electronic means shall be made by sending
party. an e-mail to the party’s or counsel’s electronic mail
address, or through other electronic means of
PERSONAL SERVICE transmission as the parties may agree on, or upon
direction of the court.
Rule 13, Section 6. Personal [s]ervice. – Court
submissions may be served by personal delivery of a Service by facsimile shall be made by sending a
copy to the party or to the party’s counsel, or to their facsimile copy to the party’s or counsel’s given
authorized representative named in the appropriate facsimile number.
pleading or motion, or by leaving it in his or her office
with his or her clerk, or with a person having charge Under this section, service by electronic means and
thereof. facsimile shall be made if the party concerned
consents to such modes of service.
If no person is found in his or her office, or his or her
office is not known, or he or she has no office, then by If a party consents, service by electronic means shall
leaving the copy, between the hours of eight in the be made by sending an e-mail to the party’s or
morning and six in the evening, at the party’s or counsel’s electronic mail address, or through other
counsel’s residence, if known, with a person of electronic means of transmission as the parties may
sufficient age and discretion residing therein. agree on, or upon direction of the court.
Under the new rule, personal service may be made Service by facsimile shall be made by sending a
not only to the party or the party’s counsel, but also to facsimile copy to the party’s or counsel’s given
the party's authorized representatives named in the

facsimile number. 3) If by accredited courier service → by an

affidavit of service of the person who brought
PRESUMPTIVE SERVICE the pleading or other document to the service
provider, together with the courier’s official
Rule 13, Section 10. Presumptive service. – There shall receipt and document tracking number;
be presumptive notice to a party of a court setting if
4) If filed by electronic mail → by an affidavit of
such notice appears on the records to have been
electronic filing of the filing party
mailed at least twenty (20) calendar days prior to the
accompanied by a paper copy of the pleading
scheduled date of hearing and if the addressee is from
or other document transmitted or a written or
within the same judicial region of the court where the
stamped acknowledgment of its filing by the
case is pending, or at least thirty (30) calendar days if
clerk of court. If the paper copy sent by
the addressee is from outside the judicial region.
electronic mail was filed by registered mail,
paragraph (b) of this Section applies;
Under the amendment, there is now a presumptive
notice of court setting. 5) If filed through other electronic means →
the same shall be proven by an affidavit of
Notice of court setting is presumptively received if it electronic filing of the filing party
appears from the record that the same has been accompanied by a copy of the electronic
mailed at least: acknowledgment of its filing by the court.
➢ 20 calendar days prior to the scheduled

PROOF OF SERVICE
hearing if the addressee is from within the
same judicial region of the court where the
1) Ordinary mail → Proof shall consist of an
case is pending;
affidavit of the person mailing stating the facts
➢ 30 calendar days, if outside judicial region showing compliance with [S]ection 7 of this
Rule.
CONVENTIONAL SERVICE OR FILING 2) Registered mail → Proof shall be made by
[the] affidavit mentioned above and the
There are pleadings and other documents which must registry receipt issued by the mailing office.
be filed or served personally or by registered mail: The registry return card shall be filed
immediately upon its receipt by the sender, or
1) Initiatory pleadings and initial responsive in lieu thereof[,] the unclaimed letter together
pleadings, such as an answer; with the certified or sworn copy of the notice
given by the postmaster to the addressee.
2) Subpoenae, protection orders, and writs;
3) Accredited courier service → Proof shall be
3) Appendices and exhibits to motions, or other
made by an affidavit of service executed by
documents that are not readily amenable to
the person who brought the pleading or paper
electronic scanning may, at the option of the
to the service provider, together with the
party filing such, be filed and served
courier’s official receipt or document tracking
conventionally; and
number.
4) Sealed and confidential documents or 4) Electronic mail, facsimile, or other
records. authorized electronic means of
transmission → Proof shall be made by an
However, they may be filed or served through other affidavit of service executed by the person
means upon express permission from the court. who sent the e- mail, facsimile, or other
electronic transmission, together with a
PROOF OF FILING printed proof of transmittal.
1) By the existence of the pleading or other court Rule 13, Section 18. Court-issued orders and other
submission in the record of the case; documents. – The court may electronically serve
orders and other documents to all the parties in the
2) If there are not in record → the filing shall be case which shall have the same effect and validity as
proven by the written or stamped provided herein. A paper copy of the order or other
acknowledgment of its filing by the clerk of document electronically served shall be retained and
court on a copy of the pleading or court attached to the record of the case.
submission;
1. Rules on payment of docket fees; effect of

non-payment
quasi in rem action action in rem or quasi
in rem is not to acquire
General rule: A court acquires jurisdiction over any
jurisdiction over the
case only upon the payment of the prescribed docket
defendant but to satisfy the
fee.
element of due process.
The Court acquires jurisdiction over any case only
upon the payment of the prescribed docket fee. An
amendment of the complaint or similar pleading will Rule 14, Section 1. Clerk to issue summons. – Unless
not thereby vest jurisdiction in the Court, much less the complaint is on its face dismissible under Section 1,
the payment of the docket fee based on the amounts Rule 9, the court shall, within five (5) calendar days
sought in the amended pleading. (Manchester from receipt of the initiatory pleading and proof of
Development Corporation v. CA) payment of the requisite legal fees, direct the clerk of
court to issue the corresponding summons to the
Exception: when insufficient filing fees are initially defendants.
paid by the plaintiffs and there is no intention to
defraud the government, the Manchester rule does not
Implied from this provision is that the Court can
apply.
dismiss the complaint pursuant to Section 1, Rule
9. Section 1, Rule 9 provides that the court shall
It is not simply the filing of the complaint or
dismiss the complaint “if it appears that the court has
appropriate initiatory pleading, but the payment of the
no jurisdiction over the subject matter, that there is
prescribed docket fee, that vests a trial court with
another action pending between the same parties for
jurisdiction over the subject-matter or nature of the
the same cause, or that the action is barred by a prior
action. Where the filing of the initiatory pleading is not
judgment or by statute of limitations.”
accompanied by payment of the docket fee, the court
may allow payment of the fee within a reasonable time
Otherwise,the court shall issue summons.
but in no case beyond the applicable prescriptive or
reglementary period.
WHO IS AUTHORIZED TO SERVE SUMMONS
Plainly, while the payment of the prescribed docket
fee is a jurisdictional requirement, even its The summons may be served by the sheriff, his
nonpayment at the time of filing does not deputy, or other proper court officer.
automatically cause the dismissal of the case, as long
as the fee is paid within the applicable prescriptive or Nonetheless, under Section 2, the plaintiff, upon his
reglementary period; more so when the party involved ex-parte motion, may be authorized to serve
demonstrates a willingness to abide by the rules summons to the defendant. Section 3 likewise
prescribing such payment. provides for instances when the plaintiff may be
authorized to serve summons.
Thus, "[t]he non-payment of the prescribed filing fees at
the time of the filing of the complaint or other initiatory Instances by which the plaintiff may be authorized
pleading fails to vest jurisdiction over the case in the trial to serve summons upon the defendant:
court. Yet, where the plaintiff has paid the amount of
filing fees assessed by the clerk of court, and the amount 1) In case there is failure to serve summons by
paid turns out to be deficient, the trial court still acquires the sheriff or other proper court officer. In
jurisdiction over the case, subject to the payment by the which case, the plaintiff shall be accompanied
plaintiff of the deficiency assessment." by the sheriff.
G. Summons (Rule 14) 2) In cases where summons is to be served

outside the judicial region of the court where
1. Nature and purpose of summons in relation to the case is pending.
actions in personam, in rem, and quasi in rem
■ If the plaintiff is a juridical entity, it
shall notify the court, in writing, and
Action in personam The purpose of summons in name its authorized representative
action in personam is to therein, attaching a board resolution
acquire jurisdiction over the or secretary’s certificate thereto, as
person of the defendant. the case may be, stating that such
representative is duly authorized to
serve the summons on behalf of the
Actions in rem & The purpose of summons in plaintiff.

What if the plaintiff misrepresents that the such person must know how
defendant received summons? to read and understand
English to comprehend the
There is repercussion if the plaintiff misrepresents the import of the summons, and
service of summons on the defendant. The case shall fully realize the need to deliver
be dismissed with prejudice, the proceedings shall be the summons and complaint
nullified and the plaintiff shall be meted appropriate to the defendant at the
sanctions. earliest possible time.
What if summons cannot be served upon all or any ii) By leaving copies of the summons at
of the defendants? defendant's office or regular place of
business with some competent
If summons is returned without being served on any or person in charge thereof. A competent
all the defendants, the court shall order the plaintiff to person includes, but not limited to,
cause the service of summons by other means one who customarily receives
available under these Rules. correspondences for the defendant.
Failure to comply with the order shall cause the iii) By leaving copies of the summons, if
dismissal of the initiatory pleading without prejudice refused entry upon making his or her
authority and purpose known, with
FAILURE OF SERVICE OF SUMMONS any of the officers of the homeowner’s
association or condominium
There is failure of service after unsuccessful attempts corporation, or its chief security officer
to personally serve the summons on the defendant on in charge of the community or the
his address indicated in the complaint. (Sec. 4, Rule building where the defendant may be
14). found.
Thus, there shall be substituted of service in iv) By sending an electronic mail to the
accordance with Section 6. defendant’s electronic mail address, if
allowed by the court.
SERVICE OF SUMMONS
■ Substituted service is a method extraordinary
in character, hence, may be used only as
SERVICE IN PERSON ON DEFENDANT
prescribed and in the circumstances
authorized by statute.
■ Under Section of the new Rules, there is an
added requirement in serving summons upon
■ Hence, return which merely states the alleged
the person of defendant — Aside from just
whereabouts of the defendants, without
handing a copy thereof to the defendant in
indicating that such information was verified
person, the server has to inform the defendant
and without specifying the efforts exerted to
he or she is being served. If he or she refuses
serve the summons, is not enough for
to receive and sign for it, by leaving the
compliance. So is a mere general statement
summons within the view and in presence of
that such efforts were made (Jose vs. Boyon)
the defendant.
■ The Court ruled that for substituted service of
SUBSTITUTED SERVICE summons to be available, the impossibility of
service in person must be shown. There
■ Substituted service can be effected, if, for must be several attempts by the sheriff to
justifiable causes, the defendant cannot be personally serve the summons within a
served personally after at least three (3) reasonable period of time which eventually
attempts on two (2) separate dates. resulted in failure to personally serve it in
person. “Several attempts” means at least
■ How is substituted service effected? three (3) tries, preferably on at least two
different dates. In addition, the sheriff must
i) By leaving copies of the summons at cite why such efforts were unsuccessful. It is
the defendant's residence to a person only then that impossibility of service can be
at least eighteen (18) years of age and confirmed (Manotoc vs. CA)
of sufficient discretion residing
therein. “reasonable period of time” — One month
from the issuance of summons can be
➢ To be of sufficient discretion, considered reasonable time with regard to

personal service on the defendant. (OCA v. by the plaintiff.

Cabrera-Faller)
■ In the case of a minor, service shall be made
■ If the defendant consciously prevented the on his or her parent or guardian.
service of summons upon his person, then the
summons shall be considered served upon his SERVICE UPON SPOUSE
person (Robinson vs. Miralles)
■ When spouses are sued jointly, service of
Should substituted service have been effected, the summons should be made to each spouse
return shall state the following: individually.
1) The impossibility of prompt personal service ■ This new section must be related to Section 4,
within a period of thirty (30) calendar days Rule 3 where it is provided that husband and
from issue and receipt of summons; wife shall sue or be sued jointly, except as
provided by law. However, even if the
2) The date and time of the three (3) attempts on husband and wife are sued jointly, service of
at least two (2) different dates to cause summons should be made to each spouse
personal service and the details of the individually.
inquiries made to locate the defendant
residing thereat; and SERVICE UPON DOMESTIC PRIVATE ENTITY
3) The name of the person at least eighteen (18) ■ Service shall be made on the president,
years of age and of sufficient discretion managing partner, general manager, corporate
residing thereat, name of competent person in secretary, treasurer, or in-house counsel of
charge of the defendant’s office or regular the corporation wherever they may be found,
place of business, or name of the officer of the or in their absence or unavailability, their
homeowners’ association or condominium secretaries.
corporation or its chief security officer in
charge of the community or building where ■ If such service cannot be made upon any of
the defendant may be found. the foregoing persons, it shall be made upon
the person who customarily receives
SERVICE UPON AN ENTITY WITHOUT JURIDICAL correspondence for the defendant at its
PERSONALITY principal office.
■ Service may be effected upon all the ■ In case the domestic juridical entity is under
defendants by serving upon any one of them, receivership or liquidation, service of
or upon the person in charge of the office or summons shall be made on the receiver or
place of business maintained in such name. liquidator, as the case may be.
■ But such service shall not bind individually ■ Should there be a refusal on the part of the
any person whose connection with the entity persons above-mentioned to receive
has, upon due notice, been severed before summons despite at least 3 attempts on 2
the action was brought. separate dates, substituted service may be
effected. But the manner of substituted
SERVICE UPON PRISONER service is service through electronic means.
■ Service shall be effected upon him or her by SERVICE UPON FOREIGN PRIVATE ENTITY
the officer having the management of such jail
or institution who is deemed deputized as a ■ Service may be made on its resident agent
special sheriff for said purpose. designated in accordance with law for that
purpose, or, if there be no such agent, on the
■ The jail warden shall file a return within five (5) government official designated by law to that
calendar days from service of summons to the effect, or on any of its officers or agents,
defendant. directors or trustees within the Philippines.
SERVICE UPON MINORS ■ It has been held that when a foreign

corporation has designated a person to
■ Service shall be effected upon him or her receive summons on its behalf pursuant to the
personally and on his legal guardian if he or Corporation Code, that designation is
she has one, or if none his or her guardian ad exclusive and service of summons on any
litem whose appointment shall be applied for other person is inefficacious (H.B. Zachry

Company International vs. CA) wholly or in part, in excluding the

defendant from any interest therein
SERVICE UPON A FOREIGN PRIVATE ENTITY NOT
REGISTERED IN THE PHILIPPINES OR WITH NO c) The property of the defendant has been
RESIDENT AGENT attached within the Philippines.
1. By personal service coursed through the Modes of extra-territorial service

appropriate court in the foreign country with
the assistance of the department of foreign 1) Personal Service under Section 5 or or as
affairs; provided for in international conventions to
which the Philippines is a party
2. By publication once in a newspaper of
general circulation in the country where the 2) Publication in newspaper in such place
defendant may be found and by serving a
copy of the summons and the court order by 3) Other manner the court may deem sufficient
registered mail at the last known address of
the defendant; Take note that the SC in several cases applies Section
17, Rule 14 to actions in rem or quasi in rem.
3. By facsimile; Extra-territorial service is not available in an action
in personam.
4. By electronic means with the prescribed
proof of service; Rule 14, Section 18. Residents Temporarily Out of the
Philippines. — When any action is commenced
5. By such other means as the court, in its against a defendant who ordinarily resides within the
discretion, may direct. Philippines, but who is temporarily out of it, service
may, by leave of court, be also effected out of the
SERVICE UPON DEFENDANT WHOSE IDENTITY Philippines, as under the preceding section.
OR WHEREABOUTS ARE UNKNOWN (Extraterritorial service)
■ Service of summons may, by leave of court,

be effected through publication in a Palma vs. Galvez (2010)
newspaper of general circulation and in such
places and for such time as the court may In Montefalcon v. Vasquez, we said that because
order. Section 16 of Rule 14 uses the words "may" and
"also," it is not mandatory. Other methods of service
■ However, such kind of service of summons of summons allowed under the Rules may also be
can only be effected if there is a showing that availed of by the serving officer on a
defendant’s whereabouts cannot be defendant-resident who is temporarily out of the
ascertained by diligent inquiry within 90 days Philippines. Thus, if a resident defendant is
from the commencement of the suit. temporarily out of the country, any of the following
modes of service may be resorted to: (1) substituted
■ The rule obviously does not distinguish service set forth in section 7 ( formerly Section 8), Rule
whether the action is in personam, in rem or 14; (2) personal service outside the country, with leave
quasi in rem. of court; (3) service by publication, also with leave of
court; or (4) in any other manner the court may deem
sufficient.
EXTRATERRITORIAL SERVICE
HOW MAY IMPROPER SERVICE OF SUMMONS BE

When the defendant does not reside and is not found CURED?
in the Philippines and the action:
1) By proof of actual receipt
a) Affects the personal status of the plaintiff
■ In the case at bar, there is no question
b) Relates to, or the subject of which is, property that summons was timely issued and
within the Philippines, received by private respondent. In
fact, he never denied actual receipt of
i) Which the defendant has or claims a such summons but confined himself
lien or interest, actual or contingent, to the argument that the Sheriff
or should prove that personal service
was first made before resorting to
ii) Which the relief demanded consists, substituted service. x x x x

Irregularities of this kind may, 2. Non-litigious motions (Rule 15, Sec. 4)

however, be cured by proof that the
copies have actually been delivered to What is non-litigious motion?
the defendant, which is equivalent to
personal service. (Mapa vs. Court of Motions which the court may act upon without
Appeals) prejudicing the rights of adverse parties are
non-litigious motions.
2) By asking affirmative relief from the Court
The following are non-litigious motions under the
■ We have, time and again, held that the new Rules: (APE-AWW-SO)
filing of a motion for additional time to
file an answer is considered voluntary 1) Motion for the issuance of alias summons;
submission to the jurisdiction of the 2) Motion for postponement;
court. If the defendant knowingly does 3) Motion for extension to file answer;
an act inconsistent with the right to 4) Motion for the issuance of an alias writ of
object to the lack of personal execution
jurisdiction as to him, like voluntarily 5) Motion for the issuance of a writ of
appearing in the action, he is deemed execution;
to have submitted himself to the 6) Motion for the issuance of a writ of
jurisdiction of the court (Carson Realty possession;
& Management Corp vs. Red Robin 7) Motion for the issuance of an order directing
Security Agency) the sheriff to execute the final certificate of
sale; and
Rule 14, Section 13. Duty of counsel of record. – 8) Other similar motions.
Where the summons is improperly served and a
lawyer makes a special appearance on behalf of the What should the court do with non litigious
defendant to, among others, question the validity of motions?
service of summons, the counsel shall be deputized by
the court to serve summons on his or her client. These motions shall not be set for hearing and shall
be resolved by the court within five (5) calendar days
from receipt thereof.
H. Motions
1. In general (Rule 15) 3. Litigious Motions (Rule 15, Sec. 5)
Rule 15, Section 1. Motion defined. – A motion is an The following are litigious motions under the new
application for relief other than by a pleading. (1) Rules:
Rule 15, Section 2. Motions must be in writing. – All 1) Motion for bill of particulars;
motions shall be in writing except those made in open 2) Motion to dismiss;
court or in the course of a hearing or trial. 3) Motion for new trial;
4) Motion for reconsideration;
A motion made in open court or in the course of a 5) Motion for execution pending appeal;
hearing or trial should immediately be resolved in 6) Motion to amend after a responsive pleading
open court, after the adverse party is given the has been filed;
opportunity to argue his or her opposition thereto. 7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of
When a motion is based on facts not appearing on demolition;
record, the court may hear the matter on affidavits or 9) Motion for intervention;
depositions presented by the respective parties, but the 10) Motion for judgment on the pleadings;
court may direct that the matter be heard wholly or 11) Motion for summary judgment;
partly on oral testimony or depositions. 12) Demurrer to evidence;
13) Motion to declare defendant in default;
General rule: Hearing is not necessary for a motion 14) Other similar motions.
Exception: When a motion is based on facts not Procedure in litigious motions

appearing on record, the court may hear the matter on
affidavits or depositions presented by the respective All motions shall be served by personal service,
parties, but the court may direct that the matter be accredited private courier or registered mail, or
heard wholly or partly on oral testimony or electronic means so as to ensure their receipt by the
depositions. other party.

postponement fee, the clerk of court shall not accept

The opposite party shall file his or her opposition to a the motion.
litigious motion within five (5) calendar days from
receipt thereof. No other submissions shall be NOTE: It is a litigious motion and not a prohibited
considered by the court in the resolution of the pleading when the motion to dismiss is based on
motion. the following grounds:
The motion shall be resolved by the court within 1. Lack of jurisdiction over the subject matter
fifteen (15) calendar days from its receipt of the 2. Litis pendentia
opposition thereto, or upon expiration of the period to 3. Res judicata
file such opposition. 4. Statute of limitation or prescription
The court may, in the exercise of its discretion, and if I. Dismissal of Actions
deemed necessary for its resolution, call a hearing on
the motion. The notice of hearing shall be addressed 1. With prejudice vs. without prejudice;
to all parties concerned, and shall specify the time and dismissals which have an effect of an
date of the hearing (Section 6). adjudication on the merits
No written motion shall be acted upon by the court Difference between a dismissal with prejudice and
without proof of service thereof, pursuant to section one without prejudice:
5(b) hereof (Section 7).
Dismissal with prejudice disallows and bars the refiling
Except for motions requiring immediate action, where of the complaint; whereas, the same cannot be said of
the court decides to conduct hearing on a litigious a dismissal without prejudice. Likewise, where the law
motion, the same shall be set on a Friday (Section 8). permits, a dismissal with prejudice is subject to the
right of appeal. (Strongworld Construction
EXCEPTIONS TO OMNIBUS MOTION RULE Corporation, et al. v. Hon. Perello, et al.)
1. Lack of jurisdiction over the subject matter DISMISSALS WITH PREJUDICE

2. Litis pendentia
3. Res judicata 1) Barred by a prior judgment;
4. Statute of limitation or prescription
2) Barred by the statute of limitations;
4. Prohibited Motions (Rule 15, Sec. 12)
3) That the claim or demand set forth in the
The following are prohibited motions under the plaintiff’s pleading has been paid, waived,
new Rules: abandoned or otherwise extinguished;
1) Motion to dismiss 4) That the claim on which the action is founded

is unenforceable under the provisions of the
2) Motion to hear affirmative defenses; statute of frauds.
3) Motion for reconsideration of the court’s The nature of the dismissal founded on any of the
action on the affirmative defenses; preceding grounds is with prejudice because the
dismissal prevents the refiling of the same action or
4) Motion to suspend proceedings without a
claim.
temporary restraining order or injunction
issued by a higher court;
N.B. The remedy of the aggrieved party is APPEAL.
5) Motion for extension of time to file pleadings,
affidavits or any other papers; DISMISSALS WITHOUT PREJUDICE
6) Motion for postponement intended for delay. 1) That the court has no jurisdiction over the
person of the defending party;
Motion for postponement is allowed if it is based on
2) That the court has no jurisdiction over the
acts of God, force majeure or physical inability of the
subject matter of the claim;
witness to appear and testify. A motion for
postponement, whether written or oral, shall, at all 3) That venue is improperly laid;
times, be accompanied by the original receipt from the
office of the clerk of court evidencing payment of the 4) That the plaintiff has no legal capacity to sue;
postponement fee. If there is no proof of payment of

5) That there is another action pending between dismissal is with prejudice

the same parties for the same cause;
● If the plaintiff has previously dismissed the
6) That the pleading asserting the claim states same case in a court of competent jurisdiction
no cause of action; based on or including the same claim (Double
dismissal rule)
7) That a condition precedent for filing the claim
has not been complied with.
Dismissals based on these grounds are without Let us say that the plaintiff files a complaint for sum
prejudice because they do not preclude the refiling of of money. 300K pesos. He filed the complaint before
the same action. the RTC. Prior to the service of answer, the plaintiff
filed a notice of dismissal. The Court confirmed the
DISMISSALS WHICH HAVE AN EFFECT OF AN notice of dismissal and dismissed the complaint
ADJUDICATION ON THE MERITS without prejudice. After two months, the plaintiff
filed again against the same defendant the sum of
Rule 17, Section 3. Dismissal due to fault of plaintiff. money, now with the MTC. He filed a notice of
– If, for no justifiable cause, the plaintiff fails to appear dismissal. It was confirmed by the court and the
on the date of the presentation of his or her evidence in court dismissed the complaint without prejudice. So
chief on the complaint, or to prosecute his or her action the plaintiff filed the same complaint against the
for an unreasonable length of time, or to comply with same defendant in the MTC. He filed a notice of
these Rules or any order of the court, the complaint dismissal and he indicated in his notice of dismissal
may be dismissed upon motion of the defendant or that he wants to dismiss the case without prejudice.
upon the court’s own motion, without prejudice to the It was confirmed by the MTC. Same amount for all 3
right of the defendant to prosecute his or her cases.
counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon Should the dismissal in the second case be with or
the merits, unless otherwise declared by the court. without prejudice?
A dismissal based on any of the grounds in Section 3, It is without prejudice. The Double Dismissal Rule will
Rule 17 of the Rules of Court has the effect of an not yet apply in the second case. The first requisite is
adjudication on the merits. Unless otherwise qualified that the previous case must be dismissed in a court of
by the court, a dismissal under said rule is considered competent jurisdiction. In the first case, the RTC does not
with prejudice, which bars the refiling of the case. have jurisdiction over the claim since it does not exceed
When an order completely disposes of the case and 300K. MTC is the one who has jurisdiction. So in the
leaves nothing to be done by the court, it is a final second case, this dismissal should still be without
order properly subject of an appeal. prejudice.
2. Rule 17 How about the third one? The plaintiff indicated in

his notice of dismissal that he wants to dismiss the
DISMISSAL UPON NOTICE BY PLAINTIFF case without prejudice and the MTC confirmed it.
What is the nature of the dismissal?
A complaint may be dismissed by the plaintiff by filing
a notice of dismissal at any time before service of The third dismissal should be with prejudice. The
the answer or of a motion for summary judgment. plaintiff has already dismissed the case in a court of
Upon such notice being filed, the court shall issue an competent jurisdiction, including the same claim. The
order confirming the dismissal. Unless otherwise Double Dismissal Rule will now apply in the third case.
stated in the notice, the dismissal is without prejudice,
except that a notice operates as an adjudication upon Is the nature of the dismissal in the third case still
the merits when filed by a plaintiff who has once with prejudice? Even though it was confirmed by the
dismissed in a competent court an action based on or MTC that it was dismissed without prejudice?
including the same claim (Sec. 1, Rule 17).
Yes, it must be dismissed with prejudice because it is one
Nature of dismissal under Section 1, Rule 17 of the exceptions to the general rule. It is still with
prejudice because it will be covered by the Double
General rule: Without prejudice Dismissal Rule. It is the Rules of Court which will govern,
not the will of the party.
Exceptions:
DISMISSAL UPON MOTION OF PLAINTIFF
● If the notice of dismissal provides that the
If the answer or motion has already been served upon

the plaintiff, dismissal is no longer a matter of right therefor be found to exist;

and will require the filing of the motion to dismiss by
the plaintiff. The said motion is subject to approval of g) The requirement for the parties to:
the court (Section 2, Rule 17).
1) Mark their respective evidence if not
NOTE: dismissal is without prejudice unless otherwise yet marked in the judicial affidavits of
provided in the Order. their witnesses;
2) Examine and make comparisons of

What is the effect of dismissal on counterclaim?
the adverse parties’ evidence vis-a-vis
the copies to be marked;
Judge Gito: I submit that the counterclaim can still be
adjudicated in the same action. Section 2, Rule 17 3) Manifest for the record stipulations
may be applicable. It is provided therein that: “the regarding the faithfulness of the
dismissal shall be without prejudice to the right of reproductions and the genuineness
the defendant to prosecute his or her counterclaim and due execution of the adverse
in a separate action unless within fifteen (15) parties’ evidence;
calendar days from notice of the motion he or she
manifests his or her preference to have his or her 4) Reserve evidence not available at the
counterclaim resolved in the same action.” pre-trial, but only in the following
manner:
If the counterclaim has been pleaded prior to service
upon the defendant of plaintiff’s motion to dismiss, the i) For testimonial evidence, by
dismissal shall be limited to the complaint only. giving the name or position
and the nature of the
J. Pre-trial (Rule 18) testimony of the proposed
witness;
Under the new Rule, it is not anymore the duty of the
plaintiff to move for setting the case for pre-trial. It is ii) For documentary evidence
now the obligation of the clerk of court. and other object evidence, by
giving a particular description
The branch clerk of court shall issue notice of pre-trial of the evidence.
within five (5) days from the filing of the last
No reservation shall be allowed if not
responsive pleading.
made in the manner described above.
The pre-trial shall be set not later than 60 days from
h) Such other matters as may aid in the prompt
the filing of the last responsive pleading.
disposition of the action.
NATURE AND PURPOSE OF PRE-TRIAL
TAKE NOTE: The failure without just cause of a party
and counsel to appear during pre-trial, despite notice,
The pre-trial is mandatory and should be terminated
shall result in a waiver of any objections to the
promptly. The court shall consider:
faithfulness of the reproductions marked, or their
genuineness and due execution.
a) The possibility of an amicable settlement or of
a submission to alternative modes of dispute
NOTICE OF PRE-TRIAL
resolution;
b) The simplification of the issues; The notice of pre-trial shall include the dates
respectively set for:
c) The possibility of obtaining stipulations or
admissions of facts and of documents to a) Pre-trial;
avoid unnecessary proof; b) Court-Annexed Mediation; and
c) Judicial Dispute Resolution, if necessary.
d) The limitation of the number and identification
of witnesses and the setting of trial dates; The notice shall contain a reminder that
“Non-appearance at any of the foregoing settings shall
e) The advisability of a preliminary reference of be deemed as non-appearance at the pre-trial and
issues to a commissioner; shall merit the same sanctions under Section 5 of Rule
18.”
f) The propriety of rendering judgment on the
pleadings, or summary judgment, or of APPEARANCE OF PARTIES
dismissing the action should a valid ground

Section 4 emphasizes that the appearance of parties Pre-trial Order:

and their counsels are mandatory during pre-trial,
court-annexed mediation and judicial dispute a) An enumeration of the admitted facts;
resolution is mandatory. Appearance may only be
excused based on the following reasons: b) The minutes of the pre-trial conference;
c) The legal and factual issue/s to be tried;

1. Acts of god
2. Force majeure d) The applicable law, rules, and jurisprudence;
3. Physical inability of party or counsel.
e) The applicable law, rules, and jurisprudence;
TAKE NOTE: A representative may appear on behalf of
a party, but must be fully authorized in writing to enter f) The evidence marked;
into an amicable settlement, to submit to alternative
modes of dispute resolution, and to enter into g) The specific trial dates for continuous trial,
stipulations or admissions of facts and documents. which shall be within the period provided by
the Rules;
So, if the client does not want to appear, the lawyer
h) Case flow chart as determined by the Court;
must secure a special power of attorney authorizing
the lawyer or any of his representative to do the i) Statement of one-day examination rule;
following:
j) Statement that the court will render judgment
1. to enter into an amicable settlement; on the pleadings or summary judgment.
2. to submit to alternative modes of dispute
resolution; and The direct testimony of witnesses for the plaintiff shall
3. to enter into stipulations or admissions of be in the form of judicial affidavits. After the
facts and documents. identification of such affidavits, cross-examination
shall proceed immediately.
Absent any of the three, the SPA is defective. If the
SPA is defective, that is considered as nonappearance Postponement of presentation of the parties’
of a party. witnesses at a scheduled date is prohibited, except if
it is based on acts of God, force majeure or duly
Non-appearance of parties and their counsels substantiated physical inability of the witness to
appear and testify. The party who caused the
If the plaintiff and his or her counsel failed to appear, postponement is warned that the presentation of its
despite notice, it would cause the dismissal of the evidence must still be terminated within the remaining
complaint, with prejudice, unless otherwise ordered by dates previously agreed upon.
the court.
Should the opposing party fail to appear without valid
If the defendant and his or her counsel failed to cause stated in the next preceding paragraph, the
appear, it will allow the plaintiff to present evidence presentation of the scheduled witness will proceed
ex-parte. with the absent party being deemed to have waived
the right to interpose objection and conduct
PRE-TRIAL ORDER cross-examination.
The pre-trial order governs the trial proceedings. The contents of the pre-trial order shall control the
subsequent proceedings, unless modified before trial
Example: there is a stipulation of facts there where the to prevent manifest injustice.
defendant issued a promissory note in favor of the
plaintiff. Then you presented evidence before the court JUDICIAL DISPUTE RESOLUTION
to prove the defendant issued the promissory note in
favor of the plaintiff, your attention will be called. The The judicial dispute resolution is not anymore
judge will tell you, “did you read the pre-trial order? Is it mandatory. It will only be conducted if the judge
not stated there that the fact that the defendant issued a where the case is originally raffled is convinced that
promissory note in favor of the plaintiff is already settlement can be reached. In which case, the JDR
admitted? Why do you have to prove the same?” Hence, it will be conducted by a different court which shall be
is no longer necessary since there is already stipulation conducted for a period of 15 days which is
of facts in the pre-trial. non-extendible.
The following matters must be stated in the If judicial dispute resolution fails, trial before the

original court shall proceed on the dates agreed upon. P. Subpoena (Rule 21)
Who conducts the JDR? Subpoena → a process directed to a person requiring

him or her to attend and to testify at the hearing or the
A different judge. trial of an action, or at any investigation conducted by
competent authority, or for the taking of his or her
Whose discretion is the conduct of JDR will deposition.
depend?
Subpoena duces tecum → requiring a person to
The judge of the court to which the case is pending. bring with him or her any books, documents, or other
things under his or her control.
Judge Gito: So, if the case is pending before me, it's
my discretion to refer the case to JDR. If I think there WHO MAY ISSUE
is no possibility between the parties to enter into an
amicable settlement, it’s useless for me to refer the 1) The court before whom the witness is required
case to JDR. But if you are asked who will conduct to attend;
JDR, it is not the court to whom the case was raffled
but a different judge. 2) The court of the place where the deposition is
to be taken;
JUDGMENT AFTER PRE-TRIAL
3) The officer or body authorized by law to do so
Under the new Rules, the judgment on the pleadings in connection with investigations conducted
or summary judgment may be done by the Court motu by said officer or body; or
propio, of course with prejudice to the right of the
party to file a motion to that effect. 4) Any Justice of the Supreme Court or the Court
of Appeals in any case or investigation
If the court decides to render judgment on the pending within the Philippines.
pleadings or summary judgment, the same must be
stated in the pretrial order. QUASHING A SUBPOENA
The Court shall decide the case within 90 days from 1. subpoena duces tecum — Upon motion
the termination of the pre-trial. promptly made and, in any event, at or before
the time specified therein if it is unreasonable
K. Intervention (Rule 19) and oppressive, or the relevancy of the books,
documents or things does not appear, or if the
It is a proceeding in a suit or action by which a third person in whose behalf the subpoena is
person is permitted by the court to make himself a issued fails to advance the reasonable cost of
party, either by joining the plaintiff in claiming what is the production thereof.
sought by the complaint or uniting with the defendant
in resisting the claims of the plaintiff. 2. Subpoena ad testificandum — On the
ground that the witness is not bound thereby.
Who may intervene?
In either case, the subpoena may be quashed
L. A person who has a legal interest in the matter in on the ground that the witness fees and
litigation; kilometrage allowed by these Rules were not
tendered when the subpoena was served.
1. The legal interest must be actual, material, direct
and of an immediate character, not merely SUBPOENA FOR DEPOSITIONS
contingent or expectant, so that the intervenor will
either gain or lose by the direct legal operation of Proof of service of a notice to take a deposition shall
judgment. constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by
M. or in the success of either of the parties,; the clerk of the court of the place in which the
deposition is to be taken.
N. or an interest against both, or is so situated as to
be adversely affected by a distribution or other The clerk shall not, however, issue a subpoena duces
disposition of property in the custody of the court. tecum to any such person without an order of the
court.
O. Calendar of Cases (Rule 20)
COMPELLING ATTENDANCE

In case of failure of a witness to attend, the court or ■ Deposition Pending Action (Rule 23)
judge issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may issue a ■ Deposition before action or pending appeal
warrant to the sheriff of the province, or his or her (Rule 24)
deputy, to arrest the witness and bring him or her
before the court or officer where his or her attendance ■ Interrogatories to parties (Rule 25)
is required, and the cost of such warrant and seizure
■ Admission by adverse party (Rule 26)
of such witness shall be paid by the witness if the
court issuing it shall determine that his or her failure to ■ Production or Inspection of Documents (Rule
answer the subpoena was willful and without just 27)
excuse.
■ Physical or mental examination of Persons
It not apply to a witness who resides more than one (Rule 28)
hundred (100) kilometers from his or her residence to
the place where he or she is to testify by the ordinary 1. Depositions (Rules 23 and 24)
course of travel, or to a detention prisoner if no
permission of the court in which his or her case is To simplify, deposition means the taking of testimony.
pending was obtained. It is no different from testifying in court where the case
is pending. That is actually what happens also in the
CONTEMPT taking of deposition. The only difference is that it is
done outside of the court. It may be done not before
Failure by any person without adequate cause to obey the judge, but it may be done by a person authorized
a subpoena served upon him or her shall be deemed a to take deposition.
contempt of the court from which the subpoena is
issued. But if you are going to analyze the nature of
deposition, it is just taking of testimony of a person,
This will not apply to a witness who resides more than whether he be a party or not but at the instance of a
one hundred (100) kilometers from his or her residence party to the action and usually this is taken outside of
to the place where he or she is to testify by the court.
ordinary course of travel, or to a detention prisoner if
no permission of the court in which his or her case is
pending was obtained.
Q. Computation of time (Rule 22)
The day of the act or event from which the designated

period of time begins to run is to be excluded and the
date of performance included. If the last day of the
period, as thus computed, falls on a Saturday, a
Sunday, or a legal holiday in the place where the court
sits, the time shall not run until the next working day.
(Sec. 1, Rule 22)
Should an act be done which effectively interrupts the

running of the period, the allowable period after such
interruption shall start to run on the day after notice of If deposition is taken when the case is pending action,
the cessation of the cause thereof. The day of the act it is called deposition de benne esse.
that caused the interruption shall be excluded in the
computation of the period. (Sec. 2, Rule 22) If the deposition is taken before the existence of the
action, for appeal, it is called deposition in
R. Modes of discovery perpetuam rei memoriam.
Judge Gito: There are six modes of discovery under RULE 23 - DEPOSITIONS PENDING ACTION
the Rules. From Rule 23-28. Rule 29 is also part of the
provision on discovery but Rule 29 is very important
inasmuch as it gives us the effect if there is Is it necessary to ask permission from the court for
noncompliance with the modes of discovery. That is the taking of deposition if there is a pending
something that you can really use to your advantage. action?
Modes of Discovery (Rule 23-29) The answer is YES. It is a non-litigious motion. Ex

parte nga eh. Ibig sabihin, the taking of the deposition

will be more or less granted by the court. Or the ■ For example, we do not have a
tendency of the court when you file such motion is to diplomatic/consular office in Nigeria. So if the
grant it. Ex parte nga eh. It will not prejudice the other witness is in Nigeria, deposition will be taken
party. before a person authorized by a commission
to take the deposition. Who is the
Pagka-file ng action, you can file an ex parte motion commission? The court. It is the court which
for the taking of the deposition. will commission somebody to take the
deposition of somebody who is residing in a
WHOSE DEPOSITION MAY BE TAKEN? foreign country where the Philippines does not
have a consular office.
Any person, whether a party or not, may be taken.
(Section 1, Rule 23). Letters Rogatory – is an instrument whereby the
foreign court is informed of the pendency of the case
Example: a complaint is filed against the defendant. and in the name of a foreign witnesses, and is
The defendant filed an answer. Can the plaintiff take requested to cause their depositions to be taken in
the deposition of the defendant? The answer is yes due course of law, for the furtherance of justice, with
because any person, whether a party or not, their an offer of the party of the court making the request,
deposition may be taken. to do like for the other, in similar case.
BEFORE WHOM MAY DEPOSITION BE TAKEN? ■ It is a letter from a foreign court requesting a
local court to take the deposition of a person
It would depend on the place where the deposition subject to the jurisdiction of the local court.
shall be taken. Please take note that this letter of a foreign
court would pass through diplomatic
If deposition will be taken within the channels. Meaning to say, the requesting
Philippines: court in Germany will give the letter to the
Philippine Embassy in Germany, then from
a) Judge of the place where deposition there to the Philippines, from Philippines to
will be taken SC Court Administrator, and then to me. And
b) Notary public then the same route will be availed of in going
c) Person authorized to administer oath back to the requesting court.
If in foreign country:
HOW IS DEPOSITION TAKEN
a) Secretary of embassy or legation -
ambassador 1. Deposition upon oral examination
b) Consul general 2. Deposition upon written interrogatories
c) Consul
d) Vice consul DEPOSITION UPON ORAL EXAMINATION
e) Consular agent
f) Person as may be appointed by Section 15. Deposition upon oral examination; notice;
commission or letters rogatory time and place. — A party desiring to take the
g) Person authorized to administer oath deposition of any person upon oral examination shall
give reasonable notice in writing to every other party
Rule 23, Section 12. Commission or letters rogatory. – to the action. The notice shall state the time and place
A commission or letters rogatory shall be issued only for taking the deposition and the name and address of
when necessary or convenient, on application and each person to be examined, if known, and if the name
notice, and on such terms and with such direction as is not known, a general description sufficient to
are just and appropriate. Officers may be designated in identify him or the particular class or group to which
notices or commissions either by name or descriptive he belongs. On motion of any party upon whom the
title and letters rogatory may be addressed to the notice is served, the court may for cause shown
appropriate judicial authority in the foreign country. enlarge or shorten the time.
Commission vs. Letters Rogatory It is like taking testimony in court. The only difference
is that it is not in court where it is taken. It is outside of
Commission – is authorization given to somebody, the court. But as to the procedure and the manner,
other than consular officers, to take the deposition of parehas lang din. Question and answer lang din.
the deponent. It is usually issued when the Philippines
has no consular office in a particular country. So how do we take up deposition by oral
examination?

Ang una niyong gagawin ay mag file ng ex parte be taken. Within ten (10) calendar days thereafter, a
motion to take the deposition, for example, of a party so served may serve cross-interrogatories upon
witness. So it will be granted by the court. So I am the party proposing to take the deposition. Within five
allowed to take the deposition of a supposed witness. (5) calendar days thereafter, the latter may serve
re-direct interrogatories upon a party who has served
Let us say that the case is pending in Muntinlupa. The cross-interrogatories. Within three (3) calendar days
witness is located in Davao City. And because of the after being served with re-direct interrogatories, a
difficulty of travel, I just filed a motion to take the party may serve recross-interrogatories upon the party
deposition of such witness. And it was granted by the proposing to take the deposition.
court. What comes next? Simple lang. I will just notify
the other party, yung kalaban ko, that I will take the How do we operationalize it? Mag-file ka ng ex parte
deposition of Mr. Juan dela Cruz on such and such a motion to take the deposition of a party or a person
date and on such time before a particular person. It’s through written interrogatories. Then if it is granted,
either a judge, a notary public, or a person authorized you will notify the other party that you are to take the
to administer oath. deposition of somebody before a judge. But not just a
notification. Along the notification, are the questions to
After notifying, then we will go there at the appointed be asked. So yung tanong mo, ibibigay mo sa
time and place and then we will take the deposition of opposite party. The opposite party will be given the
that person before the judge. So I will ask questions opportunity to formulate and prepare cross
and he can also cross examine the witness and interrogatories. Parang cross-examination.
everything will be recorded.
Anong gagawin niya sa cross-interrogatories? He will
Section 16 – Orders for the protection of parties give the same to the requesting party. The requesting
and depositions party can prepare re-direct interrogatories, which will
also be sent to the opposite party. And then the
If you are the one who received notice, ano naman opposite party will prepare re-cross interrogatories.
ang pwede mong gawin? You can do anything to
protect your interest. For example, you are not So there are four sets of questions:
available on the time indicated in the notice. Of course
you are going to file a notice in the court to change the 1. Direct interrogatories
time or any other order for protection. 2. Cross-interrogatories
3. Re-direct interrogatories
Section 17 – Record of examination; oath; 4. Re-cross-interrogatories
objection
These questions will be sent to the deposition officer.
Ang sinasabi lang dito parang direct examination. And on such and such time and date of the taking of
Pwede ka mag cross examination. Yung mga the deposition, the person whose deposition will be
objection irerecord lang. Pero yung deposition officer, taken shall go there. And the deposition officer will ask
hindi siya magru-rule sa objection. these questions. Everything will be recorded.
Section 18 – Motion to terminate or limit What if the party sought to be examined refused to
examination appear?
Kapag ang examination sobrang tagal, alangan naman The attendance of witnesses may be compelled by the
3 months kayo sa Davao para lang mag take ng use of subpoena under Rule 21. The court which of
deposition. So punta ka sa court where the case is the place where the deposition shall be taken will
pending. “Judge masyadong taxing na on our part issue a subpoena. You apply for the subpoena with
ang taking ng deposition.” So you are asking the court the clerk of the court of the place in which the
for protection. deposition is to be taken.
DEPOSITION UPON WRITTEN INTERROGATORIES WHAT MAY BE ASKED DURING THE TAKING OF
DEPOSITION?
Rule 23, Section 25. Deposition upon written
interrogatories; service of notice and of Unless otherwise ordered by the court as provided by
interrogatories. – A party desiring to take the Section 16 or 18 of this Rule, the deponent may be
deposition of any person upon written interrogatories examined regarding any matter, not privileged,
shall serve them upon every other party with a notice which is relevant to the subject of the pending action,
stating the name and address of the person who is to whether relating to the claim or defense of any other
answer them and the name or descriptive title and party, including the existence, description, nature,
address of the officer before whom the deposition is to custody, condition, and location of any books,

documents, or other tangible things and the identity For what purpose it may be used:
and location of persons having knowledge of relevant
facts. ● For impeaching purposes if the deponent is a
witness
Limitations on deposition taking:
● It may be used for any purpose if the
● Matter inquired into is not privileged. deponent is a party
● Matter inquired into is relevant pending action.
● Court may issue order to protect the parties Example: you take the deposition of a witness. But you
(Sec. 16 & 18). did not use the deposition of the witness. Sabi mo
● marami ka pa naman testigo so hindi mo muna
gagamitin. Then that witness whose deposition you took,
Rule 23, Section 6. Objections to admissibility. – was used as a witness by the opposite side. Can you
Subject to the provisions of [S]ection 29 of this Rule, object because you have taken his deposition? The
objections may be made at the trial or hearing to answer is no.
receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the So ganito ang nangyari, kinuha mo yung deposition ni Mr.
evidence if the witness were then present and Dela Cruz. Pero hindi mo ginamit si Mr. Dela Cruz na
testifying. testigo. Itong kabilang partido ginamit si Mr. Dela Cruz
bilang testigo. Ngayon, nag testify siya. Napansin mo sa
When can you object on the admissibility of the kanyang testimony, parang iba yung kanyang sinasabi
deposition? dun sa sinabi niya during the time that his deposition
was being taken. So what are you going to do? You can
You cannot object on the admissibility of the impeach the testimony of said witness by using the
deposition at the time of its taking. The proper time to deposition that you have taken from him, in order to
object on the deposition is when the deposition is impeach the testimony of said witness.
used during trial or hearing to receive evidence.
Deposition may be used for any purpose if:
As a general rule, the taking of deposition is not
objectionable. Because that is a mode of discovery. 1) That the witness is dead; or
But when you use the deposition, that’s a different
matter. That is now subject to objection from the other ■ Pag nakuhanan niyo ng deposition
party if there are grounds for objection. yung testigo na iyon at namatay siya,
okay na. You can use the deposition
of said witness in court as if that
USE OF DEPOSITION person testified in court. And you can
even use it against the opposite party
In what proceedings may it be used either participated in the taking of the
deposition or had notice of the taking
● Trial of the deposition.
● Hearing of motion
● Hearing of interlocutory proceeding 2) That the witness resides at a distance more
than one hundred (100) kilometers from the
Against whom may it be used place of trial or hearing, or is out of the
Philippines, unless it appears that his or her
● Against any party who was present absence was procured by the party offering
● Against a party who was not present but the deposition; or
notified
3) That the witness is unable to attend or testify
Example: you filed for an ex parte motion for the taking because of age, sickness, infirmity, or
of the deposition of a person who is residing in Davao. It imprisonment; or
was granted by the court. So you are going to take the
4) That the party offering the deposition has
deposition of such person through an oral examination.
been unable to procure the attendance of the
So what do you do? You notify the other party of the day,
witness by subpoena; or
time, place, and before whom the deposition shall be
taken. He was notified but he did not appear. You
5) Upon application and notice, that such
proceeded with the deposition. Can you take the
exceptional circumstances exist as to make it
deposition against that party? The answer is yes. Despite
desirable, in the interest of justice and with
the fact that he was not present, as long as he is notified,
due regard to the importance of presenting
you can use the deposition against such party.
the testimony of witnesses orally in open

court, to allow the deposition to be used. each, and shall ask for an order authorizing
the petitioner to take the depositions of the
Effect of taking depositions persons to be examined named in the petition
for the purpose of perpetuating their
The fact that you have taken the deposition of that testimony. (Section 2, Rule 24)
person will not make that person your witness. That is
not automatic. PROCEDURE
Effect of using depositions 1. File petition (Sec. 2)
When you use the deposition of a person as evidence, 2. Petitioner shall serve notice to all person
that person is your witness already. Therefore, you are named in the petition (Sec. 3)
bound by his testimony. But, the mere taking of
3. If the court is satisfied, it shall issue an order
deposition will not make the deponent your witness.
granting the petition. (Sec. 4)
The deponent will only become your witness if you
use his or her deposition. 4. Deposition taking will follow in accordance
with Rule 23. (Sec. 4)
RULE 24 - DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL ■ Either by oral examination or written
interrogatories.
You can already take the testimony of a person even if
there is yet no case filed in court. DEPOSITIONS PENDING APPEAL
DEPOSITIONS BEFORE ACTION

Rule 24, Section 7. Depositions pending appeal. – If
an appeal has been taken from a judgment of a court,
Rule 24, Section 1. Depositions before action; including the Court of Appeals in proper cases, or
petition. – A person who desires to perpetuate his or before the taking of an appeal if the time therefor has
her own testimony or that of another person regarding not expired, the court in which the judgment was
any matter that may be cognizable in any court of the rendered may allow the taking of depositions of
Philippines, may file a verified petition in the court of witnesses to perpetuate their testimony for use in the
the place of the residence of any expected adverse event of further proceedings in the said court. In such
party. case the party who desires to perpetuate the testimony
may make a motion in the said court for leave to take
Note: The venue is the court of the place of the the depositions, upon the same notice and service
residence of any expected adverse party. thereof as if the action was pending therein.
How do you do it? You do not just request from the There are situations wherein you would like to present
court kasi there is no case pa. You file a petition in a witness in court but the court would not allow you to
court that you are going to take the deposition of present said witness. Even if you insist to that the
somebody. testimony of such witness is very material and
important and it is very critical insofar as the pure
CONTENTS OF PETITION cause or defense is concerned and it is still not
allowed by the court. Tapos natalo kasi hindi nga
a) that the petitioner expects to be a party to an nakapag testify yun.
action
So nag appeal ka. So anong pwedeng mangyari sa
b) the subject matter of the expected action and appeal? You will assign as one of the assignment of
his interest therein; errors that the fact that the court erred in disallowing
you to present your supposed witness. What if the
c) the facts which he desires to establish by the decision of the court is reversed in the appellate court
proposed testimony and his reasons for tapos sabi sa appellate court “Mali ang korte sa hindi
desiring to perpetuate it; pagpayag na tanggapin ang testimonya ng taong ito.”
So ibalik/iremand sa court a quo for the reception of
d) the names or a description of the persons he
additional evidence of a party and then the court
expects will be adverse parties and their
decides after reception of evidence.
addresses so far as known; and
e) the names and addresses of the persons to You know appeal takes long time. What if at the time
be examined and the substance of the the CA or the appellate court orders the remand of the
testimony which he expects to elicit from case to the court a quo patay na yung testigo mo? So

anong futility ng pagremand ng kaso sa baba? Kaya Effect of failure to serve written interrogatories
tayo merong deposition pending appeal.
Rule 25, Section 6. Effect of Failure to Serve Written
So you just file for a motion on the court a quo for the Interrogatories – Unless thereafter allowed by the
taking of the deposition of that person for further court for good cause shown and to prevent a failure of
proceedings. And if it is granted by the court, then the justice, a party not served with written interrogatories
taking of deposition is in accordance with Rule 23. It is may not be compelled by the adverse party to give
either upon oral examination or upon written testimony in open court, or to give a deposition
interrogatories. pending appeal.
CONTENTS OF THE MOTION

If you want to make the other party an adverse
witness, you can only do so if you have served written
a) The names and addresses of the persons to
interrogatories to such party.
be examined and the substance of the
testimony which he or she expects to elicit
3. Admission by adverse party (Rule 26)
from each; and
When can you request for admission from the
b) the reason for perpetuating their testimony.
adverse party?
2. Interrogatories to parties (Rule 25)
At any time after issues have been joined. After the
answer has already been filed and issues have been
If you want to subject the other party to written
joined, you are then allowed to request for admission.
interrogatories, you file an ex parte motion to conduct
interrogatories to parties.
If you know your facts, and facts of the other party,
you can request for admission. Why? If this fact has
N.B. Please take note that written interrogatories
already been admitted by the other party, then he is
under Rule 25 are directed to the adverse party, not to
bound by such admission. He will no longer be
strangers. It should not be confused with written
allowed to present evidence that would be contrary to
interrogatories under Rule 23. Under Rule 23, it is the
such admission because that is already a juridical
deposition officer who will ask the questions, whereas
admission.
in Rule 25, there is no deposition officer.
What is the obligation of the opposite party? What
Interrogatories under Rule 23 & Rule 25
is the effect if the opposite party just ignored your
request for admission?
RULE 23 RULE 25
When you request for an admission and it was ignored
There is deposition No deposition officer by the other party then that is to your advantage.
officer Because any matter that you request for admission
will be considered admitted if the other party did not
Questions are prepared Directed to parties deny it or did not do anything about it. (Rule 26,
beforehand Section 2)
Party or not may be Not applicable to Can you object to the admission?
taken stranger
Yes. You can make an objection within 15 days (that is
the period to file an answer to the request for
Rule 25, Section 5. Scope and Use of Interrogatories –
admission and also the period to interpose your
Interrogatories may relate to any matters that can be
objection.)
inquired into under Section 2 of Rule 23, and the
answers may be used for the same purposes provided If the actionable document is already denied under
in Section 4 of the same Rule.
oath, it need not be subject of request for
admission
Any matter which is relevant and not privileged may
be subject to written interrogatories. Ano ba ibig A party should not be compelled to admit matters of
sabihin nun? Magpapadala ka lang ng tanong dun sa fact already admitted by his pleading and concerning
adverse party. Mag file ka lang ex parte motion, if it is which there is no issue, nor should he be required to
granted, then send written interrogatories to the other make a second denial of those already denied in his
party. So yung other party required mag sagot nung answer to the complaint. A request for admission is
written interrogatories. not intended to merely reproduce or reiterate the
allegations of the requesting party's pleading but

should set forth relevant evidentiary matters of fact, or d) Such documents, etc. are not privileged;
documents described in and exhibited with the
request, whose purpose is to establish said party's e) Such documents, etc. constitute or contain
cause of action or defense. Unless it serves that evidence material to any matter involved in the
purpose, it is, as correctly observed by the Court of action; and
Appeals, "pointless, useless," and "a mere
redundancy." (Po v. CA) f) Such documents, etc. are in the possession,
custody or control of the other party (Security
If the request is addressed to the lawyer of the Bank vs. CA)
adverse party and the latter did not answer the
request, would it have the effect of admitting the Distinguish Rule 27 from Subpoena Duces Tecum
matters subject of the request?
■ There is a need to show good cause for
No. The SC held that request for admission must be production or inspection of documents while
served directly upon the party requested. Otherwise, good cause is not required in subpoena duces
that party cannot be deemed to have admitted the tecum.
genuineness of any relevant matters of the fact set
forth therein on account of the failure to answer the ■ An order for production or inspection of
request for admission (Lanada vs. CA) documents can only be directed to a party
while subpoena duces tecum may be directed
The admission of fact must be addressed to a party, to a non-party.
not to a lawyer.
■ An order for production or inspection of
documents is a pre-trial device to obtain fact
4. Production or inspection of documents or
to prepare for trial while subpoena duces
things (Rule 27)
tecum is a process used during trial proper.
What is the purpose of inspection or production of
Chan vs. Chan, 2013
documents and how do you do it?
If sought to be examined is a record regarding the
You do it by filing a motion in court. If you want to drug rehabilitation of a party, then such matter cannot
inspect or produce the document that will be used as be the subject of an order for examination of
evidence or, for example, the subject matter to documents because it is a matter of privilege.
recover possession, sabi may improvement tapos
gusto mo makita yung improvement, you can file for Insigne vs. Abra Valley Colleges, 2015
inspection, to inspect the land which is the subject
matter of the case. And that is allowed under Rule 27. In a complaint for inspection of corporate books, the
plaintiff can file for a motion for production/inspection
Its purpose is to produce and permit the inspection of documents to compel the defendant to produce the
and copying or photographing, by or on behalf of the stock-and-transfer book, even if the latter interpose
moving party, of any designated documents, papers, the defense that plaintiff is not a stockholder.
books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or 5. Physical and mental examination of persons
contain evidence material to any matter involved in the (Rule 28)
action and which are in his possession, custody or
control. (Sec. 1, Rule 27)
Rule 28, Section 1. When examination may be
ordered. – In an action in which the mental or
REQUISITES
physical condition of a party is in controversy, the
court in which the action is pending may in its
a) The party must file a motion for the production
discretion order him or her to submit to a physical or
or inspection of documents or things, showing
mental examination by a physician.
good cause therefor;
b) Notice of the motion must be served to all Examples:

other parties of the case;
1. Petition for guardianship.
c) The motion must designate the documents,
papers, books, accounts, letters, ■ Sino ba ang pwede masubject sa
photographs, objects or tangible things which guardianship? Those who are insane.
the party wishes to be produced and So pag hindi ka insane, dismissed ang
inspected; petition for guardianship. So you can
ask for the examination of the

supposed ward for mental under Rules 23 or 25.

examination to see to it whether there
is a need for the court to grant an Other consequences of refusal to answer question
issue for guardianship. during deposition, or order production or
inspection of documents or things under Rule 27
2. Action for annulment of contract on the or refused to submit himself for examination under
ground of insanity Rule 28
3. Action to recover damages for personal injury 1) You can file a motion in court where the case
where the issue is the extent of the injuries to is pending in order for that court to issue an
the plaintiff order that the matters regarding which the
questions were asked, or the character or
When may physical or mental examination be description of the thing or land, or the
taken? contents of the paper, or the physical or
mental condition of the party, or any other
Upon order of the court. Before the court orders it, designated facts shall be taken to be
you have to file a motion. So you file a motion for established for the purposes of the action in
physical/mental examination. accordance with the claim of the party
obtaining the order (Sec. 3(a), Rule 29).
The one entitled to the result of the mental or physical
examination is the party examined because of the ■ Example: kaya ka nag file ng motion
effect of patient-doctor privilege. What the requesting for physical examination, especially in
part may do is to request for the result from the party damages cases, is because you are
examined. The court may compel the party examined doubtful of the extent of injuries. The
to furnish the requesting party a copy of the result of court granted your motion for physical
the examination. examination. But the other party
refuses to be examined or was
What is the effect if the party examined requests examined but refuses to give a copy
and obtains a report of the examination so of the result of the examination to the
ordered or takes the deposition of the examiner? other party. If that is the case, you
may file a motion in court for the court
By requesting and obtaining a report of the to issue an order that whatever your
examination so ordered or by taking the deposition of claim or reason for your motion for
the examiner, the party examined waives any privilege examination will be considered as
he may have in that action or any other involving the established.
same controversy, regarding the testimony of every
other person who has examined or may thereafter 2) You may also file a motion in court to issue an
examine him in respect of the same mental or physical order refusing to allow the disobedient party
examination (Sec. 4, Rule 28). to support or oppose designated claims or
defenses or prohibiting him from introducing
What if the party examined refused to deliver the in evidence designated documents or things
report or the physician fails to make such report, or items of testimony, or from introducing
what is the remedy of the requesting party? evidence of physical or mental condition (Sec.
3(b), Rule 29).
If the party examined refuses to deliver such report,
the court on motion and notice may make an order ■ Merong order for physical/mental
requiring delivery on such terms as are just, and if a examination but the party does not
physician fails or refuses to make such a report the want to be physically examined, so
court may exclude his testimony if offered at the trial what is your remedy? You file for a
(Sec. 3e, Rule 28). motion in court for the court to issue
an order that if they are going to
6. Refusal to comply with modes of discovery introduce evidence of the physical
(Rule 29) and mental condition of the party,
they shall be barred from presenting
Refusal to Answer such evidence.
The proponent may thereafter apply to the proper ■ Or if you are asking for the production
court of the place where the deposition is being taken, of document but it was refused by the
for an order to compel an answer. The same other party, you can file for a motion
procedure may be availed of when a party or a in court for the court to issue an order
witness refuses to answer any interrogatory submitted that in the event that such party would

present as evidence such document

that you are requesting to be
produced, he should not be allowed.
3) You can also ask the court to issue an order

striking out pleadings or parts thereof, or
staying further proceedings until the order is
obeyed, or (if the disobedient party is the
plaintiff) dismissing the action or proceeding
or any part thereof, or (if the disobedient party
is the defendant) rendering a judgment by
default against the disobedient party (Sec.
3(c), Rule 29) What is the period of time within which to
terminate the trial?
■ This remedy is available in case of
failure of the party to attend in The trial dates may be shortened depending on the
deposition taking or failed to serve
number of witnesses to be presented, provided that
answers to written interrogatories
the presentation of evidence of all parties shall be
under Rule 25
terminated within a period of 10 months or 300
calendar days.
4) And also, in lieu of any of the foregoing orders
or in addition thereto, an order directing the If there are no third (fourth, etc.)-party claim,
arrest of any party or agent of a party for
counterclaim or cross-claim, the presentation of
disobeying any of such orders except an order
evidence shall be terminated within a period of 6
to submit to a physical or mental examination.
months or 180 calendar days.
(Sec. 3(d), Rule 29).
■ If the order of the court is to subject a Summary of periods to present of evidence

person to physical or mental
examination and this is disobeyed, ● 90 days for plaintiff
they cannot be arrested. ● 90 days for defendant [includes his evidence
for counterclaim, cross-claim or third-party
■ Those who refuse to produce complaint]
documents, those who refuse to
appear during the conduct of ● 90 days for the third-party defendant or
deposition, those who refuse to allow fourth-party defendant, if any.
inspection of documents or premises, ● 30 days for rebuttal and surrebuttal
you can file for a motion for the court evidence [Both for plaintiff and defendant –
to arrest these disobedient persons. total of 30 days. NOT 30 days each.]
S. Trial (Rule 30) = 300 DAYS FOR THE TRIAL.
The new Rules adopts the continuous trial system in

civil cases. Under this system, the parties are Period to decide the case
enjoined to strictly follow the schedule of trials agreed
upon in the pretrial order. The court shall decide and serve copies of its decision
to the parties within a period not exceeding ninety (90)
The initial presentation of plaintiff’s evidence shall be calendar days from the submission of the case for
set not later than thirty (30) calendar days after the resolution, with or without memoranda.
termination of the pre-trial conference.
ORDER OF TRIAL
1. Plaintiff’s evidence on his claim
2. Defendant’s evidence on his defense,

cross-claim or counterclaim
3. Third party defendant

4. Fourth party, if any What is Demurrer to Evidence?
5. Parties against whom, counterclaim, Demurrer to Evidence is filed by the defendant to

cross-claim has been pleaded move for dismissal on the ground of insufficiency of
evidence or that upon the facts and the law the
6. Parties rebuttal evidence plaintiff has shown no right to relief.
7. Submitted for decision This can be likened to motion to dismiss.
Oral offer of exhibits Res judicata is a proper ground for demurrer.

(Republic vs. Tuvera)
The offer of evidence, the comment or objection
thereto, and the court ruling shall be made orally in Is it required to file a motion for leave to file
accordance with Sections 34 to 40 of Rule 132. demurrer to evidence?
T. Consolidation or severance (Rule 31) No. In civil cases, there is no requirement to file a
Consolidation motion for leave to file demurrer to evidence.
When actions involving a common question of law or Denial of demurrer

fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the Defendant will present evidence. The denial of
actions; it may order all the actions consolidated; and demurrer is not a final order; it is an interlocutory
it may make such orders concerning proceedings order. (Katigbak vs. Sandiganbayan) Thus, it shall not
therein as may tend to avoid unnecessary costs or be subject of an appeal or petition for certiorari,
delay. prohibition or mandamus before judgment.
Separate trials Grant of demurrer
The court, in furtherance of convenience or to avoid The case is dismissed.

prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, or If the order is reversed in the appellate court, the
of any separate issue or of any number of claims, defendant loses his right to present evidence.
cross[-]claims, counterclaims, third-party complaints
or issues. It is not correct for the appellate court to remand the
case for further proceedings. The correct procedure is
U. Demurrer to Evidence (Rule 33) for the appellate court to render judgment based on
the pieces of evidence presented by the plaintiff
Rule 33, Section 1. Demurrer to evidence. – After the (Radiowealth Finance Corp. vs. Del Rosario)
plaintiff has completed the presentation of his or her
evidence, the defendant may move for dismissal on V. Judgments and final orders
the ground that upon the facts and the law the plaintiff
has shown no right to relief. If his or her motion is Judgment is the final ruling by the court of competent
denied, he or she shall have the right to present jurisdiction regarding the rights or other matters
evidence. If the motion is granted but on appeal the submitted to it in an action or proceeding (Macahilig
order of dismissal is reversed, he or she shall be vs. Heirs of Gracia M. Magalit)
deemed to have waived the right to present evidence.
Requisites of a Valid Judgment
Rule 33, Section 2. Action on demurrer to evidence. –
A demurrer to evidence shall be subject to the a) Court must have jurisdiction over the case
provisions of Rule 15. The order denying the demurrer
to evidence shall not be subject of an appeal or petition b) Court must have jurisdiction over the parties
for certiorari, prohibition or mandamus before and subject matter
judgment.
c) Parties must be given an opportunity to
adduce evidence in their behalf.
After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal d) Evidence must have been considered.
on the ground that upon the facts and the law the
plaintiff has shown no right to relief. He may file a e) In writing personally and directly prepared by
Demurrer to Evidence. the judge, stating clearly and distinctly the
facts and the law on which it is based, signed

by him. been actually taken. It may be used to make the

record speak the truth, but not to make it speak what
How to resolve the conflict between the body and it did not speak but ought to have spoken
the dispositive portion (Briones-Vasquez vs. CA)
General rule: The dispositive portion of the decision FINAL ORDER V. INTERLOCUTORY ORDER
shall prevail.
A final order disposes of the subject matter in its
However: If the inevitable conclusion from the body of entirety or terminates a particular proceeding or
the decision is so clear that there was a mere mistake action, leaving nothing more to be done except to
in the dispositive portion, the body of the decision enforce by execution what the court has determined,
shall prevail (So vs. Food Fest Land, Inc.) but the latter does not completely dispose of the case
but leaves something else to be decided upon.
JUDGMENT UPON COMPROMISE
An interlocutory order deals with preliminary matters
This is a judgment rendered by the court on the basis and the trial on the merits is yet to be held and the
of the a compromise agreement entered between the judgment rendered.
parties to the action. Once approved by the court, a
judicial compromise is not appealable and it thereby The test to ascertain whether or not an order or a
becomes immediately executory. judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court
DOCTRINE OF THE LAW OF THE CASE with respect to the merits of the case? If it does, the
order or judgment is interlocutory; otherwise, it is
What ever is once irrevocably established as final. (Spouses Teves vs. Integrated Credit &
controlling legal rule or decision between the same Corporate Services)
parties in the case continues to be the law of the case,
whether correct on general principles or not, so long Remedy in Interlocutory Order
as the fact on which such decision was predicated
continue to be the facts before the court (RCPI vs. CA) The proper remedy to question an improvident
interlocutory order is a petition for certiorari under
DOCTRINE OF IMMUTABILITY OF JUDGMENT Rule 65, not rule 45.
Under the doctrine of immutability of judgments, a A petition for review under Rule 45 is the proper mode
judgment that has attained finality can no longer be of redress to question only final judgments (Silverio,
disturbed. Thus, issues actually and directly resolved Jr., vs. Filipino Business Consultants)
in the former suit cannot again be raised in any future
case between the same parties. (Pinero vs. NLRC) 1. Judgment on the pleadings (Rule 34)
The doctrine prohibits any alteration, modification, or Rule 34, Section 1. Judgment on the pleadings. –
correction of final and executory judgments as what Where an answer fails to tender an issue, or otherwise
remains to be done is the purely ministerial admits the material allegations of the adverse party’s
enforcement or execution of the judgment. (Tabalno v. pleading, the court may, on motion of that party, direct
Dingal) judgment on such pleading. However, in actions for
declaration of nullity or annulment of marriage or for
General rule: final and executory judgments are legal separation, the material facts alleged in the
immutable and unalterable complaint shall always be proved.
Exceptions:
When do we say that an answer fails to tender an
issue?
1. clerical errors
2. nunc pro tunc entries which cause no
If it does not comply with the requirements of specific
prejudice to any party
denial under Secs. 8 and 10 of Rule 8.
3. void judgments
What is the effect when there is non-compliance
JUDGMENT NUNC PRO TUNC
with the requirements of specific denial?
The office of a judgment nunc pro tunc is to record
The material averments or allegations in the complaint
some act of the court done at a former time which
not specifically denied are deemed admitted.
was not then carried into the record, and the power of
a court to make such entries is restricted to placing
Thus, if you are the counsel, you file a motion for
upon the record evidence of judicial action which has

judgment on the pleadings. By not specifically place of trial.

denying the material allegations in the complaint, there
is an implied admission of the the allegations in the Is there a factual issue in a summary judgment?
Complaint.
YES. The answer tenders an issue, but the issue is not
Rule 34, Section 2. Action on motion for judgment on genuine.
the pleadings. – The court may motu proprio or on
motion render judgment on the pleadings if it is If the issues are genuine, you have to go to trial. You
apparent that the answer fails to tender an issue, or can only file a motion for summary judgment if there is
otherwise admits the material allegations of the no genuine issue. Either party – plaintiff or defendant –
adverse party’s pleadings. Otherwise, the motion shall may file a motion for summary judgment.
be subject to the provisions of Rule 15 of these Rules.
Rule 35, Section 1. Summary Judgment for Claimant.
Any action of the court on a motion for judgment on — A party seeking to recover upon a claim,
the pleadings shall not be subject of an appeal or counterclaim, or crossclaim or to obtain a declaratory
petition for certiorari, prohibition or mandamus. relief may, at any time after the pleading in answer
thereto has been served, move with supporting
The new rules allows the court to motu propio render affidavits, depositions or admissions for a summary
judgment on the pleadings if it apparent that the judgment in his favor upon all or any part thereof.
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s Rule 35, Section 2. Summary Judgment for
pleadings. If it is by motion from the party, then the Defending Party. — A party against whom a claim,
procedure in Rule 15 shall apply. counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move
Remember that what is not appealable is the with supporting affidavits depositions or admissions
ACTION of the court ON THE MOTION for judgment for a summary judgment in his favor as to all or any
on the pleadings. part thereof.
The judgment of the pleading itself, it is subject to Rule 35, Section 3. Motion and proceedings thereon.
appeal. – The motion shall cite the supporting affidavits,
depositions or admissions, and the specific law relied
2. Summary judgments (Rule 35) upon. The adverse party may file a comment and serve
opposing affidavits, depositions, or admissions within
WHEN MAY A MOTION FOR SUMMARY a non-extendible period of five (5) calendar days from
JUDGMENT BE AVAILED OF receipt of the motion. Unless the court orders the
conduct of a hearing, judgment sought shall be
It may be availed of when a responsive pleading has rendered forthwith if the pleadings, supporting
been filed, however, the same did not establish a affidavits, depositions and admissions on file, show
genuine issue. What triggers a summary judgment is that, except as to the amount of damages, there is no
the absence of genuine issue of fact. genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
A "genuine issue" is an issue of fact which requires law.
the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the Any action of the court on a motion for summary
facts as pleaded appear uncontested or undisputed, judgment shall not be subject of an appeal or petition
then there is no real or genuine issue or question as to for certiorari, prohibition or mandamus.
the facts, and summary judgment is called for (Yap vs.
Siao) The new Rules specifies that the motion for summary
judgment must be accompanied by supporting
The party who moves for summary judgment has affidavits, depositions or admissions, and the specific
the burden of demonstrating clearly the absence of law relied upon.
any genuine issue of fact, or that the issue posed
in the complaint is patently unsubstantial so as not When you file a motion for summary judgment on
to constitute a genuine issue for trial. Trial courts the pleading, what is the period within which the
have limited authority to render summary judgments adverse party may file his comment or opposition?
and may do so only when there is clearly no genuine
issue as to any material fact. When the facts as When you file a motion for summary judgment on the
pleaded by the parties are disputed or contested, pleading, the adverse party may file a comment and
proceedings for summary judgment cannot take the serve opposing affidavits, depositions, or admissions
within a non-extendible period of 5 calendar days from

receipt of motion. occurrence which is the subject matter of the claim,

may render a separate judgment disposing of such
Hearing is optional to the court. claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action
NOTE: Any action of the court on a motion for shall proceed as to the remaining claims. In case a
summary judgment shall not be subject of appeal or separate judgment is rendered, the court by order may
petition for certiorari, prohibition or mandamus. stay its enforcement until the rendition of a
subsequent judgment or judgments and may
prescribe such conditions as may be necessary to
JUDGMENT ON THE SUMMARY
secure the benefit thereof to the party in whose favor
PLEADINGS JUDGMENT
the judgment is rendered. (Sec. 5, Rule 36)
There is absence of Answers tenders an
W. Motion for New Trial or Reconsideration
factual issue because issue, but the issue is
1. Rule 37
the answer tenders no not genuine.
issue.
GROUNDS OF FILING MOTION FOR NEW TRIAL
Only the claiming party The motion may be filed
can file the motion. by the claiming party or The aggrieved party may move the trial court to set
defending party. aside the judgment or final order and grant a new trial
for one or more of the following causes materially
It is based on pleadings It is based on pleadings, affecting the substantial rights of said party:
alone. affidavits, depositions
and admissions. (a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
Only three (3) day notice Five (5) day notice is not have guarded against and by reason of
is required. required. which such aggrieved party has probably
been impaired in his rights;
(b) Newly discovered evidence, which he could

3. Rendition and entry of judgments and final not, with reasonable diligence, have
orders (Rule 36) discovered, and produced at the trial, and
which if presented would probably alter the
A judgment or final order determining the merits of the result.
case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly Fraud
the facts and the law on which it is based, signed by
him, and filed with the clerk of the court. (Sec. 1, Rule The fraud referred to is extrinsic fraud, that is,
36) deception or trickery by which the aggrieved party
was prevented from having his day in court or
If no appeal or motion for new trial or reconsideration presenting his case before the court. It should be
is filed within the time provided in these Rules, the distinguished from intrinsic fraud which involves the
judgment or final order shall be entered by the clerk in presentation of false or perjured testimony but did not
the book of entries of judgments. The date of finality otherwise prevent the aggrieved party from presenting
of the judgment or final order shall be deemed to be his case.
the date of its entry. The record shall contain the
dispositive part of the judgment or final order and shall Accident
be signed by the clerk, with a certificate that such
judgment or final order has become final and Accident is similar to the concept of fortuitous event in
executory. (Sec. 2, Rule 36) civil law. It is something which ordinary prudence on
the part of party or counsel could not have guarded.
In an action against several defendants, the court
may, when a several judgment is proper, render Mistake
judgment against one or more of them, leaving the
action to proceed against the others. (Sec. 4, Rule 36) The "mistake" that is allowable in Rule 37 is one which
ordinary prudence could not have guarded against.
Separate judgments Thus, the general rule is that only mistakes of fact may
be a ground for new trial.
When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination If a party, because of a pending compromise
of the issues material to a particular claim and all agreement, believed in good faith that it was not
counterclaims arising out of the transaction or necessary for him to answer, appear at the trial and

put up a defense, there is a mistake which would time when it first came to the knowledge of the party
constitute a sufficient ground for new trial. (Salazar v. now submitting it; what is essential is that the offering
Salazar) party had exercised reasonable diligence in seeking to
locate such evidence before or during trial but had
Generally, an error or mistake committed by a counsel nonetheless failed to secure it.
in the course of judicial proceedings is not a ground
for new trial. An exception to this principle is one The Rules do not give an exact definition of due
wherein the negligence of the counsel is so gross that diligence, and whether the movant has exercised due
the client was deprived of his day in court, as a result diligence depends upon the particular circumstances
of which he is deprived of property without due of each case. Nonetheless, it has been observed that
process of law. the phrase is often equated with "reasonable
promptness to avoid prejudice to the defendant." In
Excusable Negligence other words, the concept of due diligence has both a
time component and a good faith component. The
Negligence to be "excusable" must be one which movant for a new trial must not only act in a timely
ordinary diligence and prudence could not have fashion in gathering evidence in support of the motion;
guarded against and by reason of which the rights of he must act reasonably and in good faith as well. Due
an aggrieved party have probably been impaired. The diligence contemplates that the defendant acts
test of excusable negligence is whether a party has reasonably and in good faith to obtain the evidence, in
acted with ordinary prudence while transacting light of the totality of the circumstances and the facts
important business. known to him.
Newly discovered evidence; Requisites Grounds of filing Motion for Reconsideration
The Supreme Court has repeatedly held that before a The aggrieved party may move for reconsideration
new trial may be granted on the ground of newly upon the following grounds:
discovered evidence, it must be shown that:
(a) the damages awarded are excessive;
(1) the evidence was discovered after trial;
(b) the evidence is insufficient to justify the
(2) such evidence could not have been decision or final order; or
discovered and produced at the trial even with
the exercise of reasonable diligence; (c) the decision or final order is contrary to law.
(3) it is material, not merely cumulative, When to File Motion for New Trial or
corroborative, or impeaching; and Reconsideration
(4) the evidence is of such weight that it would It is filed within the period for taking an appeal. The
probably change the judgment if admitted. If filing of the Motion for New Trial or Reconsideration
the alleged newly discovered evidence could interrupts the period to appeal. However, a pro forma
have been very well presented during the trial motion for new trial or reconsideration shall not toll the
with the exercise of reasonable diligence, the reglementary period of appeal.
same cannot be considered newly discovered.
A motion for reconsideration is deemed pro forma if
Custodio v. Sandiganbayan the same does not specify the findings or conclusions
in the judgment which are not supported by the
The threshold question in resolving a motion for new evidence or contrary to law, making express reference
trial based on newly discovered evidence is whether to the pertinent evidence or legal provisions. It is
the [proffered] evidence is in fact a "newly discovered settled that although a motion for reconsideration may
evidence which could not have been discovered by merely reiterate issues already passed upon by the
due diligence." The question of whether evidence is court, that by itself does not make it pro forma and is
newly discovered has two aspects: a temporal one, immaterial because what is essential is compliance
i.e., when was the evidence discovered, and a with the requisites of the Rules.
predictive one, i.e., when should or could it have been
discovered. It is to the latter that the requirement of No motion for extension of time to file a motion for
due diligence has relevance. We have held that in new trial or reconsideration shall be allowed.
order that a particular piece of evidence may be
properly regarded as newly discovered to justify new Second Motion for New Trial or Reconsideration
trial, what is essential is not so much the time when
the evidence offered first sprang into existence nor the A second motion for new trial, based on a ground not

existing nor available when the first motion was made, any final order or resolution.
may be filed within the time herein provided excluding
the time during which the first motion had been X. Execution, satisfaction, and effect of
pending. No party shall be allowed a second motion judgments (Rule 39)
for reconsideration of a judgment or final order.
Execution is a remedy afforded for the satisfaction of a
What the Rules seek to proscribe is a second motion judgment. Its object being to obtain satisfaction of the
for reconsideration, which essentially repeats or judgment on which the writ is issued (Cagayan de Oro
reiterates the same arguments already passed upon Coliseum vs. CA)
by the tribunal, when it resolved the first motion for
reconsideration filed by the same party. If the issues Which part of the decision is executed?
had already been passed upon and there is no
substantial argument raised, then the finality and The dispositive portion of the decision is that part of
immutability of a judgment should not be obviated. the decision which is executed.
(Carreon v. Aguillon)
The dispositive portion is that which vests rights upon
Grant of the motion for new trial; Effect the parties, sets conditions for the exercise of those
rights, and imposes the corresponding duties and
If a new trial is granted in accordance with the obligations. Hence if there is a conflict between the
provisions of this Rule, the original judgment or final dispositive portion of the decision and the body
order shall be vacated, and the action shall stand for thereof, the dispositive portion controls irrespective of
trial de novo, but the recorded evidence taken upon what appears in the body. (Globe Telecom, Inc., vs.
the former trial, in so far as the same is material and Florendo-Flores)
competent to establish the issues, shall be used at the
new trial without retaking the same. Writ of execution should conform to the dispositive
portion
2. Remedy against denial and fresh-period rule
The writ may not vary the terms of judgment to be
Remedy when motion is denied executed. Thus, if the judgment does not provide for
the payment of interest, the writ of execution cannot
An order denying a motion for new trial or modify the judgment by requiring the judgment obligor
reconsideration is not appealable, the remedy being to pay interest. That part of the writ imposing interest
an appeal from the judgment or final order. is void. An order of execution which does not conform
to the dispositive portion of the decision sought to be
“Fresh Period” or “Neypes Rule” enforced is null and void.
If the motion is denied, the movant has a “fresh WHEN IS EXECUTION A MATTER OF RIGHT
period” of fifteen (15) days from receipt of the notice
of the order denying or dismissing the motion for Rule 39, Section 1. Execution upon judgments or
reconsideration within which to file the notice of final orders. – Execution shall issue as a matter of
appeal. right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the
To standardize the appeal periods provided in the expiration of the period to appeal therefrom if no
Rules and to afford litigants fair opportunity to appeal appeal has been duly perfected. xxx
their cases, the Court deems it practical to allow a
fresh period of 15 days within which to file the notice
It is the ministerial duty of the court to issue writ of
of appeal in the Regional Trial Court, counted from
execution when the judgment is already final. Thus,
receipt of the order dismissing a motion for a new trial
the act may be compelled by mandamus. This is
or motion for reconsideration.
based on the principle of immutability of judgment
(Philippine Trust Co. vs. Roxas)
Henceforth, this 'fresh period rule shall also apply to
Rule 40 governing appeals from the Municipal Trial
When a judgment is appealed, and the judgment in
Courts to the Regional Trial Courts; Rule 42 on
the appellate court becomes final and executory, then
petitions for review from the Regional Trial Courts to
such judgment will be executed as a matter of right.
the Court of Appeals; Rule 43 on appeals from
quasi-judicial agencies to the Court of Appeals and
WHEN IS EXECUTION A MATTER OF DISCRETION
Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted from Rule 39, Section 2. Discretionary execution. –
receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or (a) Execution of a judgment or final order pending

appeal. – On motion of the prevailing party with because the authority to disapprove an appeal
notice to the adverse party filed in the trial court while pertains to the appellate court (International School,
it has jurisdiction over the case and is in possession of Inc., [Manila] vs. CA).
either the original record or the record on appeal, as
the case may be, at the time of the filing of such Mere allegation that the appeal is dilatory is not a
motion, said court may, in its discretion, order good reason to merit discretionary execution
execution of a judgment or final order even before the (Intramuros Tennis Club vs. CA)
expiration of the period to appeal.
Is posting of bond enough reason to grant
After the trial court has lost jurisdiction, the motion for execution pending appeal?
execution pending appeal may be filed in the appellate
court. No. The mere filing of a bond by the successful party
is not in itself a good reason for ordering execution
Discretionary execution may only issue upon good pending appeal, because it is the combination of
reasons to be stated in a special order after due circumstances which is the dominating reason that
hearing. would justify immediate execution, the bond only an
additional factor. Otherwise, what the prevailing party
Examples of “good reasons” — (1) the subject matter would do is just to post a bond, and execution
is perishable goods. (2) the party is of old age. (3) pending appeal will be issued as a matter of course.
defendant is in a state of determined insolvency.
Suppose the Court granted the motion for
Judge Gito: You are allowed to file motion for execution in cases where it is discretionary, how
execution despite the fact that the judgment is not yet can execution be stayed?
final and executory. In that sense it is a matter of
discretion. There is what we call filing a motion for It can be stayed by filing a sufficient supersedeas
execution pending appeal. You must be able to bond which will guaranty the performance of the
establish to the court good reasons for your motion. judgment or order allowed to be executed in case it
And when it is granted by the court, yung good shall be finally sustained in whole or in part (Section 3,
reasons na yun will be stated in the order. Rule 39)
What are the requisites for discretionary Is motion necessary for the issuance of writ of
execution? execution?
1) There must be motion filed by the prevailing Yes. Motion is necessary. It is extant from Section 1,
party with notice to the adverse party. That Rule 39. Motion is required even if the judgment is
kind of motion is a litigious motion. already final and executory (IMB vs. Nestle
Philippines).
2) There must be a hearing of the motion for
discretionary execution; The Judge, therefore, may not order the execution
motu prio (Lou vs. Siapno)
3) The motion must be filed in the trial court
while it has jurisdiction over the case and is in Is it required that the losing party be notified of the
possession of either the original record or motion for execution?
record on appeal;
We have repeatedly held that once a judgment
4) There must be good reason to justify the becomes final, the prevailing party is entitled as a
discretionary; matter of right to a writ of execution and its issuance
is the trial court's ministerial duty. When a prevailing
5) Good reasons must be stated in a special party files a motion for execution of a final and
order. executory judgment, it is not mandatory for such party
to serve a copy of the motion to the adverse party and
Is frivolous appeal a good reason to grant a to set it for hearing. The absence of such advance
discretionary execution of judgment? notice to the judgment debtor does not constitute an
infringement of due process (Mejia-Espinoza vs.
No. It is appellate court which will determine whether Carino)
appeal is frivolous or not.
WHERE SHOULD ONE FILE HIS MOTION FOR
Where the sole reason given by the trial court in EXECUTION?
allowing execution is that the appeal is frivolous and
dilatory, execution pending appeal cannot be justified Execution shall be applied for in the court of origin.

If the appeal has been duly perfected and finally It is not intended to re-open any issue affecting the
resolved, the execution may forthwith be applied for in merits of the case judgment debtor’s case nor the
the court of origin, on motion of the judgment obligee, propriety or correctness of the first judgment.
submitting therewith certified true copies of the
judgment or judgments or final order or orders sought It is a new and an independent action separate and
to be enforced and of the entry thereof, with notice to distinct from the previous action sought to be revived.
the adverse party (Section 1, Rule 39). The cause of action is the judgment itself.
NOTE: In an appealed decision, there is no need to What are the defenses that may be invoked in an
wait for the records of the case. action to revive?
Judge Gito: Halimbawa meron kayong judgment sa RTC. ● Jurisdictional defenses

Panalo kayo kaso yung defendant nag appeal sa CA. ● Prescription Payment
Tapos nanalo parin kayo sa CA. Nag appeal parin sa SC ● Other defenses arising after the finality of
under Rule 45. Panalo parin kayo. Yung SC decision judgment
naging final and executory so nag entry of judgment. Pag
magffile ba ng execution of judgment, kailangan ba yung NOTE: It may even be subject to counterclaims
record na nasa SC bumaba sa court a quo before you can arising out of the transactions not connected with the
file execution of judgment? Hindi na. Wag na hintayin ang former controversy (Basilonia vs. Villaruz)
records ng case bago magfile ng motion for writ of
execution. Ang kailangan lang is kumuha ng entry of Judge Gito: You cannot set up as a defense the
judgment sa appellate court tapos iattach yung defense that you interpose during the proceedings of
motion then file motion for execution. the revival of judgment. Ang revival of judgment, hindi
mo na pwede ilitigate yung nangyari before kasi ang
May one file the motion for execution with the cause of action mo lang is the judgment itself. So
appellate court? therefore, your previous defense in the original case
cannot be interposed in the action for revival of
The appellate court may, on motion in the same case, judgment.
when the interest of justice so requires, direct the
court of origin to issue the writ of execution (Sec. 1, N.B. The revived judgment may also be enforced by
Rule 39). motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the
What is the lifetime of the writ of execution? statute of limitations (Section 6, Rule 39; PNB vs.
Bondoc).
The writ shall continue in effect during the period
within which the judgment may be enforced. Hence The rule abandoned the previous ruling of the
the writ may be enforced within the five-year Supreme Court in PNB vs Deloso and Luzon Surety
period from entry of judgment because within that vs. IAC. Kasi sa PNB vs. Deloso, isang beses lang
period, the writ may be enforced by motion (Sec. 6, pwede irevive. Sa PNB vs. Bondoc, yung decision sa
Rule 39). revival of judgment, you have 5 years within which to
execute it. After 5 years mag file ka ulit ng revival of
HOW MAY FINAL AND EXECUTORY JUDGMENT judgment.
OR ORDER BE EXECUTED
Which court has jurisdiction over an action for
revival of judgment?
There are two ways (Section 6, Rule 39):
An action for revival of judgment may be filed either in
1) By motion (motion for execution) – within the same court where the judgment was rendered or
five (5) years from the date of its entry in the place where the plaintiff or defendant resides or
in any other place designated by the statutes. (Heirs of
2) By action (revival of judgment) – after the Miranda, Sr., vs. Miranda)
lapse of such time, and before it is barred by
the statute of limitations. The proper venue depends on the determination of
whether the present action for revival judgment is real
REVIVAL OF JUDGMENT or personal action. (Infante vs. Aran Builders) If the
action to be revived is a real action, then the venue for
It is an action intended to secure the execution of a real action. If it is a personal action, then the venue for
previous judgment which has become dormant after personal action will prevail.
the passage of five years without it being executed
upon motion of the prevailing party. TAKE NOTE: If the writ of execution was issued and
levy made within five years from entry of the

judgment, the auction sale may be made even after the enforcement of a lien thereon (Section
the five year period. The sale of the property and the 7[b], Rule 39).
proceeds are merely means to carry the writ of
execution and a levy already validly made. Accordingly ■ In case of the death of the judgment obligor,
and the application of the proceeds are merely, the after execution is actually levied upon any of
levy is the essential act by which the property is set his property, the same may be sold for the
apart for the satisfaction of judgment. (Government vs. satisfaction of the judgment obligation, and
Echaus) the officer making the sale shall account to
the corresponding executor or administrator
The judgment may be executed within 5 years from for any surplus in his hands (Section 7[c], Rule
entry of judgment tapos pag after 5 years, revival of 39).
judgment na. Papaano kapag within 5 years, nagfile
ng motion for execution tapos nagkaroon ng levy on How to execute a money judgment?
the property but the auction sale of the levied property
occurred after 5 years. Pwede ba yon? In Government 1) Sheriff will demand for payment.
vs Echaus, pwede. Basta ang motion for execution ay
na-file within 5 years, pwede, kahit ang auction sale 2) If judgment obligor cannot pay in cash, he
after 5 years, pwede. shall choose property to be levied and sold to
public auction and to be applied in
May the running of the five-year period be debtedness.
interrupted?
3) If judgment obligor does not choose, sheriff
The general rule is no. shall levy personal property first, then real
property.
But in the cases of Camacho vs. CA and Republic vs
■ If the sheriff chose the real property
CA, the Court in certain instances, allowed execution
even if there was a personal property
of the judgment by mere motion despite the lapse of
available, you may file a motion to
the five-year time. In many instances, the delays in the
discharge attachment because the
execution of judgment were through causes clearly
manner of executing money judgment
attributable to the judgment debtor as when he
is unprocedural.
employs legal maneuvers to block the enforcement of
the judgment. Delays attributable to the defendant 4) The sheriff may also garnish credit and debts.
have the effect of suspending the running of the
The deposit of judgment obligor in the bank
prescriptive period for the enforcement of the
may be garnished by the sheriff.
judgment. This is only an exception to the general rule.
NOTE: It is not proper for the sheriff to immediately
What are the judgments that are not stayed by
levy the property of the judgment debtor. He must first
appeal?
make a demand to pay. Only when the judgment
debtor does not pay, after demand that the sheriff is
1. Injunction
authorized to levy the properties of the judgment
2. Receivership
debtor (Leachon vs. Pascua)
3. Accounting
4. Support How is specific act executed?
They are immediately executory despite appeal. If a judgment directs a party to execute a conveyance
of land or personal property, or to deliver deeds or
HOW IS EXECUTION MADE other documents, or to perform any other specific act
in connection therewith, and the party fails to comply
How is execution effected if the obligee or within the time specified, the court may direct the act
judgment obligor dies? to be done at the cost of the disobedient party by
some other person appointed by the court and the act
■ In case of the death of the judgment obligee, when so done shall have like effects as if done by the
upon the application of his executor or party. If real or personal property is situated within the
administrator, or successor in interest (Section Philippines, the court in lieu of directing a conveyance
7[a], Rule 39). thereof may by an order divesting the title of any party
and vest it in others, which shall have the force and
■ In case of the death of the judgment obligor, effect of a conveyance executed in due form of law
against his executor or administrator or (Section 10 [a], Rule 39)
successor in interest, if the judgment be for
the recovery of real or personal property, or Example: An action for specific performance to

compel the defendant to demolish the property that Simeon)

he erected on your property at the expense of the
defendant. Panalo ang plaintiff. The judgment became Judge Gito: Mag file ka ng issuance for writ of
final and executory. How are you going to execute it? possession so that the plaintiff would be allowed to
The first thing that the court should do is to compel possess the subject matter of litigation. Kelan may
the defendant because he is the one required to contempt? Yung plaintiff nandun na pero yung
demolish the building. If he failed to do so, then it can defendant gumawa ng action na kukunin ulit ang
be demolished by another person but at the expense possession na na-turn over na sa plaintiff.
of the defendant as if he actually performed the
demolition. PROPERTIES THAT ARE NOT SUBJECT TO
EXECUTION
How is sale of personal or real property executed?
a) The judgment obligor's family home as
If the judgment be for the sale of real or personal provided by law, or the homestead in which
property, to sell such property, describing it, and he resides, and land necessarily used in
apply the proceeds in conformity with the judgment. connection therewith;
(Section 10 [b], Rule 39)
b) Ordinary tools and implements personally
How is delivery of delivery or restitution of real used by him in his trade, employment, or
property executed? livelihood;
The officer shall demand of the person against whom c) Three horses, or three cows, or three
the judgment for the delivery or restitution of real carabaos, or other beasts of burden, such as
property is rendered and all persons claiming rights the judgment obligor may select necessarily
under him to peaceably vacate the property within used by him in his ordinary occupation;
three (3) working days, and restore possession thereof
d) His necessary clothing and articles for
to the judgment obligee; otherwise, the officer shall
ordinary personal use, excluding jewelry;
oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and e) Household furniture and utensils necessary for
employing such means as may be reasonably housekeeping, and used for that purpose by
necessary to retake possession, and place the the judgment obligor and his family, such as
judgment obligee in possession of such property. the judgment obligor may select, of a value
(Section 10 [c], Rule 39). not exceeding one hundred thousand pesos;
How is removal of improvements on property f) Provisions for individual or family use

subject of execution enforced? sufficient for four months;
The officer shall not destroy, demolish or remove said g) The professional libraries and equipment of
improvements except upon special order of the court, judges, lawyers, physicians, pharmacists,
issued upon motion of the judgment obligee after due dentists, engineers, surveyors, clergymen,
hearing and after the former has failed to remove the teachers, and other professionals, not
same within a reasonable time fixed by the court exceeding three thousand pesos in value;
(Section 10 [d], Rule 39)
h) One fishing boat and accessories not
How is delivery of personal property executed? exceeding the total value of one hundred
thousand pesos owned by a fisherman and by
In judgments for the delivery of personal property, the the lawful use of which he earns his livelihood;
officer shall take possession of the same and forthwith
deliver it to the party entitled thereto and satisfy any i) So much of the salaries, wages, or earnings of
judgment for money as therein provided (Section 10 the judgment obligor for his personal services
[e], Rule 39). within the four months preceding the levy as
are necessary for the support of his family;
Is contempt a proper remedy in case the judgment
obligor refuses to vacate the property? j) Lettered gravestones;
No. What the sheriff should do is to dispossess him of k) Monies, benefits, privileges, or annuities
the property and if after dispossession, the judgment accruing or in any manner growing out of any
debtor should execute acts of ownership or life insurance;
possession or in any manner disturb the possession of
the judgment creditor, then and only then may he be l) The right to receive legal support, or money or
punished for contempt (Pascua vs. Heirs of Segundo property obtained as such support, or any

pension or gratuity from the Government; unless such judgment obligee, on demand of the
officer, files a bond approved by the court to
m) Properties specially exempted by law. indemnify the third-party claimant in a sum not less
than the value of the property levied on. The officer
LEVY OF PROPERTY OWNED BY THIRD PERSON shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if
such bond is filed. (Section 16, Rule 39).
What is the effect of levy on execution to third
person? If you want the sheriff to keep the property, the
judgment oblige may post a bond equivalent of the
The levy on execution shall create a lien in favor of the property to be levied to be executed in favor of
judgment obligee over the right, title and interest of supposed third party claimant. That bond will answer
the judgment obligor in such property at the time of for damages.
the levy, subject to liens and encumbrances then
existing. Suppose damage was incurred by the third party
on account of the officer's taking and keeping of
What is the procedure if the property of third party his property, when should the action against the
is levied? bond be filed?
Judge Gito: When we speak of levy, inaattach mo The action should be filed within one hundred twenty
yung property. Magiging custody siya ng court. Bakit (120) days from the date of the filing of the bond.
mo ipagle-levy? Kasi ibebenta mo siya sa public Under Section 16 of Rule 39, it is provided that No
auction. At yung proceeds iaapply sa judgment of the claim for damages for the taking or keeping of the
case. property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120)
Basic principle: the execution may issue only upon a days from the date of the filing of the bond.
person who is a party to the action or proceeding, and
not against one who did not have his day in court. What are the remedies of a third party in case his
Thus, the property not owned by the judgment debtor property is levied?
or by one not a party to the case should not be levied.
1) The third party can ask the court to quash
Under the Rules, a person not a party to the action, writ of execution.
claiming a property levied upon may execute an
affidavit of his title or right of possession over the 2) The third party can avail the remedy of
property. The affidavit shall be served upon the officer terceria.
making a levy and a copy thereof must also be served
upon the judgment oblige (Section 16, Rule 39). This 3) The third party can file separate action to
remedy of the claiming party is called TERCERIA. nullify the levy.
Example: Assuming that the judgment is already What is the remedy of the judgment obligee in
final and executory. The judgment is 1M. It will case the claim of the third party is frivolous?
be executed by the court. Si sheriff pumunta na
sa bahay ni defendant. Yung defendant nasa The judgment obligee may claim damages in the same
garahe ng bahay. May nakita si sheriff BMW. or a separate action against a third-party claimant who
Kinuha niya yung BMW kasi inassume niya na filed a frivolous or plainly spurious claim (Section 16,
since nasa garahe ng defendant, siya may ari Rule 39).
nun. May lumapit sa sheriff na sabi sa kanya raw
yung sasakyan. Pero kinuha parin ng sheriff. EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT UNSATISFIED
Ikaw tinawagan ka ngayon nung may-ari ng
BMW. Ano gagawin mo bilang counsel nung Example: Nagkaroon na ng execution for money
third party? Execute an affidavit of third party judgment pero walang masingil from the defendant. Ang
claim tapos ibibigay mo sa judgment creditor plaintiff magfifile ng motion for examination of the
and sa sheriff. In which case the sheriff is not judgment obligor. You would require the judgment
bound by the property, so the sheriff would not obligor to appear in court and examine him. Baka kasi sa
get the property. pagtatanong mo, may makuha kang information
regarding the property of the judgment obligor. Baka
After receipt of the affidavit of claim, what should may tinatagong property.
the sheriff do?
When the return of a writ of execution issued against
The officer shall not be bound to keep the property, property of a judgment obligor, or any one of several

obligors in the same judgment, shows that the

judgment remains unsatisfied, in whole or in part,
the judgment obligee, at any time after such return is
made, shall be entitled to an order from the court
which rendered the said judgment, requiring such
judgment obligor to appear and be examined
concerning his property and income before such
court or before a commissioner appointed by it, at a
specified time and place; and proceedings may
thereupon be had for the application of the property
and income of the judgment obligor towards the
satisfaction of the judgment (Sec. 36, Rule 39).
Judge Gito: If the judgment obligor failed to appear,

there is a danger that he may be arrested for
contempt. Kung wala parin after examination, wala na
yun. Pero every now and then, kapag may lumabas na
property ng defendant, report mo agad sa court.
When the return of a writ of execution against the

property of a judgment obligor shows that the
judgment remains unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which
issued the writ, that a person, corporation, or other
juridical entity has property of such judgment obligor
or is indebted to him, the court may, by an order,
require such person, corporation, or other juridical
entity, or any officer or member thereof, to appear
before the court or a commissioner appointed by it, at
a time and place within the province or city where
such debtor resides or is found, and be examined
concerning the same. (Sec. 37, Rule 39).

JURISDICTION OVER PROVISIONAL REMEDIES

III. PROVISIONAL REMEDIES
The court which grants or issues a provisional remedy
A. Nature, purpose, and jurisdiction over is the court which has jurisdiction over the main
provisional remedies action.
NATURE AND PURPOSE Superior courts do not have exclusive competence to

grant provisional remedies. In an action pending with it
Provisional remedies are writs and processes available and within its authority, inferior courts may likewise
during the pendency of the action which may be provide all appropriate provisional remedies.
resorted to by a litigant to preserve and protect certain
rights and interests therein pending rendition, and for B. Preliminary attachment (Rule 57)
purposes of the ultimate effects, of a final judgment in
the case. They are provisional because they constitute A writ of preliminary attachment is defined as a
temporary measures availed of during the pendency of provisional remedy issued upon order of the court
the action, and they are ancillary because they are where an action is pending to be levied upon the
mere incidents in and are dependent upon the result property or properties of the defendant therein, the
of the main action. same to be held thereafter by the sheriff as security for
the satisfaction of whatever judgment that might be
Provisional remedies may be availed of by a party secured in the said action by the attaching creditor
to: against the defendant.
a) preserve or protect litigants’ rights or interests Preliminary attachment is designed to seize the
during the pendency of the principal action; property of the debtor before final judgment and
put the same in custodia legis even while the action
b) secure the judgment; is pending for the satisfaction of a later judgment and
to acquire jurisdiction over the property in those
c) preserve the status quo of the things subject instances where personal or substituted services of
to the action or the relation between the summons on the defendant cannot be effected.
parties; and
d) preserve the subject matter of the action. Judge Gito: The purpose of the attachment is that if you
win the case and the defendant could not pay you, the
The provisional remedies denominated attachment, property attached will be sold to public auction and the
preliminary injunction, receivership, and delivery of proceeds thereof will be applied to the indebtedness of
personal property, provided in Rules 59, 60, 61, and the plaintiff. That’s why we said the purpose of
62 of the Rules of Court, respectively, are remedies to preliminary attachment is actually to secure judgment.
which parties litigant may resort for the preservation or Because what benefit could we get if we win the case but
protection of their rights or interest, and for no other we cannot implement the decision? That is just a victory
purpose, during the pendency of the principal action. in paper. We will not be able to taste the fruit of our
If an action, by its nature, does not require such labor.
protection or preservation, said remedies cannot be
applied for and granted. It should be resorted to only when necessary and
as a last remedy because it exposes the debtor to
What is the effect on provisional remedy if the humiliation and annoyance. It must be granted only on
main action is dismissed? concrete and specific grounds and not merely on
general averments quoting the words of the rules.
The provisional remedy cannot be availed of. The Since attachment is harsh, extraordinary, and
dismissal of the main action carries with it the summary in nature, the rules on the application of a
dismissal of the provisional remedy. writ of attachment must be strictly construed in
favor of the defendant.
The dismissal of the principal action x x x carries with
it the denial, disallowance or revocation of all reliefs Attachment is in the nature of a proceeding quasi in
ancillary to the main remedy sought in that action.” rem, although sometimes it is referred to as action in
One of the inevitable consequences of the dismissal rem. This classification becomes relevant only when
of the main action is the dissolution of the ancillary the defendant does not appear in the action as when
relief granted therein. Thus, the dismissal of UniAlloy's the defendant is a non-resident who, at the same
main action carries with it the dissolution of any time, is outside of the Philippines.
ancillary relief previously granted therein. (United Alloy
v. UCPB) The attachment of the property of the defendant
converts an ordinary action in personam into an action

quasi in rem. In such case, jurisdiction over the person applied initially from the filing of the complaint.
of the defendant is not required as long as the court
acquires jurisdiction over the res.
GROUNDS UPON WHICH ATTACHMENT MAY
ISSUE (SEC. 1, RULE 57)
NOTE: Attachment does not affect the decision of
the case on the merits. As a rule, the judgment in the
main action neither changes the nature nor determines 1) Recovery of a specified amount of money or
the validity of the attachment. damages
Will the writ of preliminary attachment be ■ The mere fact that it is an action for
dissolved if the parties had already entered into damages or money would not entitle
compromise agreement? one to apply for the issuance of writ of
attachment. There must be a showing
No. The parties to the compromise agreement should that the defendant is about to depart
not be deprived of the protection provided by an from the Philippines and that his
attachment lien. If the rule was otherwise, it is easier departure is for the purpose of
for the debtor whose property was attached to have defrauding his creditors.
the lien released by entering into a compromise
agreement without the intention of actually honoring it. Example: Nagfile ka ng kaso for sum of
money, in the amount of 5M. Defendant
WHO MAY APPLY FOR PRELIMINARY is about to depart from the country and
ATTACHMENT you received an Information as to that
effect. Then you can file for the issuance
A plaintiff or any proper party may have the property of writ of preliminary attachment.
of the adverse party attached.
2) Action for money or property embezzled.
Thus, a defendant may apply for preliminary
3) Action for recovery of property unjustly or
attachment with respect to his counterclaim. Likewise,
fraudulently taken.
a co-party may apply with respect to his cross-claim.
Also, a preliminary attachment may be issued in favor 4) Fraud in contracting or performing an
of a third party with respect to his third-party obligation.
complaint.
5) Removal or disposal of property with intent to
WHEN PRELIMINARY ATTACHMENT MAY BE defraud.
AVAILED OF
6) Action against non-residents or on whose
An application for the issuance of a writ of attachment summons may be served by publication.
may be filed:
The enumeration under Section 1 of Rule 57 is
a) At the commencement of the action; or exclusive.
■ date of the filing of the complaint; the REQUISITES FOR ISSUANCE OF ORDER OF
reference plainly is to a time before PRELIMINARY ATTACHMENT
summons is served on the defendant,
or even before summons issues. 1) Affidavit of merit
b) At any time before entry of judgment. a) Sufficient cause of action exists;
Usually the process is like this: You file a complaint b) The case is one of those mentioned in
with prayer for the issuance of a preliminary attachment. Section 1 hereof;
The Court will hear you without notifying the other
party. The court will not yet issue summons. The court c) There is no other sufficient security for
will hear you on whether you are entitled to the issuance the claim sought to be enforced by
of the writ of preliminary attachment. Now, you have to the action; and
present evidence to prove your application and if you
convince the court that there is a necessity for the court d) The amount due to the applicant, or
to issue writ of attachment, then it will issue writ of the value of the property the
attachment. So insofar as writ of attachment is possession of which he is entitled to
concerned, no need to notify the other party if it is recover, is as much as the sum for
which the order is granted above all

legal counterclaims. Ex parte grant of the writ is permitted because it is

possible that during the course of the hearing, the
2) Applicant’s Bond must be filed party against whom the writ is sought may dispose of
his property or abscond before the writ is issued.
Stages in the grant of preliminary attachment
Notice and hearing are not indispensable and
1) The Court issues the order granting the mandatory requisites for the issuance of a writ of
application attachment. (Davao Light & Power Co., Inc. v. CA)
2) The writ of attachment is issued pursuant to

Mindanao Savings & Loan Association, Inc. v. CA
the order granting the writ
No notice to the adverse party or hearing of the
3) The writ is implemented.
application is required. As a matter of fact a hearing
would defeat the purpose of this provisional remedy.
For the initial two stages, it is not necessary that
The time which such a hearing would take, could be
jurisdiction over the person of the defendant should
enough to enable the defendant to abscond or
first be obtained. However, once the implementation
dispose of his property before a writ of attachment
commences, it is required that the court must have
issues. Nevertheless, while no hearing is required by
acquired jurisdiction over the defendant for without
the Rules of Court for the issuance of an attachment ,
such jurisdiction, the court has no power and authority
a motion to quash the writ may not be granted without
to act in any manner against the defendant. Any order
"reasonable notice to the applicant" and only "after
issuing from the Court will not bind the defendant.
hearing".
Judge Gito: Ganito yung order → Pag nag file na ng

complaint, may prayer ka for the issuance of writ of RULE ON PRIOR OR CONTEMPORANEOUS
preliminary attachment, as I have said, magkakaroon ng SERVICE OF SUMMONS
hearing. After hearing, halimbawa nagrant ng court. Ang
disposition ng court “Let a writ of preliminary Is it necessary for the court to have acquired
attachment be against the defendant.” Si judge ang jurisdiction over the person of the defendant when
nago-order na mag issue ng writ. Ang sheriff ang mag the writ is implemented?
i-implement ng writ na inissue ng court. So pag sinasabi
nating implementation, tapos na ang issuance. Iba ang Yes. Section 5 of Rule 57 provides that, “No levy on
sinasabing implementation, ibang usapan ang issuance. attachment pursuant to the writ issued under Section
2 hereof shall be enforced unless it is preceded, or
Sa issuance, hindi required na ang korte ay may contemporaneously accompanied, by service of
jurisdiction over the person of the defendant. It can summons, together with a copy of the complaint, the
be issued ex parte. But with respect to the application for attachment, the applicant's affidavit
implementation of the writ of attachment, it is and bond, and the order and writ of attachment, on
required that the court must have jurisdiction the defendant within the Philippines.”
already over the person of the defendant.
Thus, there must be prior or contemporaneous service
That’s why under the rules, prior or contemporaneous of summons.
service of summons. Kapag ang korte nag issue ng
attachment, ano mangyayari? Si sheriff pupunta kay Are there exceptions to prior or contemporaneous
defendant. Ang dala ni sheriff yung complaint, summons, service of summons?
bond, everything that is used in the application for the
issuance of the writ of attachment, and the writ of Yes. Section 5 of Rule 57 enumerated the exceptions
attachment itself. Hindi pwede mauna ang writ of to the rule on prior or contemporaneous service of
attachment. Kailangan at least prior or contemporaneous summons, to wit:
ang service ng summons.
1) where the summons could not be served
How may preliminary writ of attachment be issued personally or by substituted service despite
diligent efforts, or
It may be issued:
2) the defendant is a resident of the Philippines
1. ex parte temporarily absent therefrom, or
2. upon motion with notice and hearing
3) the defendant is a non-resident of the
3. On appeal before the Court of Appeals or the
Philippines, or
Supreme Court.

4) the action is one in rem or quasi in rem. to be attached in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or
quasi-judicial agency, and notice of the attachment
MANNER OF ATTACHING PROPERTY
served upon the custodian of such property.
Real property By filing with the RD a copy Supposing sheriff attached the property of the
of the order together with a third party, what are the remedies of the latter if
description of the property any?
attached, and a notice that it
is attached leaving a copy of 1) He may avail the remedy of terceria.
such order, description, and
2) The third party-claimant may also invoke the
notice with the occupant of
court’s authority in the same case and move
the property, if any.
for a summary hearing on his claim. If his
Where the property is claim is meritorious, the court shall lift the
registered under the LRA, attachment.
the notice shall contain a
reference to the number of 3) The third party may file a separate civil
the certificate of title, the action to nullify the levy.
volume and page in the
registration book where the HOW MAY A WRIT OF ATTACHMENT BE
certificate is registered, and DISCHARGED
the registered owner or
owners thereof. 1) By filing a motion to discharge the attachment
and making a deposit or counter-bond in an
Personal property By taking and safely amount equal to that fixed by the court or
keeping it in his custody, value of the property attached (Sec. 12, Rule
after issuing the 57)
corresponding receipt
therefor. 2) By filing a motion to set aside or discharge the
attachment on other grounds without need of
Bank deposits and By leaving with the person filing a counterbond.
other credits owing such debts a copy of
the writ, and notice that the What are grounds which may be invoked in the
debts owing by him to the motion to discharge attachment?
party against whom
attachment is issued, and 1) The debtor has posted a counterbond or has
the credits and other made the requisite cash deposit
personal property in his
possession, or under his 2) The attachment was improperly or irregularly
control, belonging to said issued as where there is no ground for
party, are attached. attachment
Interest belonging By serving the executor or 3) The bond filed is defective or insufficient
to the estate administrator or other
personal representative of 4) The attachment is excessive, but the
the decedent with a copy of discharge shall be limited to the excess
the writ and notice that said
interest is attached. Copy of 5) The property attached is exempt from
said writ and notice shall execution
also be filed in the office of
the clerk of the court where 6) The judgment is rendered against the
the estate is being settled attaching creditor.
and served upon the heir,
legatee or devisee Discharge of the writ of attachment must be made
concerned. after hearing
When the attachment is challenged for having been

May a property under custodia legis be attached? illegally or improperly issued, there must be a hearing
with the burden of proof to sustain the writ being on
Yes. Under Section 7 of Rule 57, if the property sought

the attaching creditor.

performed, the purpose to prevent a future or
of the injunction is to threatened injury
The mere posting of a counter-bond does not
restore the status quo
automatically discharge the writ of attachment. It is
only after due notice and hearing and after the judge GROUNDS FOR THE ISSUANCE OF A
orders the discharge of the attachment that the same PRELIMINARY INJUNCTION
is properly discharged.
Section 3, Rule 58 can be capsulized as follows:
May a party whose property was attached recover
damages from the attaching party though the 1) there exists a clear and unmistakable right
former lost the case? to be protected;
Yes. This is implied from Section 20, Rule 57 which ■ Court cannot enjoin the termination of
provides that: “An application for damages on account an employee whose contract of
of improper, irregular or excessive attachment must be employment has already expired.
filed before the trial or before appeal is perfected or (Thunder Security and Investigation
before the judgment becomes executory, with due Agency vs. NFA)
notice to the attaching party and his surety or
sureties.” ■ Court cannot enjoin the bank from
possessing foreclosed property even
C. Preliminary injunction (Rule 58) during the period for redemption. (Sps.
Duluan vs. MBTC)
Rule 58, Section 1. Preliminary injunction defined;
2) this right is directly threatened by an act
classes. – A preliminary injunction is an order granted
sought to be enjoined;
at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, 3) the invasion of the right is material and
agency or a person to refrain from a particular act or substantial; and
acts. It may also require the performance of a
particular act or acts, in which case it shall be known 4) there is an urgent and paramount necessity
as a preliminary mandatory injunction. for the writ to prevent serious and irreparable
damage (Sps. Dulnuan vs. MBTC)
A writ of injunction is issued by the court to prevent
threatened or continuous irreparable injury to parties FORMAL REQUISITES OF THE ISSUANCE OF
before their claims can be thoroughly studied and PRELIMINARY INJUNCTION
adjudicated and during the pendency of the action.
Hence, in order to protect the rights of the parties a) There must be a verified application (Sec. 4(a),
before the main action is resolved, there is need to Rule 58).
preserve the status quo.
b) The applicant must post a bond (Sec.4 (b),
What is the status quo? Rule 58).
It is defined as the last actual, peaceful, and c) There must be notice and hearing (Sec. 5,
uncontested status that precedes the actual Rule 58)
controversy, that which is existing at the time of the
filing of the case (Spouses Dulnuan vs. MBTC) Can preliminary injunction be issued without
notice and hearing?
Two kinds of preliminary injunction
NO. Section 5, Rule 58 provides that no preliminary
injunction shall be granted without hearing and prior
Preliminary mandatory Preliminary prohibitory
notice to the party or person sought to be enjoined.
injunction injunction
Is the rule on contemporaneous service of
When on is required to When one is required to
summons applicable to application for preliminary
perform an act refrain from doing an act
injunction?
The act has already The act has not yet
Generally, YES. When an application for a writ of
been performed and this been performed
preliminary injunction or a temporary restraining order
act violated the rights of because it is restrained
is included in a complaint or any initiatory pleading,
another. Since the act or prevented by
the case, if filed in a multiple-sala court, shall be
has already been injunction. Its purpose is
raffled only after notice to and in the presence of the

adverse party or the person to be enjoined. In any of the temporary restraining order exceed 20 days,
event, such notice shall be preceded, or including the original 72 hours provided herein (Sec. 5,
contemporaneously accompanied, by service of Rule 57).
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and Remember: The maximum period of effectivity of a
bond, upon the adverse party in the Philippines (Sec. TRO is 20 days. So if the EJ issued a TRO and the
4 (c), Rule 58). judge where the case is raffled extended it, then the
total must only be 20 days meaning that 3 days is
Exceptions: However, where the summons could not included dun sa 20 days. Hindi sya 23 days. 20 days
be served personally or by substituted service despite lang in total kasama na yung 3 days. So technically,
diligent efforts, or the adverse party is a resident of ang extension period lang na pwede ibigay ni judge is
the Philippines temporarily absent therefrom or is a 17 days. Nonetheless, if the EJ did not issue a TRO
nonresident thereof, the requirement of prior or then yung judge where the case is raffled can issue
contemporaneous service of summons shall not apply. TRO for a period of 20 days.
TEMPORARY RESTRAINING ORDER Can the judge extend the TRO ex parte or without
hearing?
It is an order issued to preserve the status quo until NO. The judge must conduct a sumamry hearing to
the hearing of the application for a writ of preliminary determine whether the TRO should be extended.
injunction because preliminary injunction cannot be
issued ex-parte (Bacolod Water District vs. Labayen). Assuming a TRO was issued for a period of 20
days in total, what should be done during this 20
By its nature, it could be considered as a provisional days?
remedy within a provisional remedy because it is
issued to preserved the status quo for a limited period During this 20 days, there will be a hearing on the
until the court decides to issue a writ of preliminary application for the issuance for a preliminary
injunction. injunction. The judge will determine whether to issue a
preliminary injunction.
May TRO be issued ex-parte?
MAY CRIMINAL PROSECUTION BE RESTRAINED?
YES. If it shall appear from facts shown by affidavits
or by the verified application that great or irreparable General Rule: NO.
injury would result to the applicant before
preliminary injunction can be heard, the court to Exceptions:
which the application for preliminary injunction was
made, may issue ex parte a temporary restraining 1. To afford adequate protection to the
order to be effective only for a period of 20 days from constitutional rights of the accused
service on the party or person sought to be enjoined x
x x. (Section 5, Rule 58) 2. When double jeopardy is apparent
NOTE: a TRO can be issued ex parte but preliminary 3. When necessary for the orderly administration
injunction cannot be issued ex parte. There must be of justice or to avoid oppression
notice and hearing.
4. Where the charges are manifestly false and
motivated by lust for vengeance
May TRO be issued by the Executive Judge?
5. When there is strictly no prima facie case
If the matter is of extreme urgency and the applicant against the accused and the motion to quash
will suffer grave injustice and irreparable injury, the on that ground has been denied
executive judge of a multiple-sala court or the
presiding judge of a single-sala court may issue D. Receivership (Rule 59)
ex-parte a temporary restraining order effective for
only 72 hours from issuance but he shall immediately Receivership presupposes that there is a principal
comply with the provisions of the next preceding action or proceeding and that the property or fund
section as to service of summons and the documents subject of such action or proceeding requires
to be served therewith (Sec. 5, Rule 58). preservation.
Can the judge where the case is raffled extend the Example of cases that justify the appointment of a
TRO? receiver
YES. But in no case shall the total period of effectivity

1) There is an action or proceeding and the A receiver is a person appointed by the court in behalf
subject of the action or proceeding, and that of all the parties to the action for the purpose of
such property or fund is in danger of being preserving and conserving the property in litigation
lost, removed, or materially injured unless a and prevent its possible destruction or dissipation, if it
receiver be appointed to administer and were left in the possession of any of the parties.
preserve it; (Sec. 1(a), Rule 59)
The appointment of a receiver is not a matter of
■ The guiding principle is the prevention absolute right. It depends upon the sound discretion
of imminent danger to the property. If of the court and is based on facts and circumstances
an action by its nature, does not of each particular case.
require such protection or reservation,
said remedy cannot be applied for Neither party to a litigation should be appointed as
and granted. receiver without the consent of the other because a
receiver should be a person indifferent to the parties
2) There is an action foreclosure of a mortgage and should be impartial and disinterested. The
that the property is in danger of being wasted receiver is not the representative of any of the parties
or dissipated or materially injured, and that its but of all of them to the end that their interests may be
value is probably insufficient to discharge the equally protected with the least possible
mortgage debt, or that the parties have so inconvenience and expense.
stipulated in the contract of mortgage; (Sec.
1(b), Rule 59) A receiver of real or personal property, which is the
subject of the action, may be appointed by the court
3) There is already judgment and receivership is when it appears from the pleadings or such other
applied for to aid execution because: (a) proof as the judge may require, that the party applying
execution has been returned unsatisfied, (b) for such appointment has (1) an actual interest in it;
the judgment obligor refuses to apply his and (2) that (a) such property is in danger of being lost,
property in satisfaction of the judgment, or removed or materially injured; or (b) whenever it
otherwise to carry the judgment into effect. appears to be the most convenient and feasible
(Sec. 1(c), Rule 59) means of preserving or administering the property in
litigation.
4) There is a pending appeal but a receiver is
necessary to preserve teh property during its Requisites for the appointment of a receiver
pendency. (Sec. 1(c), Rule 59)
1) A verified application
5) In other cases it appears that the appointment
of a receiver is the most convenient and 2) The applicant must have an interest in the
feasible means of preserving, administering, property funds subject of the action; he must
or disposing of the property in litigation. (Sec. show that the property or fund is in danger of
1(d), Rule 59) ing lost, removed, materially altered, wasted
or dissipated or there is a need to eserve or
■ There must be a clear showing of administer the property, or that all the grounds
necessity for the appointment of a justifying the appointment of a receiver exist;
receiver in order to save the plaintiff
from grave and irremediable loss or 3) Application must be with notice and set for
damage. It is only when the hearing. A hearing is necessary because the
circumstances so demand, either grounds for receivership requires the
because there is imminent danger that resolution of factual issues
the property sought to be placed in
the hands of a receiver be lost or 4) Applicant must post a bond
because they run the risk of being
impaired, endeavoring to avoid that 5) Before entering upon his duties, the receiver
the injury thereby caused be greater shall be sworn to perform them faithfully, and
than the one sought to be avoided. shall file a bond, executed to such person and
in such sum as the court may direct, to the
■ Hence, receivership is not available in effect that he will faithfully discharge his
a mere suit for collection of money for duties in the action or proceeding and obey
the purpose of assuring the collection the orders of the court.
of debt.
General powers of a receiver
Who is a receiver

Rule 59, Sec. 6. General powers of receiver. – Subject sugar to B, A brought an action for the rescission of the
to the control of the court in which the action or contract of sale and, as incident of this action, asked for
proceeding is pending, a receiver shall have the power the manual delivery (replevin) of the sugar to him.” (Bar
to bring and defend, in such capacity, actions in his 1990)
own name; to take and keep possession of the property
in controversy; to receive rents; to collect debts due to PROCEDURE FOR THE APPLICATION OF
himself as receiver or to the fund, property, estate, REPLEVIN
person, or corporation of which he is the receiver; to
compound for and compromise the same; to make Rule 60, Section 1. Application. – A party praying for
transfers; to pay outstanding debts; to divide the the recovery of possession of personal property may, at
money and other property that shall remain among the the commencement of the action or at any time before
persons legally entitled to receive the same; and answer, apply for an order for the delivery of such
generally to do such acts respecting the property as the property to him, in the manner hereinafter provided.
court may authorize. However, funds in the hands of (1a)
a receiver may be invested only by order of the court
upon the written consent of all the parties to the Rule 60, Section 2. Affidavit and bond. – The
action. applicant must show by his own affidavit or that of
some other person who personally knows the facts:
No action may be filed by or against a receiver without
leave of the court which appointed him. (a) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to the
E. Replevin (Rule 60) possession thereof;
Replevin may be a main action or a provisional (b) That the property is wrongfully detained by the
remedy. As a principal action, its ultimate goal is to adverse party, alleging the cause of detention thereof
recover personal proeprty capable of manual delivery according to the best of his knowledge, information,
wrongfully detained by a person. and belief;
The application of Rule 60 presupposes the existence (c) That the property has not been distrained or taken
of a principal action which prays for the recovery of for a tax assessment or a fine pursuant to law, or seized
possession of personal property. A party seeking to under a writ of execution or preliminary attachment,
recover such possession may apply for the delivery of or otherwise placed under custodia legis, or if so
such property to him even before the judgment is seized, that it is exempt from such seizure or custody;
rendered in the principal action. When the party and
applies for the delivery of the property subject of the
action during its pendency, the party is availing of the (d) The actual market value of the property.
provisional remedy of replevin.
The applicant must also give a bond (called a replevin
For instance, if the plaintiff claims that the defendant bond) executed to the adverse party in double the
is in possession of his car without lawful cause, he value of the property as stated in the affidavit
may file an action for replevin. While the action is aforementioned, for the return of the property to the
pending, the plaintiff may ask the court to allow him to adverse party if such return be adjudged, and for the
have possession of the car in the meantime that the payment to the adverse party of such sum as he may
main action is not yet resolved, He may justify his recover from the applicant in the action.
application, for instance, by showing that he uses the
same in pursuit of his occupation and the continued PROPERTY IN CUSTODIA LEGIS
possession of the car by the defendant deprives him
of a vital source of income. The plaintiff may then It is a basic tenet of civil procedure that replevin will
apply for the issuance of a writ of replevin as a not lie for property in custodia legis. A thing is in
provisional remedy. The remedy availed of in seeking custodia legis when it is shown that it has been and is
possession of the property prior to the final subjected to the official custody of a judicial executive
determination of the action is the provisional remedy officer in pursuance of his execution of a legal writ.
of replevin and not the main action for replevin. The reason posited for this principle is that if it was
otherwise, there would be interference with the
Replevin as a provisional remedy may also be availed possession before the function of the law had been
of under the following facts given in a bar performed as to the process under which the property
examinations. "A sold five thousand piculs of sugar to B, was taken. Thus, a defendant in an execution or
payable on demand. Upon delivery of the sugar to B, attachment cannot replevy goods in the possession of
however, the latter did not pay its purchase price. After an officer under a valid process, although after the
the lapse of some time from the date of delivery of the levy is discharged, an action to recover possession

will lie. (Chua v. CA) Effect of dismissal of the complaint
Chua v. CA (1993) Advent Capital v. Young (2011)
Where personal property is seized under a search We agree with the Court of Appeals in directing the
warrant and there is reason to believe that the seizure trial court to return the seized car to Young since this
will not anymore be followed by the filing of a criminal is the necessary consequence of the dismissal of the
and there are conflicting claims over the seized replevin case for failure to prosecute without
property, the proper remedy is the filing of an action prejudice. Upon the dismissal of the replevin case for
for replevin, or an interpleader filed by the Government failure to prosecute, the writ of seizure, which is
in the proper court, not necessarily the same one merely ancillary in nature, became functus officio and
which issued the search warrant; however, where should have been lifted. There was no adjudication on
there is still a probability that the seizure will be the merits, which means that there was no
followed by the filing of a criminal action, as in the determination of the issue who has the better right to
case at bar where the case for carnapping was possess the subject car. Advent cannot therefore
"dismissed provisionally, without prejudice to its retain possession of the subject car considering that it
reopening once the issue of ownership is resolved in was not adjudged as the prevailing party entitled to
favor of complainant" (emphasis supplied), or the the remedy of replevin.
criminal information has actually been commenced, or
filed, and actually prosecuted, and there are xxx The dismissal of the replevin case for failure to
conflicting claims over the property seized, the proper prosecute results in the restoration of the parties’
remedy is to question the validity of the search status prior to litigation, as if no complaint was filed at
warrant in the same court which issued it and not in all. To let the writ of seizure stand after the dismissal
any other branch of the said court. of the complaint would be adjudging Advent as the
prevailing party, when precisely no decision on the
Thus, the Regional Trial Court of Cebu Branch VIII merits had been rendered. Accordingly, the parties
erred when it ordered the transfer of possession of the must be reverted to their status quo ante. Since Young
property seized to petitioner when the latter filed the possessed the subject car before the filing of the
action for replevin. It should have dismissed the case replevin case, the same must be returned to him, as if
since by virtue of the "provisional dismissal", of the no complaint was filed at all.
carnapping case there is still a probability that a
criminal case would be filed, hence a conflict in
When property is claimed by a third party
jurisdiction could still arise. The basic principle that a
judge who presides in one court cannot annul or
modify the orders issued by another branch of the Rule 60, Section 7. Proceedings where property
same court because they are co-equal and claimed by third person. – If the property taken is
independent bodies acting coordinately, must always claimed by any person other than the party against
be adhered to. whom the writ of replevin had been issued or his
agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the
How adverse party may seek the return of the
grounds therefor, and serves such affidavit upon the
property; Redelivery Bond
sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall
For the adverse party to effect the return of his
not be bound to keep the property under replevin or
property under the custody of the sheriff, the following
deliver it to the applicant unless the applicant or his
must be met:
agent, on demand of said sheriff, shall file a bond
approved by the court to indemnify the third-party
a) he should post a redelivery bond in an amount
claimant in a sum not less than the value of the
double the value of the property;
property under replevin as provided in section 2
b) the bond is executed to the applicant ; hereof. In case of disagreement as to such value, the
court shall determine the same. No claim for damages
c) he should serve a copy of the bond to the for the taking or keeping of the property may be
applicant; enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the
d) he must perform the above acts before the date of the filing of the bond.
delivery of the property to the applicant. This
means within five (5) days from the taking of The sheriff shall not be liable for damages, for the
the property by the sheriff ; taking or keeping of such property, to any such
third-party claimant if such bond shall be filed.
e) the bond is sufficient. Nothing herein contained shall prevent such claimant
or any third person from vindicating his claim to the

property, or prevent the applicant from claiming

damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in favor of the

Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as
a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefor, the actual
damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated
for the purpose.
Judgment
The judgment in a replevin suit is in the alternative,

i.e., to deliver the property to the party entitled to the
same or pay its value in case delivery cannot be
made.
If the property is no longer in the condition in which it

should be, the party entitled to its delivery may refuse
to accept the property. He may then ask for the
alternative remedy which is the payment of its value
even if he had previously sought its delivery during the
pendency of the case.

property. In that case, your remedy is to file

IV. SPECIAL CIVIL ACTIONS
action for interpleader. These two who are
claiming rights over the party, would litigate
1. Jurisdiction and venue amongst themselves for you to be able to
determine kanino ka magbabayad ng rent.
Jurisdiction over special civil actions is determined by
the Constitution and statutes. Requisites of Interpleader
On the other hand, the venue of civil actions is (a) There must be two or more claimants with
determined by the general rules on venue, unless adverse and conflicting interest upon a
otherwise subject to special rules for special civil subject matter.
actions.
(b) The conflicting claims involve the same
2. Interpleader (Rule 62) subject matter.
INTERPLEADER (c) The conflicting claims are made upon the

same person.
Rule 62, Section 1. When interpleader proper. –
Whenever conflicting claims upon the same subject (d) The plaintiff has no claim or his interest, in
matter are or may be made against a person who whole or in part in the subject is not disputed
claims no interest whatever in the subject matter, or an by the claimants.
interest which in whole or in part is not disputed by
the claimants, he may bring an action against the Who may file
conflicting claimants to compel them to interplead and
litigate their several claims among themselves. The person against whom the conflicting claims are
made and claims no interest in the subject matter.
The action of interpleader is a remedy whereby a
person who has property whether personal or real, in When to File
his possession, or an obligation to render wholly or
partially, without claiming any right in both, or claims The general rule is an action for interpleader must be
an interest which in whole or in part is not disputed by filed within a reasonable time after the dispute has
the conflicting claimants, comes to court and asks arisen, otherwise it may be barred by laches.
that the persons who claim the said property or who
consider themselves entitled to demand compliance What court has jurisdiction over interpleader?
with the obligation, be required to litigate among
themselves, in order to determine finally who is It depends on the value of the subject matter of the
entitled to one or the other thing. The remedy is claim.
afforded not to protect a person against a double
liability but to protect him against a double vexation in ■ If the subject matter of the action is personal
respect of one liability. When the court orders that the property – determine the value of the property
claimants litigate among themselves, there arises in
reality a new action and the former are styled ○ Above P300k (outside Metro Manila);
interpleaders, and in such a case the pleading which P400k (within Metro Manila) – RTC
initiates the action is called a complaint of interpleader
and not a cross-complaint. (Ocampo v. Tirona) ○ P300k (outside Metro Manila); P400k
(within Metro Manila) and below –
Illustrations: MTC
■ There are two persons contending who is the ○ RA 11576: up to 2M – MTC

real owner of the property and so I am now in
■ If the conflicting claims involve right to receive
conflict as to who I will demand the piano
particular sum – determine the amount of the
from. So in that case I will file an interpleader.
sum claimed
■ You are renting a place. Here comes
○ Above P300k (outside Metro Manila);
somebody claiming to be the owner of the
P400k (within Metro Manila) – RTC
property that you are leasing. So you do not
know where to pay the rent. Should it be the
○ P300k (outside Metro Manila); P400k
person with whom you had the transaction or
(within Metro Manila) and below –
should be this someone who came to you
MTC
claiming that he is the actual owner of the

○ RA 11576: up to 2M – MTC Examples:
■ If the subject matter is real property – ■ Ordinance is passed by LGU. This ordinance
determine the assessed value of the property is being implemented in the municipality. Prior
to preach of ordinance, you are of the opinion
○ Above P20K (outside Metro Manila); that this ordinance being implemented by the
P50K (within Metro Manila) – RTC LGU is unconstitutional. You can file an action
for declaratory relief for the Court to determine
○ P20K (outside Metro Manila); P400K the validity of ordinance, before you commit a
(within Metro Manila) and below – breach of the ordinance.
MTC
■ There is a contract. The provisions of that
○ RA 11576: up to 400K – MTC contract is vague. You could not agree on how
you are going to interpret the provisions of the
■ If the subject matter is incapable of pecuniary contract. Prior to violation of contract, one
estimation – RTC may file an action for declaratory relief, for the
court to interpret the vague provisions of the
NOTE: The jurisdictional amounts of MTC has been contract.
expanded pursuant to RA 11576. However, take note that
this law took effect last August 2021. The bar coverage is The purpose of the action is to secure an authoritative
only until June 30, 2021. It is better to know both rules statement of the rights and obligations of the parties
on jurisdictional amounts. under a statute, deed, contract, etc., for their
guidance in its enforcement or compliance and not to
Grounds for Dismissal settle issues arising from its alleged breach.
The following are submitted to be the allowable What are the actions that may be brought under
grounds for a motion to dismiss an interpleader under Rule 63?
the Amended Rules, to wit:
(1) Petition for Declaratory Relief – An action to
(1) Impropriety of Interpleader. determine any question of construction or
validity arising, and for a declaration of his
(2) Allowable grounds for a motion to dismiss rights or duties, thereunder.
under Section 12(a) of Rule 15:
(2) An action for the reformation of an
(a) Lack of jurisdiction over the subject instrument, to quiet title to real property or
matter remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil
(b) Litis pendentia Code.
(c) Res judicata ■ So, if you file action for reformation of

instrument, then that action is
(d) Prescription governed by Rule 63.
3. Declaratory relief and similar remedies (Rule REQUISITES FOR DECLARATORY RELIEF
63)
(a) The subject matter of the controversy must be
DECLARATORY RELIEF a deed, will, contract or other written
instrument, statute, executive order or
Declaratory relief is defined as an action by any regulation, or ordinance.
person interested in a deed, will, contract or other
written instrument, executive order or resolution, to (b) The terms of said documents and the validity
determine any question of construction or validity thereof are doubtful and require judicial
arising from the instrument, executive order or construction.
regulation, or statute; and for a declaration of his
rights and duties thereunder. The only issue that may (c) There must have been no breach of the
be raised in such a petition is the question of documents in question. (most important
construction or validity of provisions in an requisite)
instrument or statute. (Province of Camarines Sur vs.
CA) (d) There must be an actual justiciable
controversy or the "ripening seeds" of one

between persons whose interests are adverse. relief for the simple reason that if a party is not
agreeable to a decision either on questions of law or
(e) The issue must be ripe for judicial of fact, he may file with the trial court a motion for
determination. reconsideration or a new trial in order that the defect
may be corrected.
(f) Adequate relief is not available through other
means or other forms of action or proceeding. WHO MAY FILE ACTION
NOTE: Declaratory relief must be filed before any (a) Any interested person under a deed, will,
breach or violation. If the law or contract has been contract or other written instrument;
violated prior to the filing of declaratory relief, the latter
recourse should be dismissed (Malana vs. Tappa). (b) Persons whose rights are affected by a
statute, executive order or regulation,
However, if the breach occurred during the pendency ordinance, or any other governmental
of declaratory relief, the latter will converted to regulation.
ordinary civil action.
WHERE TO FILE DECLARATORY RELIEF;
Malana v. Tappa JURISDICTION
Since the purpose of an action for declaratory relief is The exclusive and original jurisdiction is with the
to secure an authoritative statement of the rights and Regional trial Court since the subject in a petition for
obligations of the parties under a statute, deed, or declaratory relief is incapable of pecuniary estimation.
contract for their guidance in the enforcement thereof,
or compliance therewith, and not to settle issues The Supreme Court has no original jurisdiction over
arising from an alleged breach thereof, it may be these petitions, only appellate jurisdiction. (Clark
entertained only before the breach or violation of the Investors and Locators Assn. vs. Secretary)
statute, deed, or contract to which it refers.
If the action is for quieting of title to real property, the
Where the law or contract has already been jurisdiction will depend on the assessed value of the
contravened prior to the filing of an action for property.
declaratory relief, the courts can no longer assume
jurisdiction over the action. In other words, a court has Who shall be impleaded as parties
no more jurisdiction over an action for declaratory
relief if its subject has already been infringed or 1) All persons who have or claim any interest
transgressed before the institution of the action. which would be affected by the declaration.
Subject matter of petition for declaratory relief 2) In any action which involves the validity of a
statute, executive order or regulation, or any
(1) Deed other governmental regulation, the Solicitor
General shall be notified by the party assailing
(2) Will the same and shall be entitled to be heard
(3) Contract or other written instrument upon such question.
(4) Statute 3) In any action involving the validity of a local

(5) Executive order or regulation government ordinance, the corresponding
prosecutor or attorney of the local
(6) Ordinance, or governmental unit involved shall be similarly
(7) Any other government regulation. notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional,
The above enumerated subject matters are exclusive. the Solicitor General shall also be notified and
entitled to be heard.
Mangahas v. Paredes
Section 2 of Rule 63 contemplates a situation where
there are other persons who would be affected by the
An order by the RTC denying petitioner’s motion to
declaration, but were not impleaded as necessary
suspend the implementation of writ of execution
parties, in which case the declaration shall not
cannot become a subject matter of declaratory relief.
prejudice them. The non-joinder of necessary parties
is not a jurisdictional defect. It may be a ground for
Tanda v. Aldaya
dismissal under Section 5 of Rule 63.
A court decision cannot be the subject of declaratory

When Court may refuse to make Judicial equitable title to or interest in the real
Declaration property subject of the action; and (2)
the deed, claim, encumbrance, or
Except in actions falling under the second paragraph proceeding claimed to be casting
of Section 1 of this Rule, the Court, motu proprio or cloud on his title must be shown to be
upon motion, may refuse to exercise the power to in fact invalid or inoperative despite its
declare rights and to construe instruments in any case prima facie appearance of validity or
where a decision would not terminate the uncertainty legal efficacy.
or controversy which gave rise to the action, or in any
case where the declaration or construction is not (c) An action to consolidate ownership required
necessary and proper under the circumstances. by Article 1607 of the Civil Code in a sale with
a right to repurchase.
If the action is for the reformation of an instrument, to
quiet title to real property or remove clouds therefrom, ■ The action brought to consolidate
or to consolidate ownership under Article 1607 of the ownership is not for the purpose of
Civil Code, the court must decide the case. consolidating the ownership of the
property in the person of the vendee
Conversion to Ordinary Action or buyer but for the registration of the
property. The lapse of the redemption
If before the final termination of the case, a breach or period without the seller a retro
violation of an instrument or a statute, executive order exercising his right of redemption
or regulation, ordinance, or any other governmental consolidates ownership or title upon
regulation should take place, the action may the person of the vendee by operation
thereupon be converted into an ordinary action, and of law. (Rosario v. Rosario)
the parties shall be allowed to file such pleadings as
may be necessary or proper. 4. Prohibition, Certiorari, and Mandamus
A petition for declaratory relief is filed before the PROHIBITION

occurrence of any breach or violation of the deed,
contract, statute, ordinance or executive order or
Prohibition is a writ issued by the proper court and
regulation. It will not prosper when brought after a
directed against any tribunal, corporation, board,
contract or a statute has already been breached or
officer or person, whether exercising judicial,
violated. If there has already been a breach, the
quasi-judicial or ministerial functions, commanding
appropriate ordinary civil action and not declaratory
the respondent to desist from further proceedings
relief should be filed. (City of Lapu Lapu v. PEZA)
in the action or matter specified therein.
Proceedings Considered as Similar Remedies
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
These remedies are considered similar to declaratory
sought to be prevented during the pendency of the
relief because they also result in the adjudication of
proceedings for the writ, the petitioner should obtain a
legal rights of the litigants, often without the need of
restraining order and/or a writ of preliminary
execution to carry the judgment into effect:
injunction.
(a) An action for the reformation of an
The office of prohibition is not to correct errors of
instrument, recognized under Articles 1359 to
judgment but to prevent or restrain usurpation by
1369 of the Civil Code;
inferior tribunals and to compel them to observe the
limitation of their jurisdictions.
■ Reformation is a remedy in equity,
whereby a written instrument is made
REQUISITES FOR PROHIBITION
or construed so as to express or
conform to the real intention of the
(a) It must be directed against a tribunal,
parties, where some error or mistake
corporation, board or person exercising
has been committed.
functions, judicial or ministerial;
(b) An action to quiet title, authorized by Articles
(b) The tribunal, corporation, board or person has
476 to 481 of the Civil Code; and
acted without or in excess of its jurisdiction, or
with grave abuse of discretion; and
■ For an action to quiet title to prosper,
two indispensable requisites must
(c) There is no appeal or any other plain, speedy,
concur, namely: (1) the plaintiff or
and adequate remedy in the ordinary course
complainant has a legal or an

of law. regard to the exercise of judgment upon the propriety

or impropriety of the act done. (Cudia v.
The definition and purpose of a writ of prohibition Superintendent)
excludes the use of the writ against any person or
group of persons acting in a purely private capacity, Mandamus “will lie to compel discharge of the
and the writ will not be issued against private discretionary duty itself but not to control the
individuals or corporations so acting. discretion to be exercised. In other words, a
mandamus can be issued to require action, but not
Accomplished Facts / Fait Accompli specific action.”
A petition for prohibition is intended to prohibit or MANDAMUS WILL NOT LIE ON THE FOLLOWING
prevent future acts done without authority or CASES:
jurisdiction, and is not proper for acts already
accomplished. (1) Mandamus will not lie to compel the discretion
of the judge to decide a motion pending
Nonetheless, even when an act is already fait before him in a particular way. (Morada vs.
accompli, the Supreme Court has allowed a writ of Caluag)
prohibition in the following cases:
(2) Mandamus will not lie against a government
(1) Where it would prevent the creation of a new school or an official with the duty that involves
province by those in the corridors of power exercise of discretion like admission of the
who could avoid judicial intervention and students. (UP vs. Ayson)
review by merely speedily and stealthily
completing the commission of such illegality. (3) Mandamus will not lie to compel UP to allow
the graduation of a student who failed to meet
(2) Where it would provide a complete relief by the requirements. (Magtibay vs. Garcia)
not only preventing what remains to be done
but by undoing what has been done, such as (4) Mandamus will not lie to compel the
terminating a preliminary investigation instead prosecutor to file an Information. (Hegerty vs.
of filing a motion to quash. CA)
(3) Where the acts sought to be enjoined were (5) Mandamus will not lie to compel the PMA to
performed after the injunction suit was restore cadet’s rights and entitlement as a full
brought. fledged graduating cadet. (Cudia vs.
Superintendent of PMA)
MANDAMUS
Grounds for mandamus to issue
Mandamus is a writ to compel a tribunal, corporation,
When any tribunal, corporation, board, officer or
board, officer or person to do the act required to be
person unlawfully,
done to protect the rights of the petitioner when the
respondent unlawfully neglects the performance of an
(a) Neglects the performance of an act which the
act which the law specifically enjoins as a duty
law specifically enjoins as a duty resulting
resulting from an office, trust, or station, or excludes
from an office, trust, or station, or
another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other
(b) Unlawful exclusion of another from the use
plain, speedy and adequate remedy in the ordinary
and enjoyment of a right or office to which
course of law.
such other is entitled.
The writ of mandamus issues only in cases relating to
INJUNCTIVE RELIEF
the public and to the government; hence, it is called a
prerogative writ. To preserve its prerogative character,
The court in which the petition is filed may issue
mandamus is not used for the redress of private
orders expediting the proceedings, and it may also
wrongs, but only in matters relating to the public.
grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights
Mandamus will lie to compel the doing of a
of the parties pending such proceedings. The petition
ministerial act
shall not interrupt the course of the principal case,
unless a temporary restraining order or a writ of
The act is ministerial if the act should be performed
preliminary injunction has been issued, enjoining the
under a given state of facts, in a prescribed manner, in
public respondent from further proceeding in the case.
obedience to the mandate of a legal authority, without

The public respondent shall proceed with the principal Southern Hemisphere Engagement Network vs.
case within ten (10) days from the filing of a petition Anti Terrorism Council
for certiorari with a higher court or tribunal, absent a
temporary restraining order or preliminary injunction, A petition for certiorari challenging the validity of the
or upon its expiration. Failure of the public respondent Human Security Act of 2007 filed against the
to proceed with the principal case may be a ground Anti-Terrorism Council and its members was
for an administrative charge. dismissed as said council is not exercising judicial or
quasi-judicial function.
CERTIORARI
MBTC vs. NWPC
CERTIORARI
Petition for certiorari will not lie against the RTWPB for
Certiorari is a writ emanating from the proper court the wage order that it issued because what was
directed against any tribunal, board or officer exercised is quasi-legislative function.
exercising judicial or quasi-judicial functions, the
purpose of which is to correct errors of jurisdiction - Galicto vs. Aquino
i.e. without or in excess of jurisdiction, or with grave
abuse of discretion amounting to the same. Petition for certiorari will not lie to question the
Executive Order issued by the President for the reason
It is also called “prerogative writ” because it is not that the same was issued in the exercise of the
demandable as a matter of right. Its purpose is the president’s quasi-legislative power.
correction of errors of jurisdiction which includes
commission of grave abuse of discretion amounting to ● Second Requisite — Grave abuse of
lack or excess of jurisdiction. It is an original and discretion amounting to lack or excess of
independent action and not a mode of appeal. jurisdiction
REQUISITES FOR A PETITION FOR CERTIORARI Without jurisdiction → denotes the tribunal, board or
officer acted with absolute lack of authority.
(a) The petition is directed against a tribunal, Excess of jurisdiction → occurs when the public
board, or officer exercising judicial or respondent exceeds its power or acts without
quasi-judicial functions. statutory authority.
(b) Such tribunal, board, or officer has acted Grave abuse of discretion → connotes such
without or in excess of jurisdiction or with capricious and whimsical exercise of judgment as to
grave abuse of discretion amounting to lack or be equivalent to lack or excess of jurisdiction or the
excess of jurisdiction. power is exercised in an arbitrary or despotic manner
by reason of passion, prejudice or personal hostility.
(c) There is neither appeal nor plain, speedy or
adequate remedy in the ordinary course of law ● Third Requisite — No appeal and other
for the purpose of annulling or modifying the speedy remedy
proceeding.
Certiorari is not available where the aggrieved party’s
● First Requisite — The respondent must be remedy of appeal is plain, speedy and adequate
exercising judicial or quasi-judicial remedy in the ordinary course of law.
function.
Certiorari is a remedy of last resort. It is not available if
Judicial function is the power to determine what the the party still has another speedy and adequate
law is and what the legal rights of the parties are, and remedy (such as appeal) available.
then undertake to determine these questions and
adjudicate the rights of the parties. Certiorari cannot be a substitute for appeal, much
less lost appeal. Nevertheless, even when appeal is
Quasi-judicial function is the power of an available and is the proper remedy, the Supreme
administrative agency to investigate facts or ascertain Court has allowed a writ of certiorari in the following
the existence of facts, hold hearings, and draw instances:
conclusions from them as a basis for its official action
and to exercise discretion of a judicial nature. (1) Where appeal does not constitute a speedy
and adequate remedy;

(2) Where orders were also issued either in (b) The petition shall be accompanied by:
excess of or without jurisdiction;
1. A certified true copy of the judgment,
(3) For certain special considerations, as public order or resolution subject thereof.
welfare or public policy;
2. Copies of all pleadings and
(4) Where, in criminal actions, the court rejects documents relevant and pertinent
the rebuttal evidence for the prosecution as, in thereto.
the case of acquittal, there could be no
remedy; 3. Sworn certification of non-forum
shopping.
(5) Where the order is a patent nullity; and
A petition is procedurally flawed if Sec. 1 of Rule 65 is
(6) Where the decision in the certiorari case will not complied with because there are documents
avoid future litigations. important for the court’s appraisal, evaluation and
judicious disposition of the case. Non-observance of
Even when the period for appeal has lapsed, the the rule is a sufficient cause for dismissal of the
Supreme Court has allowed a writ of certiorari in the petition and cannot be merely brushed aside as a
following situations: mere technicality.
(a) When appeal is lost without the appellants’ When to file petition
negligence;
The petition shall be filed not later than sixty (60) days
(b) When public welfare and the advancement of from notice of the judgment, order or resolution. In
public policy dictates; case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the
(c) When the broader interest of justice so petition shall be filed not later than sixty (60) days
requires; counted from the notice of the denial of the motion.
(d) When the writs issued are null and void; and The 60-day period within which to file a petition for
certiorari under Rule 65 is non-extendible. However,
(e) When the questioned order amounts to an under the following exceptional circumstances, the
oppressive exercise of judicial authority. Court may extend the period according to its sound
discretion:
a. Certiorari as a remedy against grave abuse of
any branch or instrumentality of the (a) Most persuasive and weighty reasons.
government
(b) To relieve a litigant from injustice
Expanded Scope of Certiorari (c) Good faith of the defaulting party
(d) Compelling circumstances
While Rule 65 specifically requires that the respondent
be a tribunal, board, or officer exercising judicial or (e) Merits of the case
quasi-judicial functions, recent pronouncements of the
(f) Cause not entirely attributable to the
Court have extended the reach of the petition to
defaulting party
functions that are neither judicial or quasi-judicial.
Petitions for certiorari and prohibition are appropriate (g) No showing that it is frivolous
remedies to raise constitutional issues and to review
(h) In the name of substantial justice and fair play
and/or prohibit or nullify the acts of legislative and
executive officials. (i) Importance of issues involved.
WHEN AND WHERE TO FILE PETITION FOR Where to file Petition

CERTIORARI
Supreme Court Subject to the doctrine of
Formal requirements for filing the petition hierarchy of courts and only
when compelling reasons
(a) A verified petition is filed in the proper court exist for not filing the same
alleging the facts with certainty and praying with the lower courts.
for the proper judgment.
Regional Trial If the petition relates to an
Court act or an omission of a

(h) The proceedings is a total nullity.

municipal trial court or of a
corporation, a board, an
(i) The issue raised is one purely of law or where
officer or a person.
public interest is involved.
Court of Appeals If the petition involves an act
5. Quo warranto (Rule 66)
only or an omission of a
quasi-judicial agency, unless
It is a proceeding generally defined as an action
otherwise provided by law or
against a person who usurp, intrudes into, or
rules.
unlawfully holds or exercise a public office (Tecson vs.
Court of Appeals Whether or not in aid of COMELEC) or even a public franchise (Sec. 1, Rule 66)
or Sandiganbayan appellate jurisdiction.
If a corporation is de facto, the only way to challenge
Commission on In election cases involving it is direct action through quo warranto.
Elections an act or an omission of a
municipal or a regional trial Illustration: In matters of franchise, what the SolGen
court, in aid of its appellate did against ABS-CBN when Congress is still
jurisdiction. deliberating on whether to extend the franchise of
ABS-CBN, nag-file sila ng quo warranto against
ABS-CBN for violation of their franchise, because that
Does the filing of a petition stay the proceedings? is within the coverage of quo warranto.
No. The petition shall not interrupt the course of the

Rule 66, Section 1. Action by Government against
principal case unless a temporary restraining order or
individuals. – An action for the usurpation of a public
a writ of preliminary injunction has been issued
office, position or franchise may be commenced by a
against the public respondent from further proceeding
verified petition brought in the name of the Republic
in the case.
of the Philippines against:
Motion for Reconsideration is required before filing
(a) A person who usurps, intrudes into, or unlawfully
a Petition
holds or exercises a public office, position or franchise;
A motion for reconsideration is a condition sine qua
(b) A public officer who does or suffers an act which,
non for the filing of a petition for certiorari, prohibition,
by the provision of law, constitutes a ground for the
or mandamus. Its purpose is to grant an opportunity
forfeiture of his office; or
for the court to correct any actual or perceived error
attributed to it by re-examination of the legal and
(c) An association which acts as a corporation within
factual circumstances of the case.
the Philippines without being legally incorporated or
without lawful authority so to act.
However, in certain cases, motion for reconsideration
may be dispensed with:
May it be filed by an individual?
(a) The order is patent nullity.
YES. A person claiming to be entitled to a public office
(b) The issue has been duly raised and passed by or position usurped or unlawfully held or exercised by
the lower court. another may bring an action therefor in his own name
(Sec. 5, Rule 66).
(c) There is an urgent necessity for the resolution
of the question. Example: As incumbent budget officer, I was
dismissed by the governor. I challenge that dismissal
(d) The subject matter of the action is perishable. of the governor in court. Meanwhile, the governor
appointed somebody in my position as budget officer,
(e) Petitioner is deprived of due process. I won in a case. But, when I returned, there was
somebody else occupying my position as budget
(f) Under the circumstances, a motion for officer. I can file petition/action for quo warranto in
reconsideration would be useless. order to exclude the one occupying from said position.
(g) In a criminal case, relief from an order of arrest Who may commence the petition?
is urgent and the granting of such relief by the
trial court is improbable. 1. Solicitor General
2. Public Prosecutor

3. Private person expropriation. This will govern the procedure on how

to execute the power of eminent domain.
When may the Solicitor General or Public
Prosecutor commence the petition? If the government will desire to take possession of the
property, it should be for public use, , because that is
1) When directed by the President of the a requirement so that the property may be taken by
Philippines; the government. The government must file first a
petition in court.
2) When upon complaint;
The government and the State has the power to take
3) Or he has good reason to believe that the private property for public use. It is provided in Art. III,
case should be filed (Sec. 2, Rule 66). Sec 9, of the 1987 Constitution.
Republic v. Sereno – quo warranto case filed by the Can the government divert the use of property
OSG against the then CJ Maria Lourdes Sereno. You taken different from the purpose for which the
have to read this case. petition was filed?
JURISDICTION AND VENUE No. a condemnor should commit the use of the
property pursuant to the purpose stated in the petition
An action under the preceding six sections can be for expropriation, failing which it should file another
brought only in the Supreme Court, the Court of petition for new purpose. If not, then it behooves the
Appeals, or in the Regional Trial Court exercising condemnor to return the said property to its owner, if
jurisdiction over the territorial area where the the latter so desires (Vda. De Ounao vs. Republic)
respondent or any of the respondents resides, but
when the Solicitor General commences the action, it TAKE NOTE:
may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme Expropriation is allowed even when the object is a
Court (Sec. 7, Rule 66) personal property. Notice to expropriate is not the
same as complaint for expropriation. In notice, you
Thus, you have to determine first who is filing. were just notified. If there is a complaint for
expropriation, the owner can still sell the property
● Private person — RTC, CA, SC subject however to the results/outcome of the
● Solicitor General — RTC of Manila only (not expropriation case if the sale is annotated at the back
all RTC), CA, SC of the TCT.
Period for the filing of petition Based on jurisprudence, if it is the State itself through
Congress, which is exercising the power of
Rule 66, Section 11. Limitations. – Nothing contained expropriation, the propriety of the exercise and the
in this Rule shall be construed to authorize an action necessity of the exercise of the power of eminent
against a public officer or employee for his ouster from domain is a political question. It means that if it is the
office unless the same be commenced within one (1) State itself, which is filing the petition for
year after the cause of such ouster, or the right of the expropriation, you cannot question the necessity or
petitioner to hold such office or position, arose; nor propriety of the exercise of the power because that is
to authorize an action for damages in accordance with a political question.
the provisions of the next preceding section unless the
same be commenced within one (1) year after the entry BUT if the one exercising the power of eminent
of the judgment establishing the petitioner’s right to domain is a delegate, the propriety of the exercise and
the office in question. the necessity of the exercise is not a political question.
It can be questioned in court. That’s why in a petition
In Republic v. Sereno, the case was filed against for expropriation, there are 2 PHASES/STAGES.
Sereno in 2017. According to Sereno, she was
appointed 2012 as CJ, so barred or prescribed na ang Requisites of “taking” in eminent domain cases
action because under the Constitution within 1 year
lang. Sabi ng SC, prescription does not lie against The landmark case of Republic v. Vda. De Castellvi
the government (State). provides an enlightening discourse on the requisites of
taking.
6. Expropriation
a. Rule 67 1) First, The expropriator must enter a private
property;
Rule 67 is the procedural aspect of the power of
2) Second, the entrance into private property

must be for more than a momentary period; (Beluso v. Municipality of Panay)
3) Third, the entry into the property should be The LGU may immediately take possession of the
under warrant or color of legal authority; property if the following requisites are met:
4) Fourth, the property must be devoted to a 1) Expropriation proceedings are filed; and
public use or otherwise informally
appropriated or injuriously affected; and 2) The LGU makes a deposit with the proper
court of at least 15% of the fair market value
5) Fifth, the utilization of the property for public of the property at the time of the taking of the
use must be in such a way as to oust the property.
owner and deprive him of all beneficial
enjoyment of the property. EXTENT OF EXPROPRIATION
Thus, when an expropriator, authorized by law to Expropriation is not limited to the acquisition of real
exercise eminent domain, enters a private property to property with a corresponding transfer of title or
construct transmission lines to be used in generating possession. The right-of-way easement resulting in a
electricity for the benefit of the public, stays in the restriction or limitation on property rights over the land
property for indefinitely, and as a result thereof, the traversed by transmission lines also falls within the
owner of the property is deprived of the beneficial ambit of the term "expropriation." (NPC v. Vda. de
ownership of the same, there is “taking”. (NTC vs Capin)
Oroville)
Normally, of course, the power of eminent domain
EXERCISE OF EMINENT DOMAIN BY LGUs results in the taking or appropriation of title to, and
possession of, the expropriated property; but no
LGUs by themselves have no inherent power of cogent reason appears why said power may not be
eminent domain. Thus, strictly speaking, the power of availed of to impose only a burden upon the owner of
eminent domain delegated to an LGU is in reality not condemned property, without loss of title and
eminent but "inferior" since it must conform to the possession. It is unquestionable that real property
limits imposed by the delegation and thus partakes may, through expropriation, be subjected to an
only of a share in eminent domain. The national easement of right-of-way. (Republic v. PLDT)
legislature is still the principal of the LGUs and the
latter cannot go against the principal's will or modify STAGES IN EXPROPRIATION PROCESS
the same.
Sec. 19 of the Local Government Code laid down FIRST STAGE → the determination of the authority of
the requisites before a LGU can exercise the power the plaintiff to expropriate. This determination includes
of eminent domain: an inquiry into the propriety of the expropriation – its
necessity and the public purpose.
1) There must be an ordinance enacted for the
purpose. The first stage will end in the issuance of an order of
expropriation if the court finds for the plaintiff, or in the
2) The power of eminent domain is exercised for dismissal of the complaint if it finds otherwise.
public use, purpose or welfare or for the
benefit of the poor and landless. Judge Gito: Pwede mong question-in, “Bakit naman sa
lupa namin madadaan iyan, eh may mas ibang lupang
3) It must be exercised through its chief dapat dumaan?” “Bakit sa lupa ni Ms. Jimenez, eh pwede
executive. naming sa lupa ni Joanna?” Pwedeng ganun ang question
mo.
4) There is payment of just compensation.
SECOND STAGE → determination of just
5) A valid and definite offer has been previosul;y compensation.
made to the owner but it was not accepted.
■ The determination of just compensation is a
A local government unit cannot authorize an judicial function. It is vested with the courts
expropriation of private property through a mere and not with administrative agencies.
resolution of its lawmaking body. The Local
Government Code expressly requires an ordinance for MATTERS TO BE ALLEGED IN THE PETITION
the purpose and a resolution that merely expresses
the sentiment of the municipal council will not suffice. Rule 67, Section 1. The complaint. – The right of
eminent domain shall be exercised by the filing of a

verified complaint which shall: for expropriation? Ang effect ay ang first stage ay tapos
na. Pero hindi ka made-deprive ng right to present
(a) state with certainty the right and purpose of evidence on just compensation. Ang na-waive mo lang
expropriation, yung first stage. Pero yung second stage, kahit wala kang
answer, pwede ka pa rin mag-file ng evidence on the just
(b) describe the real or personal property sought to be compensation that the government is supposed to pay
expropriated, and you for expropriating your property. Kung sakali man na
hindi ka nakafile ng answer, ang matatapos lang diyan ay
(c) join as defendants all persons owning or claiming yung first stage.
to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate What is the effect if objections of the defendant
interest of each defendant. If the xxx plaintiff cannot are overruled or the defendant did not object on
with accuracy or certainty specify who are the real the authority and purpose of the expropriation or
owners, averment to that effect shall be made in the no party appears to object?
complaint.
The court may issue an order of expropriation
DEFENSES AND OBJECTIONS IN THE ANSWER declaring that the plaintiff has a lawful right to take the
property sought to be expropriated, for the public use
Without objection or purpose described in the complaint, upon the
payment of just compensation to be determined as of
■ If a defendant has no objection or defense to the date of the taking of the property or the filing of
the action or the taking of his property, he the complaint, whichever came first (Sec. 4, Rule 67).
may file and serve a notice of appearance and
a manifestation to that effect, specifically Can you appeal/question this order of
designating or identifying the property in expropriation/condemnation? Is it a final order or
which he claims to be interested, within the an interlocutory order?
time stated in the summons. Thereafter, he
shall be entitled to notice of all proceedings It is a final order. This order of
affecting the same (Sec. 3, Rule 67). expropriation/condemnation terminates the first stage
of expropriation. You can appeal it through record
With objection on appeal. (30 days from notice of judgment)
■ If a defendant has any objection to the filing of ■ Record on Appeal is available on those cases
or the allegations in the complaint, or any which are susceptible to multiple appeals, one
objection or defense to the taking of his of which is expropriation. A case is
property, he shall serve his answer within the susceptible of multiple appeals if it has
time stated in the summons. The answer shall STAGES.
specifically designate or identify the property
in which he claims to have an interest, state The right of the plaintiff to enter upon the property of
the nature and extent of the interest claimed, the defendant and appropriate the same for public use
and adduce all his objections and defenses to or purpose shall not be delayed by an appeal from the
the taking of his property. (Sec. 3, Rule 67) judgment (Sec. 11, Rule 67) The judgment of the
Court in an expropriation proceeding is executory.
■ Omnibus motion rule is applicable — He
must allege all his objections and defenses ● Example: Inappeal mo yung first stage. Will it
because those not alleged are deemed impede the hearing on just compensation?
waived. NO. Will it impede the possession by the
plaintiff of the expropriated property? NO.
May the defendant be declared in default in not
presenting evidence on just compensation? What if the RTC is reversed on appeal?
NO. At the trial of the issue of just compensation, If the appellate court determines that plaintiff has no
whether or not a defendant has previously appeared right of expropriation, judgment shall be rendered
or answered, he may present evidence as to the ordering the Regional Trial Court to forthwith enforce
amount of the compensation to be paid for his the restoration to the defendant of the possession of
property, and he may share in the distribution of the the property, and to determine the damages which the
award. (Sec. 3, Rule 67) defendant sustained and may recover by reason of the
possession taken by the plaintiff (Sec. 11, Rule 67)
Judge Gito: Dito sa expropriation, walang default. Ano
ang effect kapag hindi ka nag-file ng answer sa complaint If the judgment on the first stage of the RTC is
reversed on appeal, there will be restoration of

property and damages. ■ Hearing before commissioners is

indispensable.
WHICH COURT HAS JURISDICTION
■ Trial with aid of commissioner is a substantial
The RTC has jurisdiction because petition for right (NPC vs. De la Cruz).
expropriation is an action incapable of pecuniary
estimation regardless of the value of the subject ■ The findings of the commissioner may be
property (Barangay San Roque vs. Heirs of Pastor) disregarded by the Judge but the latter may
do so only for valid reason (NPC vs. Dela Cruz).
WHEN IS POSSESSION ON THE PROPERTY
ALLOWED ■ Just compensation should be determined as
of the date of the taking of the property or the
filing of the complaint, whichever came first
There are instances where the expropriator or the (Sec. 4, Rule 67).
plaintiff can already file a motion to possess the
property. But there are different rules on the matter: Judge Gito: Ang expropriation proceedings ay isa sa
mga kaso which shall be tried by commission. How
1) Under the Rules of Court – upon the many? 3 commissioners. Ang function ng
deposits by expropriator of an amount commissioner ay ang mag-determine ng value ng
equivalent to the assessed value of the property ng property (just compensation). It is
property for purposes of taxation with the mandatory for the court to appoint 3
authorized government depositary (Sec. 2, commissioners. The court cannot decide on the just
Rule 67). compensation without constituting 3 commissioners.
Substantive right ito.
■ Prior hearing is not required before the
Republic can be granted immediate What is the effect of non-payment of just
possession of the property. The compensation?
defenses by the owner against the
immediate possession could be Non-payment of just compensation does not
considered in the trial on the merits. automatically entitle the private landowner to recover
All that is required is notice to the possession of the expropriated lots. However, in
owner and the deposit. cases where the government failed to pay just
compensation within five (5) years from the finality of
2) Under the LGC – LGU may take possession judgment in the expropriation proceedings, the
of the property upon filing of petition and after owners concerned shall have the right to recover
making a deposit of 15% of the market value possession of their property (Republic vs. Lim)
of property based on the current tax
declaration (Sec. 19, LGC.) Judge Gito: The case of Republic v. Lim is doctrinal. Prior
to this case, if after 5 years, if the government after
3) Under R.A. 8974 – with respect to taking possession of ownership of the property, tapos di
government infrastructure projects, upon filing naman nagbayad ang gobyerno, ang remedy lang ng land
of complaint and payment to the owner of owner is to file an action for just compensation. Pero
sum equivalent to 100% of the value of the wala silang right to recover the property expropriated
property based on current relevant zonal despite the non-payment of just compensation. Until the
valuation. Supreme Court promulgated the case of Republic v. Lim.
In this case, sabi ng SC, if within 5 years from the finality
NOTE: If LGC is not applicable or that the property of judgment, the owner of the property is not paid by the
taken is not for a government infrastructure project, it government just compensation, the remedy of the owner
is Rule 67, Section 2 which is applicable with respect is to file an action for recovery of possession.
to when possession should be allowed (Republic vs.
Gingoyon)
Republic v. Lim (2005)
PAYMENT OF JUST COMPENSATION Whether the Republic has retained ownership of the
property despite its failure to pay respondent’s
What are the rules on ascertainment of just predecessors-in-interest the just compensation
compensation? therefor pursuant to the judgment of the CFI rendered
as early as May 14, 1940?
■ Appointment of 3 commissioners is
mandatory (Sec. 5, Rule 67). Without full payment of just compensation, there can
be no transfer of title from the landowner to the

expropriator. Otherwise stated, the Republic’s property the amount equivalent to the sum of
acquisition of ownership is conditioned upon the full (1) one hundred percent (100%) of the value of
payment of just compensation within a reasonable the property based on the current relevant
time. zonal valuation of the Bureau of Internal
Revenue (BIR); and (2) the value of the
In Republic v. Salem Investment Corporation, we ruled improvements and/or structures as
that, "the process is not completed until payment of determined under Section 7 hereof;
just compensation." Thus, here, the failure of the
Republic to pay respondent and his b) In provinces, cities, municipalities and other
predecessors-in-interest for a period of 57 years areas where there is no zonal valuation, the
rendered the expropriation process incomplete. BIR is hereby mandated within the period of
sixty (60) days from the date of the
Here, Republic was ordered to pay just compensation expropriation case, to come up with a zonal
twice, the first was in the expropriation proceedings valuation for said area; and
and the second, in Valdehueza. 57 years have passed
since then. We cannot but construe the Republic’s c) In case the completion of a government
failure to pay just compensation as a deliberate infrastructure project is of utmost urgency and
refusal on its part. Under such circumstance, importance, and there is no existing valuation
recovery of possession is in order. of the area concerned, the implementing
agency shall immediately pay the owner of the
In summation, while the prevailing doctrine is that "the property its proffered value taking into
non-payment of just compensation does not entitle consideration the standards prescribed in
the private landowner to recover possession of the Section 5 hereof.
expropriated lots, however, in cases where the
government failed to pay just compensation within five Upon compliance with the guidelines
(5) years from the finality of the judgment in the above-mentioned, the court shall immediately issue to
expropriation proceedings, the owners concerned the implementing agency an order to take possession
shall have the right to recover possession of their of the property and start the implementation of the
property. This is in consonance with the principle that project.
"the government cannot keep the property and
dishonor the judgment." To be sure, the five-year Before the court can issue a Writ of Possession, the
period limitation will encourage the government to pay implementing agency shall present to the court a
just compensation punctually. This is in keeping with certificate of availability of funds from the proper
justice and equity. After all, it is the duty of the official concerned.
government, whenever it takes property from private
persons against their will, to facilitate the payment of In the event that the owner of the property contests
just compensation. In Cosculluela v. Court of Appeals, the implementing agency’s proffered value, the court
we defined just compensation as not only the correct shall determine the just compensation to be paid the
determination of the amount to be paid to the property owner within sixty (60) days from the date of filing of
owner but also the payment of the property within a the expropriation case. When the decision of the court
reasonable time. Without prompt payment, becomes final and executory, the implementing
compensation cannot be considered "just." agency shall pay the owner the difference between the
amount already paid and the just compensation as
determined by the court.
b. Guidelines for expropriation proceedings of
National Government 7. Foreclosure of real estate mortgage
Foreclosure of real estate mortgage presupposes that

c. Infrastructure Projects (Sec. 4, R.A. No. 8974) the debtor failed to pay his debt despite demand. The
default of the debtor must first be established.
Section 4. Guidelines for Expropriation
Proceedings. - Whenever it is necessary to acquire The issue of whether demand was made before the
real property for the right-of-way or location for any foreclosure was effected is essential. If demand was
national government infrastructure project through made and duly received by the respondents and the
expropriation, the appropriate implementing agency latter still did not pay, then they were already in default
shall initiate the expropriation proceedings before the and foreclosure was proper. However, if demand was
proper court under the following guidelines: not made, then the loans had not yet become due and
demandable. This meant that respondents had not
a) Upon the filing of the complaint, and after due defaulted in their payments and the foreclosure by
notice to the defendant, the implementing petitioner was premature. Foreclosure is valid only
agency shall immediately pay the owner of the when the debtor is in default in the payment of his

obligation. (General Milling Corp v. Spouses Ramos) mortgage contract ay real action because when your
action is for annulment of real estate mortgage prior to
In an indebtedness subject to mortgage, the foreclosure, that is an action incapable of pecuniary
creditor has the following alternative remedies: estimation.
1. To file an action for collection of sum of JUDICIAL FORECLOSURE HAS TWO STAGES:
money.
2. To foreclose the mortgage. 1) First stage → Judgment which provides for
the determination of the amount due and the
The remedies are mutually exclusive; such that the order from the court that this amount due be
availment of one, excludes the other. Therefore, if one paid within a period not less than 90 days but
files a collection suit and then thereafter files a petition not more than 120 days, and an admonition
for foreclosure of mortgage, the same constitute a that if the mortgagor did not pay, it will be
splitting of cause of action (Bank of America, NT & SA sold to public auction.
vs. American Realty Corp)
2) Second stage → order for confirmation of
Pwede bang ganito ang agreement: Kapag di ka sale.
nakabayad, yung mortgaged property, akin nalang
yung property. Pwede ba ‘yun? Judgment On Foreclosure
NO. It is Pactum Commissorium. It is a void If after trial the court finds that the matters set forth in
agreement. the complaint are true, it shall render a judgment
containing the following matters:
Parties cannot stipulate that if there is non-payment of
the mortgage then the mortgaged property will 1) Ascertainment of the amount due to the
automatically be owned by the mortgagee. That plaintiff upon the mortgage debt or obligation,
cannot be done. Kaya dapat isell mo siya sa public including interest and other charges as
auction, either judicially or extrajudicially. approved by the court, and costs;
a. Judicial foreclosure (Rule 68) 2) The sum so found due
3) Order the amount found due to be paid to the

Rule 68, Section 1. Complaint in action for
court or to the judgment obligee within a
foreclosure. – In an action for the foreclosure of a
period of not less than ninety (90) days nor
mortgage or other encumbrance upon real estate, the
more than one hundred twenty (120) days
complaint shall set forth the date and due execution of
from the entry of judgment, and
the mortgage; its assignments, if any; the names and
residences of the mortgagor and the mortgagee; a
4) admonition that in default of such payment
description of the mortgaged property; a statement of
the property shall be sold at public auction to
the date of the note or other documentary evidence of
satisfy the judgment.
the obligation secured by the mortgage, the amount
claimed to be unpaid thereon; and the names and
Note: This judgment is the first stage of judicial
residences of all persons having or claiming an interest
foreclosure, and this judgment is appealable (record
in the property subordinate in right to that of the
on appeal).
holder of the mortgage, all of whom shall be made
defendants in the action.
EQUITY OF REDEMPTION
Jurisdiction of judicial foreclosure It is the period within which the mortgagor may start
exercising his equity of redemption, which is the right
Judicial foreclosure is a real action. Thus, jurisdiction to extinguish the mortgage and retain ownership of
depends on the assessed value of real property. the property by paying the debt. The payment may be
made even after the foreclosure sale provided it is
● Up to 20K (or up to 50K in the NCR) — MTC made before the sale is confirmed by court (GSIS vs.
CFI)
● Above 20K (or above 50K if in the NCR) —
RTC.
Note: Equity of redemption is mandatory in character.
It must be stated in the judgment because that is a
● RA 11576: Up to 400K — MTC
substantive right. It cannot be omitted in a judicial
foreclosure.
Judge Gito: Tandaan niyo, ang judicial foreclosure ay
real action. Pero hindi lahat ng action pertaining to

RIGHT OF REDEMPTION There should be motion, but the motion is ex-parte

(Govt. of PI vs. De Las Lajigas) The motion to sell the
It is a right granted to a mortgagor to reacquire the property to public auction is a non litigious motion. It
property even after the confirmation of the sale and does not require notice and hearing.
the registration of the certificate of sale.
What should the mortgagee do, after the sale of
There is no right of redemption in a judicial foreclosure the mortgage property is made?
of mortgage under Rule 68. This right exists only in an
extrajudicial foreclosure where there is always a right He should file a motion for confirmation of sale (Sec.
of redemption within 1 year from date of sale (meaning 3. Rule 68).
date of registration of sale). (Sec.6, Act 3135)
Here the motion requires notice and hearing (Tiglao vs.
General rule: No right of redemption in judicial Botones). The motion for confirmation of sale is a
foreclosure litigious motion. If the mortgagor was not notified of
the hearing, the subsequent confirmation of the sale is
Exception: there is right of redemption in a vitiated and consequently it is as if no confirmation
foreclosure sale if the foreclosure is in favor of banks ever took place. Being so, the mortgagor may still
as mortgagees, whether the foreclosure be judicial or insist on his right to exercise his equity of redemption
extrajudicial. (Sec. 47, GBA) Hence, if the mortgagee even after the alleged confirmation which is in fact of
is a bank, the mortgagor may exercise the right of no effect.
redemption even if the foreclosure is made judicially
under Rule 68. The confirmation of sale shall operate to divest the
rights in the property of all the parties to action and
vest the rights in the purchaser, subject to the rights of
EQUITY OF RIGHT OF
redemption under the law (Sec. 3, Rule 68).
REDEMPTION REDEMPTION
Order of confirmation is appealable.
Judicial foreclosure Extrajudicial foreclosure
It is the right of the It is the right of the What is the effect of finality of the confirmation of
defendant-mortgagor to debtor, his successor-in the sale?
extinguish the mortgage –interests or his
and retain the judicial-creditor to Upon the finality of the order of confirmation or upon
ownership of the redeem the property the expiration of the period of redemption when
property provided he within the period of allowed by law, the purchaser at the auction sale or
pays the judgment debt one-year from the last redemptioner, if any, shall be entitled to the
within the period of not registration of the possession of the property unless a third party is
less than 90 days but certificate of sale. actually holding the same adversely to the judgment
not more than 120 days obligor.
from entry of judgment.
And it can even be done Take note that the writ of possession shall be issued
after the foreclosure sale upon motion, thus, the said purchaser or last
but not before the redemptioner may secure a writ of possession, upon
confirmation of the sale. motion, from the court which ordered the foreclosure
(Sec. 3, Rule 68).
Governed by rule 68. Governed by Secs. 29
and 31, Rule 39 The motion is ex-parte. There is no need for the
purchaser to notify the parties of the proceedings.
The redemption price is The redemption price is (Carlos vs. CA).
the judgment debt. That the property sold at
is all you have to pay. execution (which is the A pending suit for annulment of the mortgage or
purchaser‘s price), annulment of the foreclosure proceedings does not
defeat the right of the purchaser to a writ of
possession to which he is entitled as a matter of right.
What is the effect if the mortgagor failed to pay the An injunction to prohibit the issuance or enforcement
sum due within the period given? of the writ is entirely out of place. (Carpo v. Chua)
The court, upon motion, shall order the property to be Disposition of the proceeds of sale
sold in the manner and under the provisions of Rule
39 and other regulations governing sales of real estate They shall, after deducting the costs of the sale, be
under execution (Sec. 3, Rule 57). paid to the person foreclosing the mortgage, and
when there shall be any balance or residue, after

paying off the mortgage debt due, the same shall be

paid to junior encumbrancers in the order of their Section 47. Foreclosure of Real Estate Mortgage. - In
priority, to be ascertained by the court, or if there be the event of foreclosure, whether judicially or
no such encumbrancers or there be a balance or extra-judicially, of any mortgage on real estate which is
residue after payment to them, then to the mortgagor security for any loan or other credit accommodation
or his duly authorized agent, or to person entitled to it granted, the mortgagor or debtor whose real property
(Sec. 4, Rule 68). has been sold for the full or partial payment of his
obligation shall have the right within one year after the
Is the mortgagee entitled to deficiency?
sale of the real estate, to redeem the property by
YES. If there be a balance due to the plaintiff after paying the amount due under the mortgage deed, with
applying the proceeds of the sale, the court, upon interest thereon at rate specified in the mortgage, and
motion, shall render judgment against the defendant all the costs and expenses incurred by the bank or
for any such balance, Execution may issue institution from the sale and custody of said property
immediately if the balance is all due at the time of the less the income derived therefrom. However, the
rendition of the judgment, If not due, the plaintiff shall purchaser at the auction sale concerned whether in a
be entitled to execution at such time as the remaining judicial or extra-judicial foreclosure shall have the
balance shall become due and such due date shall be right to enter upon and take possession of such
stated in the judgment (Sec. 6, Rule 68). property immediately after the date of the
confirmation of the auction sale and administer the
Note that the deficiency judgment, is, in itself, a same in accordance with law. Any petition in court to
judgment, hence, also appealable, enjoin or restrain the conduct of foreclosure
proceedings instituted pursuant to this provision shall
Is there still a need to file a separate case to be given due course only upon the filing by the
recover the deficiency? petitioner of a bond in an amount fixed by the court
conditioned that he will pay all the damages which the
NO NEED. A motion for the recovery of deficiency can bank may suffer by the enjoining or the restraint of the
be filed in the same court where judicial foreclosure foreclosure proceeding.
was filed (Sec. 6, Rule 68).
Notwithstanding Act 3135, juridical persons whose
Instead of filing a case, you just file a motion in that property is being sold pursuant to an extrajudicial
same case where you filed the petition for judicial foreclosure, shall have the right to redeem the property
foreclosure of REM. in accordance with this provision until, but not after,
the registration of the certificate of foreclosure sale
b. Extrajudicial foreclosure (Act No. 3135, as
with the applicable Register of Deeds which in no case
amended)
shall be more than three (3) months after foreclosure,
whichever is earlier. Owners of property that has been
Section 6. In all cases in which an extrajudicial sale is sold in a foreclosure sale prior to the effectivity of this
made under the special power hereinbefore referred to, Act shall retain their redemption rights until their
the debtor, his successors in interest or any judicial expiration.
creditor or judgment creditor of said debtor, or any
person having a lien on the property subsequent to the
■ The General Banking Law of 2000,
mortgage or deed of trust under which the property is
distinguishes between an individual debtor
sold, may redeem the same at any time within the term
from a corporate debtor of banking
of one year from and after the date of the sale; and
institutions, with respect to the period of
such redemption shall be governed by the provisions
redemption.
of sections four hundred and sixty-four to four
hundred and sixty-six, inclusive, of the Code of Civil ■ Under Section 47 of the Law, in the event of
Procedure, in so far as these are not inconsistent with foreclosure of any mortgage on real estate
the provisions of this Act. which is security for any loan or other credit
accommodation granted:
If the property is foreclosed extra judicially, then the
seller may redeem the property within one (1) year ○ The individual mortgator or debtor
from the registration of the certificate of sale. whose real property has been sold for
the full or partial payment to his
Remember that the commencement period is not from obligation, whether judicially or
the sale, it is from the registration of the certificate of extra-judicially; and
the sale.
○ The corporate mortgator or debtor
c. The General Banking Law of 2000 (Sec. 47, R.A. whose real property has been sold for
No. 8791) the full or partial payment to his
obligation, by virtue of a judicial

foreclosure; appeal)
shall have the right within one (1) year after the Instances where co-owner may not demand
sale of the real estate, to redeem the property partition
by paying the amount due under the
mortgage deed, with interest thereon at the 1) There is agreement not to divide for a period
rate specified in the mortgage, and all the of time, not exceeding ten (10) years (Art.
costs and expenses incurred by the bank or 494).
institution from the sale and custody of said
property less the income derived therefrom. 2) The partition is prohibited by the donor for a
period not exceeding 20 years (Art. 494 and
■ Notwithstanding Act 3135, judicial persons 1083 CC)
whose property is being sold pursuant to an
extrajudicial foreclosure, shall have the right to 3) When partition is prohibited by law (494, CC)
redeem the property in accordance with this
provision until, but not after, the registration of 4) When property is not subject to a physical
the certificate of foreclosure sale with the division (495, CC)
applicable Register of Deeds which in no case
shall be more than three (3) months after 5) When condition is imposed but not yet fulfilled
foreclosure, whichever is earlier. (1084, CC)
Judge Gito: Here, co-ownership nga siya, pero hindi

SUMMARY OF REDEMPTION PERIODS: ka naman pwede magdemand for partition. Kaya ang
sabi ko sa inyo, yung first stage ay determination of
● Mortgagor is a juridical person co-ownership and the right to partition. Because even
(extrajudicial foreclosure) → 3 months if co-ownership is established, but according to law or
agreement of the parties, the same should not be
● Mortgagee is a bank (judicial or
partitioned for a certain period of time, it cannot be
extrajudicial foreclosure) → 1 year
partitioned.
● Judicial foreclosure → equity redemption
Prescription of action for partition
- not less than 90 days but not more than
120 days from entry of judgment
It does not prescribe. Thus, a co-owner may file the
● Extrajudicial foreclosure → right of action for partition anytime.
redemption - 1 year
While the action to demand partition of a co-owned
property does not prescribe, a co-owner may acquire
8. Partition (Rule 69) ownership thereof by prescription where there exists a
clear repudiation of the co-ownership, and the
Partition is defined as the separation, division and co-owners are apprised of the claim of adverse and
assignment of a thing held in common among those to exclusive ownership. (Heirs of Restar vs. Heirs of
whom it may belong (Art. 1079, CC). Cichon)
Partition presupposes the existence of a co-ownership Which court has jurisdiction?

over a property between two or more persons. Thus, a
division of property cannot be ordered by the court Partition is a real action. Thus, jurisdiction depends on
unless the existence of co-ownership is first the assessed value of real property.
established (Co Giuk Lun vs. Co)
● Up to 20K (or up to 50K in the NCR) — MTC
STAGES OF PARTITION ● Above 20K (or above 50K in the NCR) — RTC
● RA 11576: Up to 400K — MTC
1) First stage → Determination whether
co-ownership exists. This phase may end up What has to be alleged in the complaint?
with the declaration that plaintiff is not entitled
to partition. 1. The nature and extent of his title;
2) Second stage → the partition itself. Partition 2. Adequate description of the real estate of
shall be done by the court in case the parties which partition is demanded;
could not agree among themselves.
3. Joining as defendants all other persons
Both phases/stages are subject to appeal (record on interested in the property (Sec. 1, Rule 69).

What is the procedure after the court declared that properties.

co-ownership exists and that the plaintiff has the
right to partition the property? Can you partition personal property?
1. Court will direct the parties to partition the YES. Under Sec 13, Rule 69 – The provisions of this
property among themselves (Sec. 2, Rule 69). Rule shall apply to partitions of estates composed of
personal property, or of both real and personal
■ So, the court will give the parties the property, in so far as the same may be applicable.ǁ It
opportunity to divide the property can also be sold to one of the co-owners and then the
among themselves. If the agree, they co-owner who buys shall pay the other co-owners
would submit to the court what we their due share.
call “order of partition”.
9. Forcible entry and unlawful detainer
2. If they do not agree, the parties shall appoint
three (3) independent commissioners to make a. Differentiated from accion publiciana and
the partition (Sec. 2, Rule 69). accion reivindicatoria
3. Commissioners will submit their full and There are three kinds of actions available to recover
accurate report. The Court upon receipt of the possession of real property:
report, shall through its clerk of court
furnished the parties of the report. They are 1) Accion interdictal
allowed to comment or register their objection 2) Accion publiciana
to the report within (10) days from the receipt 3) Accion reinvindicatoria
thereof (Sec. 7, Rule 69)
ACCION INTERDICTAL
What should be the action of the court after the
filing of the report? It is an action for ejectment to recover possession,
whether for unlawful detainer or forcible entry. It refers
1) Court may, upon hearing, accept the report to the recovery of physical or actual possession only
and render judgment in accordance therewith; through a special civil action.
2) For cause shown, recommit the same to the In forcible entry, one is deprived of physical
commissioners for further report of facts; possession of real property by means of force,
intimidation, strategy, threats, or stealth whereas in
3) Or set aside the report and appoint new
unlawful detainer, one illegally withholds possession
commissioners;
after the expiration or termination of his right to hold
4) Or accept the report in part and reject it in possession under any contract, express or implied.
The two are distinguished from each other in that in
part; and may make such order and render
forcible entry, the possession of the defendant is
such judgment as shall effectuate a fair and
illegal from the beginning, and that the issue is which
just partition of the real estate, or of its value,
party has prior de facto possession while in unlawful
if assigned or sold as above provided,
detainer, possession of the defendant is originally
between the several owners thereof (Sec. 7,
legal but became illegal due to the expiration or
Rule 69)
termination of the right to possess.
What is the remedy of a co-owner who is not paid
The jurisdiction of these two actions, which are
his due share by the co-owner who bought the
summary in nature, lies in the proper municipal trial
property?
court or metropolitan trial court. Both actions must be
The remedy is a motion for execution of the judgment. brought within one year from the date of actual entry
on the land, in case of forcible entry, and from the
The writ of execution is issued. Can the sheriff levy date of last demand, in case of unlawful detainer
on my property?
ACCION PUBLICIANA
NO. Because the judgment will have to executed in
This action proposes to recover the right to possess
accordance with Sec 9 of Rule 39. That is a money
and is a plenary action in an ordinary civil proceeding.
judgment. You cannot immediately levy. You will have
to demand payment from the purchaser co-owner. If
Accion publiciana is the plenary action to recover the
the purchaser cannot pay, then levy on personal
right of possession which should be brought in the
properties, and if not sufficient, then go after real
proper regional trial court when dispossession has
lasted for more than one (1) year. It is an ordinary civil

proceeding to determine the better right of possession Accion reivindicatoria or accion de reivindicacion is,
of realty independently of title. In other words, if at the thus, an action whereby the plaintiff alleges ownership
time of the filing of the complaint more than one year over a parcel of land and seeks recovery of its full
had elapsed since defendant had turned plaintiff out possession. It is a suit to recover possession of a
of possession or defendant's possession had become parcel of land as an element of ownership. The
illegal, the action will be, not one of the forcible entry judgment in such a case determines the ownership of
or illegal detainer, but an accion publiciana. the property and awards the possession of the
property to the lawful owner. It is different from accion
ACCION REIVINDICATORIA interdictal or accion publiciana where plaintiff merely
alleges proof of a better right to possess without claim
It is an action to recover ownership also brought in the of title.
proper regional trial court in an ordinary civil
proceeding.
DISTINCTIONS BETWEEN
THE THREE KINDS OF POSSESSORY ACTIONS
Accion interdictal Accion publiciana Accion reivindicatoria
refers to the recovery of physical or proposes to recover the right to seeks the recovery of ownership as
actual possession only (through a possess and is a plenary action in well as possession of realty.
special civil action either for forcible an ordinary civil proceeding.
entry or unlawful detainer.)
MTC, regardless of the value of real MTC or RTC, depending on the MTC or RTC, depending on the
property and amount of damages or assessed value of the real property. value of the real property.
unpaid rentals.
Must be brought within one year If at the time of the filing of the
from the date of actual entry on the complaint, more than one year had
land, in case of forcible entry, and elapsed since defendant had turned
from the date of last demand, in plaintiff out of possession or
case of unlawful detainer. The issue defendant’s possession had
in said cases is the right to physical become illegal, the action will be,
possession. not one of the forcible entry or illegal
detainer, but an accion publiciana.
If the dispossession is not alleged to take place by any of the means

provided by Section 1, Rule 70, or, if the dispossession allegedly took place
by any of such means but the action is not brought within one year from
deprivation of possession, the action is properly a plenary action of accion
publiciana or accion de reivindicacion.
The basis is prior physical The basis is real right of possession, The basis is ownership, which
possession, which prescribes in one which prescribes in ten (10) years. prescribes in ten (10) years if
(1) year. possession is in good faith or in
thirty (30) years if possession is in
bad faith.
b. Rule 70 Possession of the defendant is unlawful from

the very beginning.
What are the two causes of actions under Rule 70?
When a person is deprived of the possession
1) FORCIBLE ENTRY – an action to recover of any land or building by force, intimidation,
possession of a property from the defendant threat, strategy, or stealth, the cause of action
whose occupation thereof is illegal from the is forcible entry.
beginning since he acquired possession by
force, intimidation, threat,strategy or stealth. 2) UNLAWFUL DETAINER – an action for
recovery of possession from the defendant

whose possession of the property was lawful civil action of recovery of possession.
from the beginning, but became illegal when
he continued his possession despite the What is the meaning of prior physical possession
termination of his right thereunder (Sarmieta in forcible entry cases?
vs. Manalite Homeowners Association)
While prior physical possession is an indispensable
Possession of defendant is legal from the requirement in forcible entry cases, emphasis should
beginning, which became illegal after the be made however that possession can be acquired
termination of the legal right of the defendant not only by material occupation, but also by the fact
to possess. that a thing is subject to the action of one's will or by
the proper acts and legal formalities established for
When a lessor, vendor, vendee, or other acquiring such right.
person against whom the possession of any
land or building is unlawfully withheld after the Possession can be acquired by juridical acts. These
expiration or termination of the right to hold are acts to which the law gives the force of acts of
possession, by virtue of any contract, express possession.
or implied, the cause of action is unlawful
detainer. Juridical acts were sufficient to establish the plaintiff's
prior possession of the subject property. (Mangaser
FORCIBLE ENTRY vs. Ugay)
Is it required for forcible entry to prosper that the

What should be alleged in forcible entry?
plaintiff must be in actual prior physical
possession?
1. Plaintiff had prior physical possession.
NO. What is required is that you are juridically
2. That defendant deprived plaintiff of his
possessing the property.
possession by means of force, intimidation,
threat, strategy or stealth (FITSS).
For purposes of forcible entry, in determining prior
physical possession, the law does not require actual
○ When the entry is by stealth, the
physical possession. The law only requires juridical
one-year period to file action should
possession. So long as you possess the property in a
be reckoned from the discovery of
legal manner or juridically, then that is compliance
entry.
with the requirement of prior physical possession.
3. There must be showing that the complaint
was filed within 1 year from the time of UNLAWFUL DETAINER
disposition. If the complaint is filed beyond 1
year from the time of disposition, then the What should be alleged in unlawful detainer?
cause of action is not anymore forcible entry,
but accion publiciana or mere recovery of 1. Possession of the property by the defendant
possession. was by contract with or by tolerance of the
plaintiff. In an unlawful detainer, the
Prior physical possession is the primary possession of the defendant is lawful from the
consideration in a forcible entry case. (If you don’t beginning.
allege in your complaint for forcible entry prior physical
possession, ididismiss na ng court yan for lack of ○ When possession is by tolerance, it
jurisdiction. You must allege that the plaintiff was in prior becomes illegal upon demand to
physical possession.) A party who can prove prior vacate by the owner and the
physical possession can recover such possession possessor by tolerance refuses to
even against the owner himself (Antazo vs. Doblada) comply with such demand.
Judge Gito: If you become a lawyer and you are ○ The rule on tolerance does not apply
confronted with a case wherein you have to evict either in a case where there was forcible
from a land or building, you are given two choices. Are entry at the start. Once a forcible
you going to file an accion interdictal or accion entry, always a forcible entry. And a
publiciana? If you want for an immediate possession of forcible entry cannot be converted
real property, if it would fall either under forcible entry into an unlawful detainer.
or unlawful detainer, then file for forcible entry/unlawful
detainer. Because the case will be faster than ordinary 2. Such possession became illegal upon notice
by the plaintiff to the defendant of the

termination of the latter’s possession. What is the form of demand?
3. Defendant remained in possession of the Written notice of such demand upon the person found
property and deprived the plaintiff enjoyment on the premises, or by posting such notice on the
thereof. premises if no person be found thereon (Sec. 2, Rule
70)
4. Within one (1) year from the last demand of
the defendant to vacate the property, the It can be a verbal demand.
plaintiff instituted the complaint for ejectment.
If there is no showing that the complaint was When is the right time to commence action in
filed within one year from the time the cause lease contract?
of action arose, then the court has no
jurisdiction and the case may be dismissed by When the lessee fails to comply therewith after fifteen
the MTC. (15) days in the case of land or five (5) days in the
case of buildings.
Therefore, in unlawful detainer, what makes it unlawful
for the defendant to possess the real property is the “Tacita reconduccion”
demand to vacate.
This means automatic renewal of the contract of
What is the effect if there is failure to alleged facts lease. When at the end of the lease contract, the
necessary for forcible entry and unlawful detainer? lessee should continue enjoying the property leased
for 15 days with the consent of the lessor, and no
The complaint will be dismissed because these are notice to the contrary has been given, it is understood
jurisdictional facts. The jurisdictional facts must that there is an implied new lease contract (Art. 1670,
appear on the face of the complaint. When the CC).
complaint fails to aver facts constitutive of forcible
entry or unlawful detainer, as where it does not state PROCEDURE FOR FORCIBLE ENTRY AND
how entry was effected or how and when UNLAWFUL DETAINER
dispossession started, the remedy should either be an
accion publiciana or accion reinvindicatoria.
All actions for forcible entry and unlawful detainer,
UNLAWFUL DETAINER IN LEASE CONTRACT irrespective of the amount of damages or unpaid
CASES rentals sought to be recovered, shall be governed by
the summary procedure hereunder provided (Sec. 3,
Unless otherwise stipulated, such action by the lessor Rule 70).
shall be commenced only after demand to pay or
comply with the conditions of the lease and to The only pleadings allowed to be filed are the
vacate is made upon the lessee, or by serving complaint, compulsory counterclaim and cross-claim
written notice of such demand upon the person found pleaded in the answer, and the answers thereto. All
on the premises, or by posting such notice on the pleadings shall be verified. (Sec. 4, Rule 70)
premises if no person be found thereon, and the
lessee fails to comply therewith after fifteen (15) days Can the court motu proprio dismiss the complaint?
in the case of land or five (5) days in the case of
buildings (Sec. 2, Rule 70) YES. The court may, from an examination of the
allegations in the complaint and such evidence as
Judge Gito: It can be assumed from Sec. 2, Rule 70, may be attached thereto, dismiss the case outright on
before there can be a cause of action for unlawful any of the grounds for the dismissal of a civil action
detainer in lease contract cases, there must be two which are apparent therein. If no ground for dismissal
demands. Demand to pay or comply with the is found, it shall forthwith issue summons (Sec. 5, Rule
conditions of the lease and demand to vacate. Pag isa 5)
lang sa kanila, wala pang unlawful detainer. Dapat
dalawa magkasama. Judge Gito: Under the Rules on Summary Procedure,
kahit na anong grounds which is apparent to the
Demand is to “pay unpaid rental or to vacate”. Will complaint, the court can motu proprio dismiss the
this make out a case of unlawful detainer? complaint. For example, improper venue, apparent in
the complaint, the court can motu proprio dismiss the
No. It should be demand to pay and vacate. A complaint (kahit na sa ordinary civil action, hindi siya
demand in the alternative to pay the increased rental ground for dismissal kasi need i-allege as affirmative
or otherwise vacate the land is not a demand that will defense)
give rise to an unlawful detainer case (Penas vs. CA)

Answer to Complaint Immediate execution
Within ten (10) days from service of summons, the If judgment is rendered against the defendant,
defendant shall file his answer to the complaint and execution shall issue immediately upon motion.
serve a copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be Kahit mag appeal pa, basta nanalo ang plaintiff,
deemed waived, except lack of jurisdiction over the pwede mo na ipa-execute ang judgment. Para
subject matter. makuha mo na yung possession over the real
property.
Under unlawful detainer and forcible entry, there are
two grounds by which you can file for a motion to How to stay the execution of judgment
dismiss: (1) lack of jurisdiction over subject matter;
and (2) failure to undergo barangay conciliation File an appeal within the reglementary period (15 days)
proceedings. and post a sufficient supersedeas bond and mag
deposit sa appellate court ng rent from time to time.
Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. Appeal is perfected and the defendant files a sufficient
The answer to counterclaims or cross-claims shall be supersedeas bond, approved by the Municipal Trial
served and filed within ten (10) days from service of Court and executed in favor of the plaintiff to pay the
the answer in which they are pleaded (Sec. 6, Rule rents, damages, and costs accruing down to the time
70). of the judgment appealed from.
Is there default in ejectment cases? And during the pendency of the appeal, he deposits
with the appellate court the amount of rent due from
No. Should the defendant fail to answer the complaint time to time under the contract, if any, as determined
within the period above provided, the court, motu by the judgment of the Municipal Trial Court.
proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in In the absence of a contract, he shall deposit with the
the complaint and limited to what is prayed for therein Regional Trial Court the reasonable value of the use
(Sec. 7, Rule 70). and occupation of the premises for the preceding
month or period at the rate determined by the
What should the court do in case tenancy judgment of the lower court on or before the tenth day
relationship is alleged in the answer? of each succeeding month or period (Sec. 19, Rule 70)
The court will not automatically dismiss the case. Decision of the RTC is executory
Where tenancy is raised as a defense, the court must
conduct a hearing on the matter to determine the The judgment of the Regional Trial Court against the
veracity of the allegations of tenancy. Only after defendant shall be immediately executory, without
hearing, and the court determines that there is a prejudice to a further appeal that may be taken
tenancy relationship between plaintiff and defendant, therefrom (Sec. 21, Rule 70).
then the court will dismiss the case on the ground that
it has no jurisdiction. Judge Gito: how can you stay the judgment of the
RTC against the defendant? File a petition for TRO or
PROCEDURE IN THE MTC writ of preliminary injunction. Kung wala, the judgment
of the RTC against the defendant is immediately
1) Filing of the complaint executory.
2) Filing of answers within 10 days from 10. Contempt (Rule 71)
summons
DIRECT CONTEMPT
3) Preliminary conference. It can be likened to a
pre-trial
A person guilty of misbehavior in the presence of or so
4) After receipt of preliminary conference order, near a court as to obstruct or interrupt the
parties shall file their position papers within 10 proceedings before the same, including disrespect
days toward the court, offensive personalities toward
others, or refusal to be sworn or to answer as a
5) The court shall render a judgment within 30 witness, or to subscribe an affidavit or deposition
days after the case shall have been submitted when lawfully required to do so, may be summarily
for decision. adjudged in contempt by such court (Sec. I, Rule 71)

By order of the court, or a formal charge by the

Penalty for direct contempt offended court. This is in the nature of a show cause
order.
1) a fine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or By verified petition with full requirements of initiatory
both, if it be a Regional Trial Court or a court pleading for civil action. It is treated as a separate
of equivalent or higher rank, or case to be docketed separately (Sec. 4, Rule 71).
2) by a fine not exceeding two hundred pesos or Where should the charge be filed?
imprisonment not exceeding one (1) day, or
both, if it be a lower court (Sec. 1, Rule 71). ■ Where the charge for indirect contempt has
been committed against a Regional Trial Court
Remedy of the person adjudged of direct contempt or a court of equivalent or higher rank, or
against an officer appointed by it, the charge
The person adjudged in direct contempt by any court may be filed with such court;
may not appeal therefrom, but may avail himself of the
remedies of certiorari or prohibition. The execution ■ Where such contempt has been committed
of the judgment shall be suspended pending against a lower court, the charge may be filed
resolution of such petition, provided such person files with the Regional Trial Court of the place in
a bond fixed by the court which rendered the which the lower court is sitting.
judgment and conditioned that he will abide by and
perform the judgment should the petition be decided ■ Proceedings may also be instituted in such
against him. (Sec. 2, Rule 71). lower court subject to appeal to the Regional
Trial Court of such place in the same manner
ACTS CONSTITUTING INDIRECT CONTEMPT as provided in Section 2 of this Rule (Sec. 5,
Rule 71).
■ Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
■ Disobedience of or resistance to a lawful writ,

process, order, or judgment of a court;
■ Any abuse of or any unlawful interference with

the processes or proceedings of a court not
constituting direct contempt under Section 1
of this Rule;
■ Any improper conduct tending, directly or

indirectly, to impede, obstruct, or degrade the
administration of justice;
■ Assuming to be an attorney or an officer of a

court, and acting as such without authority;
■ Failure to obey a subpoena duly served;
■ The rescue, or attempted rescue, of a person

or property in the custody of an officer by
virtue of an order or process of a court held by
him (Sec. 3, Rule 71).
Done in the presence of the court (pag direct contempt)

and the court may cite that person for direct contempt.
Pag indirect contempt, it can be commenced by the court
through the issuance of an order emanating from the
court.
How is indirect contempt commenced?

proceedings are initiated neither in the decedent’s

V. SPECIAL PROCEEDINGS AND SPECIAL
residence nor where the decedent’s estate is located
WRITS is not jurisdictional and may be waived if not raised.
(Uriarte v. Court of First Instance)
A. Settlement of estate of deceased persons
1. Venue and process (Rule 73) Court first taking cognizance of settlement of estate of
a decedent shall exercise jurisdiction TO THE
WHICH COURT HAS JURISDICTION EXCLUSION of all other courts. This is subject to
preferential jurisdiction of court where TESTATE
proceedings are filed.
If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his
Cases where two proceedings are filed, one
will shall be proved, or letters of administration
intestate and the other is testate
granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the
1) Robertas v. Leonidas — intestate in CFI
time of his death, and if he is an inhabitant of a foreign
Manila Branch 20; testate (reprobate) in CFI
country, the Court of First Instance of any province in
Manila Branch 38.
which he had estate. The court first taking cognizance
of the settlement of the estate of a decedent, shall
Here, the SC gave priority to Branch 38. The
exercise jurisdiction to the exclusion of all other
probate of the will is mandatory. It is
courts.
anomalous that the estate of a person who
died testate should be settled in an intestate
The determination of which court exercises jurisdiction
proceeding. Therefore, the intestate case
over matters of probate depends upon the GROSS
should be consolidated with the testate
VALUE of the estate of the decedent.
proceeding and the judge assigned to the
testate proceeding should continue hearing
1. RA 7691 — MTC, MeTC and MCTC shall
the two cases.
exercise exclusive original jurisdiction over
probate proceedings, testate and intestate,
2) Uriarte v. CFI of Negros Occidental —
where the value of the estate does not exceed
intestate in Negros court, testate in Manila
P300,000 (outside Metro Manila) or where
court.
such estate does not exceed P400,000 (in
Metro Manila).
Here, the SC gave priority to the Negros court.
Testate proceedings for the settlement of the
2. RA 11576 — With respect to all matters of
estate of a deceased person take precedence
probate, both testate and intestate, the law
over intestate proceedings for the same
increased the jurisdictional amount cognizable
purpose. Thus, if in the course of intestate
by the RTC to P2,000,000.
proceedings pending before a court of first
[RA 11576 took effect last August 21, 2021; bar coverage is only
instance it is found that the decedent had left
until June 30, 2021] a last will, proceedings for the probate of the
latter should replace the intestate proceedings
VENUE IN JUDICIAL SETTLEMENT OF ESTATES even if at that stage an administrator had
already been appointed, the latter being
required to render final account and turn over
The residence of the decedent at the time of his death the estate in his possession to the executor
is determinative of the venue of the proceeding. subsequently appointed. This, however, is
understood to be without prejudice that
1) If residing in the Philippines at time of death, should the alleged last will be rejected or is
whether citizen or not — court of PLACE OF disapproved, the proceeding shall continue as
RESIDENCE AT THE TIME OF DEATH. an intestacy. This is a clear indication that
proceedings for the probate of a will enjoy
2) If residing in a foreign country — court of ANY priority over intestate proceedings.
PLACE WHERE HE HAD ESTATE.
3) Cuenco v. CA — intestate in Cebu court,
The question of residence is determinative only of the testate in QC court.
venue and does not affect the jurisdiction of the court.
Residence means his personal, actual or physical Here, Here, the SC gave priority to the QC
habitation, his actual residence or place of abode and court. Cebu court, upon learning that petition
not his permanent legal residence or domicile. for probate has been presented in another
court, may DECLINE TO TAKE COGNIZANCE
Venue is waivable. Thus, the fact that the estate of and HOLD IN ABEYANCE petition before it,

and instead DEFER to second court. If the will Solivio v. CA

is admitted to probate, it will definitely
DECLINE to take cognizance. The better practice, however, for the heir who has not
received his share, is to demand his share through a
The difference between Uriarte and Cuenco rulings is proper motion in the same probate or administration
that in Uriarte, there was showing that petitioner in proceedings, or for reopening of the probate or
probate proceeding knew before filing of petition in administrative proceedings if it had already been
Manila that there was already intestate proceeding in closed, and not through an independent action, which
Negros. would be tried by another court or Judge which may
thus reverse a decision or order of the probate or
EXTENT OF JURISDICTION OF PROBATE COURT intestate court already final and executed and
re-shuffle properties long ago distributed and
The main function of a probate court is to settle and disposed of.
liquidate the estates of deceased person either Heirs of Ypon v. Ricafrente
summarily or through the process of administration.
The rule that the determination of a decedent’s lawful
The probate court exercises limited jurisdiction: heirs should be made in the corresponding special
proceeding precludes the RTC, in an ordinary action
a) Probate court cannot adjudicate or determine for cancellation of title and reconveyance, from
title to properties claimed to be a part of the granting the same. By way of exception, the need to
estate and equally claimed as belonging to institute a separate special proceeding for the
outside parties. determination of heirship may be dispensed with for
the sake of practicality, as when the parties in the civil
b) It can only determine whether or not they case had voluntarily submitted the issue to the trial
should be included in the inventory or list of court and already presented their evidence regarding
properties to be administered by the the issue of heirship, and the RTC had consequently
administrator. rendered judgment thereon, or when a special
proceeding had been instituted but had been finally
c) Probate court can only pass upon questions
closed and terminated, and hence, cannot be
of title provisionally for the purpose of
reopened.
determining whether a certain property should
or should not be included in the inventory. Romero v. CA
d) Parties have to resort to an ordinary action for It is within the jurisdiction of the probate court (1) to
final determination of conflicting claims of title. approve the sale of properties of a deceased person
by his prospective heirs before final adjudication; (2) to
General rule: the jurisdiction of the probate court or determine who are the heirs of the decedent; (3) the
an intestate court does not extend to the recognition of a natural child; (4) the status of a
determination of questions of ownership that arise woman claiming to be the legal wife of the decedent;
during the proceedings. (5) the legality of disinheritance of an heir by the
testator; (6) and to pass upon the validity of a waiver
Exceptions: probate court is competent to decide of hereditary rights.
question of ownership when—
Joaquino v. Reyes
1) the interested parties are all heirs, OR
Matters relating to the rights of filiation and heirship
2) the question is one of collation or must be ventilated in the proper probate court in a
advancement, OR special proceeding instituted precisely for the purpose
of determining such rights.
3) the parties consent to the assumption of
jurisdiction by the probate court AND Agapay v. Palang
4) the rights of third parties are not impaired. Questions as to who are the heirs of the decedent,
proof of filiation of illegitimate children and the
POWERS AND DUTIES OF PROBATE COURT determination of the estate of the latter and claims
thereto should be ventilated in the proper probate
1) Determine the heirs court or in a special proceeding instituted for the
purpose and cannot be adjudicated in the instant
2) Distribute the estate ordinary civil action which is for recovery of ownership
and possession.

Gabatan v. CA office of the register of deeds.
There appears to be only one parcel of land being The parties to an extrajudicial settlement, whether
claimed by the contending parties as their inheritance by public instrument or by stipulation in a pending
from Juan Gabatan. It would be more practical to action for partition, or the sole heir who adjudicates
dispense with a separate special proceeding for the the entire estate to himself by means of an affidavit
determination of the status of respondent as the sole shall file, simultaneously with and as a condition
heir of Juan Gabatan, specially in light of the fact that precedent to the filing of the public instrument, or
the parties to Civil Case No. 89-092, had voluntarily stipulation in the action for partition, or of the affidavit
submitted the issue to the RTC and already presented in the office of the register of deeds, a bond with the
their evidence regarding the issue of heirship in these said register of deeds, in an amount equivalent to the
proceeding. value of the personal property involved as certified to
under oath by the parties concerned and conditioned
Capablanca v. Heirs of Pedro upon the payment of any just claim that may be filed
under section 4 of this rule.
Another case where there was no need for a special
proceeding for the determination of heirship – When a
The fact of the extrajudicial settlement or
sole heir filed a suit to cancel title in the name of the
administration shall be published in a newspaper of
adverse party over land belonging to her uncle, the
general circulation in the manner provided in the next
Supreme Court held that no separate judicial
succeeding section; but no extrajudicial settlement
declaration of heirship is necessary for a sole heir to
shall be binding upon any person who has not
assert his or her right to the property of the deceased.
participated therein or had no notice thereof.
Agtarap v. Agtarap
REQUISITES OF EXTRAJUDICIAL SETTLEMENT
The jurisdiction of the probate court extends to
matters incidental or collateral to the settlement and a) Decedent dies intestate
distribution of the estate, such as the determination of
the status of each heir and whether the property in the b) No outstanding debts at time of settlement
inventory is conjugal or exclusive property of the
deceased spouse. ■ It shall be presumed that the
decedent left no debts if no creditor
files a petition for letters of
2. Summary settlement of estates (Rule 74)
administration within two (2) years
after the death of the decedent.
Summary settlement of estate is a judicial proceeding
wherein, without the appointment of executor or
c) Heirs all of legal age or minors represented by
administrator, and without delay, the competent court
judicial guardians or legal representatives
summarily proceeds to value the estate of the
decedent; ascertain his debts and order payment d) Settlement made in public instrument duly
thereof; allow his will if any; declare his heirs, devisee filed with Register of Deeds
and legatees; and distribute his net estate among his
known heirs, devisees, and legatees, who shall e) Publication in newspaper of general
thereupon be entitled to receive and enter into the circulation in the province once a week for 3
possession of the parts of the estate so awarded to consecutive weeks
them, respectively.
f) Bond equivalent to value of personal property
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT posted with Register of Deeds
BETWEEN HEIRS
■ Bond is required only when personal
If the decedent left no will and no debts and the property is involved in the extrajudicial
heirs are all of age, or the minors are represented settlement. Real estate is subject to
by their judicial or legal representatives duly lien in favor of creditors, heirs or other
authorized for the purpose, the parties may without persons for 2 years from distribution
securing letters of administration, divide the estate of estate, notwithstanding any
among themselves as they see fit by means of a transfers of real estate that may have
public instrument filed in the office of the register of been made.
deeds, and should they disagree, they may do so in
an ordinary action of partition. Butiong v. Plazo
If there is only one heir, he may adjudicate to himself The general rule is that when a person dies intestate,
the entire estate by means of an affidavit filled in the or, if testate, failed to name an executor in his will or

the executor o named is incompetent, or refuses the AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

trust, or fails to furnish the bond equipped by the HEIR
Rules of Court, then the decedent's estate shall be
judicially administered and the competent court shall Adjudication by an heir of the decedent’s entire estate
appoint a qualified administrator the order established to himself by means of an affidavit is allowed only if he
in Section 6 of Rule 78 of the Rules of Court. is the sole heir to the estate.
An exception to this rule, however, is found in Section In the Matter of the Intestate Estate of Delgado,
1 of Rule 4 wherein the heirs of a decedent, who left 2006
no will and no debts due from is estate, may divide the
estate either extrajudicially or in an ordinary action or Since Josefa Delgado had heirs other than Guillermo
partition without submitting the same for judicial Rustia, Guillermo could not have validly adjudicated
administration nor applying for the appointment of an Josefa’s estate all to himself. Rule 74, Section 1 of the
administrator by the court. The reasons that where the Rules of Court is clear. Adjudication by an heir of the
deceased dies without pending obligations, there is no decedent’s entire estate to himself by means of an
necessity for the appointment of an administrator to affidavit is allowed only if he is the sole heir to the
administer the. Estate for them and to deprive the real estate.
owners of their possession to which they are
immediately entitled.
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRAJUDICIAL SETTLEMENT OF ESTATE
Options available when the deceased left no will
and no debts:
ACTION FOR RECONVEYANCE
1. Extrajudicial settlement
2. Action for partition The remedy of an heir who did not participate in, or
3. Judicial administration had no knowledge of, the extrajudicial partition is to
file an action for reconveyance.
Two-year prescriptive period (Sec.4, Rule 74)
Prescriptive period for non-participants is 10 years.
Section 4, Rule 74 provides for a two year prescriptive An action for reconveyance based upon an implied
period (1) to persons who have participated or taken trust pursuant to article 1456 of the Civil Code
part or had notice of the extrajudicial partition, and in prescribes in ten years from the registration of the
addition (2) when the provisions of Section 1 of Rule deed or from the issuance of the title. (Teves v. CA,
74 have been strictly complied with, i.e., that all the 1999)
persons or heirs of the decedent have taken part in
the extrajudicial settlement or are represented by An action for reconveyance prescribes after a period
themselves or through guardians. (Pedrosa v. CA) of 10 years from the date of the issuance of new title if
land was registered, or from the actual notice of such
If it shall appear at any time within two (2) years after if the land was unregistered. An action for
the settlement and distribution of an estate that an reconveyance is available to those persons who have
heir or other person has been unduly deprived of his not participated in the settlement and have no
lawful participation in the estate, such heir or such knowledge of such.
other person may compel the settlement of the estate
in the courts for the purpose of satisfying such lawful However, an action for reconveyance will not pursue if
participation. the subject lot was sold to an innocent purchaser for
value. The remedy available in such case would be an
And if within the same time of two (2) years, it shall action for damages.
appear that there are debts outstanding against the
estate which have not been paid, or that an heir or When is action for reconveyance imprescriptible?
other person has been unduly deprived of his lawful
participation payable in money, the court having In actions for reconveyance of the property predicated
jurisdiction of the estate may, by order for that on the fact that the conveyance complained of was
purpose, after hearing, settle the amount of such null and void ab initio, a claim of prescription of action
debts or lawful participation and order how much and would be unavailing. The action or defense for the
in what manner each distributee shall contribute in the declaration of the inexistence of a contract does not
payment thereof, and may issue execution, if prescribe. (Macababbad vs. Masirag)
circumstances require, against the bond provided in
the preceding section or against the real estate The Court permitted the filing of an action for
belonging to the deceased, or both. reconveyance despite the lapse of ten years and
declared that said action, when based on fraud, is
imprescriptible as long as the land has not passed to

an innocent purchaser for value. But in all those EXTRAJUDICIAL SETTLEMENT

cases, the common factual backdrop was that the
registered owners were never in possession of the In annulment of fraudulent extrajudicial settlement, the
disputed property. Instead, it was the persons with the action is imprescriptible. Do not confuse this with
better right or the legal owners of the land who had action for reconveyance.
always been in possession of the same. Thus, the
Court allowed the action for reconveyance to prosper Bautista vs. Bautista, 2007
in those cases despite the lapse of more than ten
years from the issuance of title to the land. (Heirs of Unquestionably, the Deed of Extra-judicial Partition is
Saludares v. CA) invalid insofar as it affects the legitimate share
pertaining to the defendant-appellee in the property in
Does the issuance of the certificates of titles question. There can be no question that the Deed of
convert the action to one of reconveyance of titled Extrajudicial Partition was fraudulently obtained.
land which, under settled jurisprudence, Hence, an action to set it aside on the ground of fraud
prescribes in ten (10) years? could be instituted. The deed of extrajudicial partition
in the case at bar being invalid, the action to have it
No, the action remains imprescriptible. The issuance annulled does not prescribe.
of a certificate of title in their favor could not vest upon
them ownership of the entire property; neither could it Neri v. Heirs of Uy, 2012
validate the purchase thereof which is null and void.
Registration does not vest title; it is merely the In the execution of the Extrajudicial Settlement of the
evidence of such title. (Macababbad vs. Masirag) Estate with Absolute Deed of Sale in favor of spouses
Uy, all the heirs of Anunciacion should have
Roman Catholic Archbishop of Tuguegarao vs. participated. Considering that Eutropia and Victoria
Prudencio, 2016 were admittedly excluded and that then minors Rosa
and Douglas were not properly represented therein,
This is a case of exclusion of the rightful heirs in the the settlement was not valid and binding upon them
partition of the estate of the deceased. and consequently, a total nullity On the issue of
prescription, the Court agrees with petitioners that the
It is undisputed that respondents-appellees were present action has not prescribed in so far as it seeks
children of Felipe by his first marriage. Teodora, to annul the extrajudicial settlement of the estate.
Prudencio, Jr. and Leonora did not deny
respondents-appellees' relation with Felipe. Despite The prescriptive period of 2 years provided in Section
this, however, Teodora, Prudencio, Jr. and Leonora 1 Rule 74 of the Rules of Court reckoned from the
declared in the Extra-Judicial Partition that they are execution of the extrajudicial settlement finds no
the only living heirs of Felipe by operation of law. They application to petitioners who were deprived of their
claimed that Felipe had no child with his first wife lawful participation in the subject estate. Besides, an
Elena, in effect depriving respondents-appellees of "action or defense for the declaration of the
their rightful shares in the estate of their parents. inexistence of a contract does not prescribe" in
accordance with Article 1410 of the Civil Code.
Considering that respondents-appellees have neither
knowledge nor participation in the Extra-Judicial However, the action to recover property held in trust
Partition, the same is a total nullity. It is not binding prescribes after 10 years from the time the cause of
upon them. action accrues, which is from the time of actual notice
in case of unregistered deed. In this case, Eutropia,
Reillo vs. San Jose, 2009 Victoria and Douglas claimed to have knowledge of
the extrajudicial settlement with sale after the death of
A deed of extrajudicial partition executed without their father, Enrique, in 1994 which spouses Uy failed
including some of the heirs, who had no knowledge of to refute. Hence, the complaint filed in 1997 was well
and consent to the same, is fraudulent and vicious. within the prescriptive period of 10 years.
The deed of settlement made by petitioners was
invalid because it excluded respondents who were
PROBATE OF WILL
entitled to equal shares in the subject property. Under
the rule, no extrajudicial settlement shall be binding
upon any person who has not participated therein or When a person died with a will, it is mandatory that his
had no notice thereof. Thus, the RTC correctly will be probated, otherwise, it will be a violation of
annulled the Deed of Extrajudicial Settlement of Estate public policy.
Among Heirs with Waiver of Rights.
Unless will is probated and notice given to the whole
world, the right of a person to dispose of his property
ACTION TO ANNUL FRAUDULENT

by will may be rendered nugatory. (Maninang v. CA) that respondent was instituted as the sole heir of the
decedent. Petitioners, as nephews and nieces of the
In testate succession, no valid partition among heirs decedent, are neither compulsory nor testate heirs
until after will has been probated (Ralla vs. Judge who are entitled to be notified of the probate
Untalan) proceedings under the Rules. Respondent had no
legal obligation to mention petitioners in the petition
Presentation of will cannot be dispensed with on the for probate, or to personally notify them of the same.
ground of estoppel because public policy requires that
a will should be probated (Fernandez vs. Dimaguiba) Besides, assuming arguendo that petitioners are
entitled to be so notified, the purported infirmity is
Probate court does not look into the intrinsic cured by the publication of the notice. After all,
validity personal notice upon the heirs is a matter of
procedural convenience and not a jurisdictional
GR: Probate court’s authority is limited only to requisite. (Alaban v. CA)
extrinsic validity of the will:
CONTENTS OF THE PETITION
a. Due execution – voluntariness of the testator
b. Testator’s testamentary capacity – he must be A petition for the allowance of a will must show, so far
of sound mind. as known to the petitioner:
c. Legal solemnities and formalities as may be
provided by the law. a) The jurisdictional facts;
XPN: An exception of the rule was enunciated in the b) The names, ages, and residences of the heirs,
case of Nuguid vs Nuguid where the Supreme Court legatees, and devisees of the testator or
ruled that the court may look into the intrinsic validity decedent;
of the will in exceptional circumstances, such as when
the will is void on its face. In such a case, the probate c) The probable value and character of the
court may pass upon the intrinsic validity of the will, property of the estate;
otherwise, the probate of the will is an idle ceremony
d) The name of the person for whom letters are
that will be contrary to the expedient disposition of
prayed;
cases.
e) If the will has not been delivered to the court,
3. Allowance or disallowance of wills (Rule 76)
the name of the person having custody of it.
Rule 76, Section 1. Who may petition for the But no defect in the petition shall render void the
allowance of will. — Any executor, devisee, or legatee allowance of the will, or the issuance of letters
named in a will, or any other person interested in the testamentary or of administration with the will
estate, may, at any time after the death of the testator, annexed.
petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, Notice and Hearing; Publication
or is lost or destroyed.
When a will is delivered to, or a petition for the
The testator himself may, during his lifetime, petition allowance of a will is filed in, the court having
the court for the allowance of his will. jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to
★ It is important to distinguish an executor from an contest the allowance thereof, and shall cause notice
administrator — An executor is a person named by the of such time and place to be published three (3)
testator in his will to administer the estate of the weeks successively, previous to the time appointed,
testator. On the other hand, an administrator is a in a newspaper of general circulation in the province.
person appointed by the court to administer the estate
of the decedent if he left no will, or if the executor No newspaper publication shall be made where the
named in the will is incompetent, refuses the trust, or petition for probate has been filed by the testator
fails to give a bond. himself.
Heirs, devisees, legatees, and executors to be EVIDENCE INTRODUCED AT PROBATE OF WILL

notified by mail or personally
1) Publication
According to the Rules, notice is required to be
personally given to known heirs, legatees, and 2) Notice of hearing served on known heirs,
devisees of the testator. A perusal of the will shows legatees, devisees, etc. if places of residence

known been complied with;
3) Testimony of subscribing witnesses (2) If the testator was insane, or otherwise

(Non-holographic will) mentally incapable of making a will, at the time of its
execution;
a) Uncontested – one witness sufficient
(3) If it was executed through force or under
b) Contested – all the subscribing duress, or the influence of fear, or threats;
witnesses and the notary public who
notarized the will (4) If it was procured by undue and improper
pressure and influence, on the part of the beneficiary
4) Holographic will or of some other person;
a) Uncontested – at least one witness (5) If the signature of the testator was procured
who knows handwriting and signature by fraud;
of testator; expert testimony in the
absence of competent witness (6) If the testator acted by mistake or did not
intend that the instrument he signed should be his will
b) Contested – at least 3 witnesses who at the time of affixing his signature thereto.
know handwriting of testator; expert
testimony in the absence of These lists are exclusive; no other grounds can serve
competent witness to disallow a will.
5) When the testator himself submitted his Example: If the testator fails to sign and date some of
holographic will for probate, if it is
the dispositions, the result is that these dispositions
uncontested, the testator only needs to affirm
cannot be effectuated. Such failure does not render
that it is his will and the signature was his own
the whole testament void EXCEPT if the
signature. If contested, the burden of proof
unauthenticated alterations, cancellations or insertions
lies with the contestant to disprove the due
were made on the date of the holographic will or on
execution and genuineness of the will.
the testator's signature. (Ajero v. CA)
GROUNDS FOR DISALLOWING WILL 4. Claims against the estate (Rule 86)
Rule 76, Section 9. Grounds for disallowing will. — Notice to creditors to be issued by court (Sec. 1)
The will shall be disallowed in any of the following
cases: Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring
(a) If not executed and attested as required by all persons having money claims against the decedent
law; to file them in the office of the clerk of said court.
(b) If the testator was insane, or otherwise Note: Only those contracted BEFORE the decedent’s
mentally incapable to make a will, at the time of its death may be brought under Rule 86.
execution;
Time within which claims shall be filed (Sec. 2)
(c) If it was executed under duress, or the
influence of fear, or threats;
GR: In the notice, the court shall state the time for the
(d) If it was procured by undue and improper filing of claims against the estate, which shall not be
pressure and influence, on the part of the beneficiary, more than twelve (12) not less than six (6) months after
or of some other person for his benefit; the date of the first publication of the notice.
(e) If the signature of the testator was procured XPN: However, at any time before order of distribution
by fraud or trick, and he did not intend that the is entered, the creditor who failed to file his claim
instrument should be his will at the time of fixing his within the time set may move to be allowed to file
signature thereto. such claim. Court may, for good cause shown and on
such terms as are just, allow such claim to be filed
within a period NOT EXCEEDING ONE MONTH.
Art. 839, Civil Code. The will shall be disallowed in One month does not commence from expiration of the
any of the following cases: original period for filing claims. It begins from the date
of the order of the court allowing said filing (Barredo
(1) If the formalities required by law have not vs. CA)

Publication of notice to creditors (Sec. 3) contract against the estate of a deceased debtor.
Those claims are not actually extinguished. What is
Every executor or administrator shall, immediately extinguished is only the obligee’s action or suit filed
after the notice to creditors is issued, cause the same before the court, which is not then acting as a probate
to be published three (3) weeks successively in a court. In the present case, whatever monetary
newspaper of general circulation in the province, and liabilities or obligations Santos had under his
to be posted for the same period in four (4) public contracts with respondent were not intransmissible by
places in the province and in two (2) public places in their nature, by stipulation, or by provision of law.
the municipality where the decedent last resided. Hence, his death did not result in the extinguishment
of those obligations or liabilities, which merely passed
Publication of notice to creditors is a constructive on to his estate. Death is not a defense that he or his
notice to the whole world. Hence, the creditor cannot estate can set up to wipe out the obligations under the
be permitted to file his claim beyond the period fixed performance bond. (Stronghold Insurance Company,
in the notice on the ground that he had no knowledge Inc. vs. Republic-Asahi Glass Corporation)
of the administration proceedings. (Villanueva vs. PNB)
A money claim is only an incidental matter in the main
CLAIMS THAT MUST BE FILED (Sec. 5) action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant
cannot even institute a separate action for a mere
1) All claims for money against the decedent,
contingent claim. Hence, herein petitioner's
arising from contract, express or implied,
contingent money claim, not being an initiatory
whether the same be due, not due, or
pleading, does not require a certification against
contingent;
non-forum shopping. (Sheker vs. Estate of Alice
Sheker)
■ Implied contract includes quasi
contract based on solutio indebiti
REMEMBER:
(unjust enrichment). Metrobank’s
claim against Chua’s estate is based
■ Only money claims may be presented in the
on a quasi contract. It should
testate or intestate proceedings.
reimburse Metrobank in case
Metrobank would be held liable in the
■ Not all money claims but only those arising
third-party complaint filed against it
upon a liability contracted by decedent before
by AMC. (Metropolitan Bank & Trust
his death.
Company vs. Absolute Management
Corporation)
■ Claims arising after his death cannot be
presented EXCEPT funeral expenses and
2) All claims for funeral expenses and expenses
expenses for last sickness. Claims arising
for the last sickness of the decedent; and
after the decedent’s death may be allowed as
expenses of administration.
3) Judgment for money against the decedent
■ Only claims for money, debt or interest
■ The judgment must be presented as a
thereon, arising from contract can be
claim against the estate where the
presented in the testate or intestate
judgment debtor dies before levy on
proceedings.
execution of his properties
(Evangelista vs. La Provedra)
The three ways by which a creditor may prosecute
his contractual money claim against the estate are
★ Must be filed within the time limited in the notice;
as follows:
otherwise they are barred forever, except that they
may be set forth as counterclaims in any action
1) Creditor may file his money claim within the
that the executor or administrator may bring
period fixed by the court which is not more
against the claimants.
than 12 months nor less than 6 months from
the date of the first publication of notice;
★ The judgment of the court approving or
disapproving a claim shall be appealable. (Sec.
2) Before the order of distribution, for good
13)
cause shown and within such term as
equitable, the court may allow the filing of the
Money claims against a deceased debtor
claim for a period of not more than 1 month
from the issuance of the order allowing such
Section 5 of Rule 86 of the Rules of Court expressly
filing.
allows the prosecution of money claims arising from a

3) The creditor may file his claim as counterclaim 4. When the affidavit is made by a person other
in his answer in an action brought by the than the claimant, he must set forth therein
executor or administrator against him. the reason why it is not made by the claimant.
Claims which survive death of accused CLAIM OF EXECUTOR OR ADMINISTRATOR

AGAINST THE ESTATE (Sec. 8)
Claim for civil liability survives notwithstanding death
of accused if the same may also be based on a source If the executor or administrator has a claim against the
of obligation other than delict (contract, law, estate he represents, he shall give notice thereof, in
quasi-contract, quasi-delict) writing, to the court, and the court shall appoint a
special administrator, who shall, in the adjustment of
Separate civil action may be enforced either against: such claim, have the same power and be subject to
the same liability as the general administrator or
a. Estate of accused (contract) executor in the settlement of other claims. The court
b. Executor/ administrator (law, quasi-contract, may order the executor or administrator to pay to the
quasi-delict) special administrator necessary funds to defend such
claim.
Civil actions for tort or quasi-delict do not fall within
the class of claims to be filed under the notice to Solidary Obligation of Decedent (Sec. 6)
creditors required under Rule 86. These actions, being
civil, survive the death of the decedent and may be Where the obligation of the decedent is solidary with
commenced against the administrator pursuant to another debtor, the claim shall be filed against the
Section 1, Rule 87. (Hilado vs. Court of Appeals) decedent as if he were the only debtor, without
prejudice to the right of the estate to recover
Execution of final judgment not proper remedy but contribution form the other debtor. In a joint obligation
filing of claim of the decedent, the claim shall be confined to the
portion belonging to him.
While the judgment in a civil case has become final
and executory, execution is not the proper remedy to MORTGAGE DEBT DUE FROM ESTATE (Sec. 7)
enforce payment thereof. The ordinary procedure by
which to settle claims or indebtedness against the The three options available to the mortgagee-creditor
estate of a deceased person is for the claimant to are the following:
present a claim before the probate court so that said
court may order the administrator to pay the amount 1) Abandon the mortgage and claim the entire
thereof. (Domingo v. Garlitos) debt against the estate in an ordinary claim;
During the pendency of the proceedings all the estate 2) Foreclose judicially and prove the deficiency, if
is in custodia legis and the proper procedure is not to any, in a contingent claim; or
allow the sheriff, in case of a court judgment, to seize
the properties but to ask the court for an order to 3) Rely on the mortgage and foreclose
require the administrator to pay the amount due from extrajudicially without the right of claiming any
the estate and required to be paid. (ibid) deficiency.
★ These remedies are distinct, independent and

PROCEDURE FOR FILING OF CLAIMS (Sec. 9)
mutually exclusive from each other; thus, the election
of one effectively bars the exercise of the others.
1. A claim may be filed by delivering the same
with the necessary vouchers to the clerk of 5. Payment of the debts of the estate (Rule 88)
court and by serving a copy thereof on the
executor or administrator. Debts paid in full if estate sufficient (Sec. 1)
2. When the claim is due, it must be supported If, after hearing all the money claims against the
by affidavit stating the amount justly due, that estate, and after ascertaining the amount of such
no payments have been made thereon which claims, it appears that there are sufficient assets to
are not credited, and that there are no offsets pay debts, the executor or administrator shall pay the
to the same, to the knowledge of the affiant. same within the time limited for that purpose.
3. If the claim is not due, or is contingent, when IF ESTATE IS SUFFICIENT

filed, it must also be supported by affidavit
stating the particulars thereof. General rule: The payment of the debts of the estate

must be taken from: (by order of preference) extension.
1) the portion or property designated in the will; 3) Whole period allowed to the original
2) the personal property, and executor/administrator shall not exceed 2
3) the real property. years.
If there is still a deficiency, it shall be met by 4) Successor of dead executor/administrator

contributions by devisees, legatees, or heirs who have may have time extended on notice not
been in possession of portions of the estate BEFORE exceeding 6 months at a time and not
debts and expenses have been settled and paid. exceeding 6 months beyond the time allowed
(Secs. 1-3, 6) to the original executor/administrator.
Exceptions: The following are the instances when PAYMENT OF CONTINGENT CLAIMS (Secs. 4 & 5)
realty can be charged first:
Contingent claim is a claim that is subject to the
1) When the personal property is not sufficient.
happening of a future uncertain event.
(Sec. 3, Rule 88)
If the court is satisfied that a contingent claim duly
2) Where the sale of personal personalty would
filed is valid, it may order the executor or administrator
be detrimental to the participants (everyone)
to retain in his hands sufficient estate to pay such
of the estate. (Sec. 3, Rule 88)
contingent claim when the same becomes absolute,
or, if the estate is insolvent, sufficient to pay a portion
3) When sale of personal property may injure the
equal to the dividend of the other creditors.
business or interests of those interested in the
estate. (Sec. 2, Rule 89)
Example of contingent claim: The RTC admitted to
probate the holographic will of Alice O. Sheker and
4) When the testator has not made sufficient
thereafter issued an order for all the creditors to file
provision for payment of such
their respective claims against the estate. In
debts/expenses/legacies. (Sec. 2, Rule 89)
compliance therewith, petitioner filed on October 7,
2002 a contingent claim for agent's commission due
5) When the decedent was, in his lifetime, under
him amounting to approximately ₱206,250.00 in the
contract, binding in law, to deed real property
event of the sale of certain parcels of land belonging
to the beneficiary. (Sec. 8, Rule 89)
to the estate, and the amount of ₱275,000.00, as
reimbursement for expenses incurred and/or to be
6) When the decedent during his lifetime held
incurred by petitioner in the course of negotiating the
real property in trust for another person. (Sec.
sale of said realties. (Sheker vs. Sheker)
9, Rule 89)
Requisites for the estate to be retained to meet
Requisites for Exceptions to Ensue:
contingent claims:
1. Application by executor/administrator
1. Contingent claim is duly filed within the two (2)
2. Written notice to persons interested
year period allowed for the creditors to
3. Hearing
present claims;
2. Court is satisfied that the claim is valid;
IF ESTATE IS INSOLVENT
3. The claim has become absolute.
If the assets which can be appropriated for the
★ If the claim is not presented within said two (2)
payment of debts are not sufficient for that purpose,
years, the assets retained in the hands of the executor
the executor or administrator shall pay the debts
or administrator, not exhausted in the payment of
against the estate, observing the provisions of Articles
claims, shall be distributed by the order of the court to
1059 and 2239 to 2251 of the Civil Code.
the persons entitled to the same; but the assets so
distributed may still be applied to the payment of the
TIME FOR PAYING DEBTS (Sec. 15 &16)
claim when established, and the creditor may maintain
an action against the distributees to recover the debt,
1) Executor/administrator allowed to pay debts
and such distributees and their estates shall be liable
(and legacies) for a period not more than 1
for the debt in proportion to the estate they have
year.
respectively received from the property of the
deceased.
2) Extendible (on application of executor/
administrator and after notice and hearing) –
6. Sales, mortgages, and other encumbrances of
not exceeding 6 months for a single

property of decedent (Rule 89) ■ Also such application for authority to sell or
encumber property of the estate must be with
■ The court may allow only the sale of personal notice to the heirs, devisees and legatees.
property for the purposes in section 1 and not Otherwise, the sale is void. Such notice is
encumbrance thereof. presumed to have been given absent proof to
the contrary and order of the court granting
■ With respect to real property the court may such authority cannot be assailed in a
permit the same to be sold, mortgaged or collateral proceeding.
otherwise encumbered under sections 2, 4, 5,
6. 7. Distribution and partition (Rule 90)
◆ Under both sections 4 and 6, if it will General rule: Distribution of the residue to persons
not be for the convenience of or entitled thereto shall only be made after notice and
beneficial to the heirs and not for hearing, and after payment of: (DEFAI)
payment of debts, administration
expenses and legacies, real property ➢ debts
can only be allowed to be sold and ➢ expenses of administration
not encumbered. ➢ funeral charges
➢ allowance to widow
■ As a rule, unless the testator had made ➢ inheritance tax
provisions to the contrary in his will, the
personal property of the estate must first be Exception: Distribution before payment of obligations
sold for the payment of debts, expenses of shall be allowed provided distributees give a BOND, in
administration or legacies. If the same is still a sum to be fixed by the court, conditioned for the
insufficient, the real property may be payment of said obligations within such time as the
proceeded against. Nevertheless, personalty court directs.
may always be sold at any time if it is
necessary for the preservation of its value. Before there could be a distribution of the estate,
the following two stages must be followed:
■ The sale or encumbrance of real property may
be allowed by the court if the petition 1) Liquidation of estate
therefore avers:
■ determination of all assets of the
(a) that the personal estate is not sufficient to estate and payment of all debts and
pay the debts, expenses of administration and expenses
legacies or that the sale of such personalty
may injure the business or the interests of 2) Declaration of heirs
persons interested in the estate;
■ to determine to whom residue of the
(b) that the testator has not otherwise made estate should be distributed. Separate
sufficient provisions for the payment of such action for declaration of heirs not
debts, expenses of administration and proper.
legacies; and
■ A separate action for the declaration
(c) that such sale or encumbrance would be of heirs is not proper.
beneficial to the parties interested in the
estate. The net estate of the decedent must be ascertained,
by deducting all payable obligations and charges from
◆ The averment as to the value of the the value of the property owned by the deceased at
personal estate is a requisite in the the time of his death; then, all donations subject to
petition for sale of real property, collation would be added to it. With the partible estate
without such averment court has no thus determined, the legitime of the compulsory heir
jurisdiction to authorize sale of realty. or heirs can be established; and only then can it be
Sale of such is null and void. ascertained whether or not a donation had prejudiced
the legitimes. (Heirs of Doronio v. Heirs of Doronio)
■ If the administrator or executor sells property
of estate without the requisite authority of the PROJECT OF PARTITION
court, such sale is null and void. The same
rule would apply to encumbrances of real Project of partition is a document prepared by the
property without authority of the court. executor or administrator setting forth the manner in
which the estate of the deceased is to be distributed

among the heirs. which would be tried by another court or

Judge which may thus reverse a decision or
If the estate is a testate estate, the project of partition order of the probate on intestate court already
must conform to the terms of the will; if intestate, the final and executed and re-shuffle properties
project of partition must be in accordance with the long ago distributed and disposed of. (Guillas
provisions of the Civil Code. vs. Judge of CFI of Pampanga)
WHEN PROBATE COURT LOSES JURISDICTION Vda de Lopez v. Lopez compared to Divinagracia v.
Rovira
The probate court loses jurisdiction of an estate under
Both involved the issue of the reglementary period
administration only after the payment of all the debts
within which NON-PARTIES to the partition, heir,
and the remaining estate delivered to the heirs entitled
devisee or any person interested in the estate, can
to receive the same. The finality of the approval of the
reopen the case.
project of partition by itself alone does not terminate
the probate proceeding. (Timbol vs. Cano)
Conclusion – If the proceeding is already closed, a
motion to reopen may be filed by a non-party deprived
As long as the order of the distribution of the estate
of his lawful participation, as long as it is within 30
has not been complied with, the probate proceedings
days (now 15 days) or before order closing the
cannot be deemed closed and terminated; because a
proceedings becomes final.
judicial partition is not final and conclusive and does
not prevent the heir from bringing an action to obtain
Guillas vs. Judge of CFI of Pampanga compared to
his share, provided the prescriptive period therefor
Heirs of Jesus Fran vs. Salas
has not elapsed (Mari vs. Bonilla)
Both involved PARTIES who have not received their
The RTC, acting as a special commercial court,
shares.
has no jurisdiction to settle, partition, and
distribute the estate of a deceased.
Conclusion – The parties to partition agreement who
have not received their shares can file a motion for
A probate court has the power to enforce an
execution within 5 YEARS. But if other grounds such
accounting as a necessary means to its authority to
as forgery of will are raised, final judgment cannot be
determine the properties included in the inventory of
attacked except through a separate action. The
the estate to be administered, divided up, and
validity of a final judgment can be assailed through a
distributed. Beyond this, the determination of title or
petition for relief under Rule 38, annulment of
ownership over the subject shares (whether belonging
judgment under Rule 47, and petition for certiorari
to Anastacia or Oscar) may be conclusively settled by
under Rule 65, assuming the judgment is void for want
the probate court as a question of collation or
of jurisdiction.
advancement. (Reyes vs. RTC Makati)
REMEDY OF PRETERITED HEIR
Once an action for the settlement of an estate is
filed with the court, the properties included therein
The intestate proceedings, although closed and
are under the control of the intestate court.
terminated, can still be opened within the prescriptive
period of 10 years upon petition by the preterited heir
Not even the administrator may take possession of
(Solivio vs. CA)
any property that is part of the estate without the prior
authority of the Court. (Silverio, Jr. vs. Court of
INSTANCES WHEN PROBATE COURT MAY ISSUE
Appeals)
WRIT OF EXECUTION
REMEDY OF HEIR ENTITLED TO RESIDUE BUT 1) To satisfy the contributive shares of devisees,
NOT GIVEN HIS SHARE legatees and heirs in possession of the
decedent‘s assets;
The better practice for the heir who has not received
his share, is to demand his share through: 2) To enforce payment of expenses of partition;
and
1) a proper motion in the same probate or
administration proceedings, or 3) To satisfy the costs when a person is cited for
examination in probate proceedings.
2) Motion to reopen the probate or administrative
proceedings if it had already been closed. B. Escheat (Rule 91)
★ and not through an independent action, Escheat is a proceeding whereby the real and

personal property of a deceased person in the bank and such creditors or depositors. All or any
Philippines, without leaving any will or legal heirs, member of such creditors or depositors or banks, may
become the property of the state upon his death. be included in one action.
REQUISITES FOR FILING OF PETITION REMEDY OF RESPONDENT AGAINST ESCHEAT

PETITION
a) That a person died intestate;
b) That he left no heirs or person by law entitled 1) Motion to dismiss for failure to state a cause
to the same; and of action. where petition for escheat does not
c) That the deceased left properties. state facts which entitle petitioner to the
remedy prayed for.
Parties in Escheat Proceedings
2) Other grounds for dismissal under the rules
An escheat proceeding is initiated by the government
through the Solicitor General. FILING OF CLAIM TO ESTATE (Sec. 4)
All interested parties, especially the actual occupants If a devisee, legatee, heir, widow, widower or other
and adjacent lot owners, shall be personally notified person entitled to such estate appears and files a
of the proceedings and given opportunity to present claim thereto with the court within five (5) years from
their valid claims; otherwise, it will be reverted to the the date of such judgment, such person shall have
state. (Tan vs. City of Davao) possession of and title to the same, or if sold, the
municipality or city shall be accountable to him for the
Where to file proceeds, after deducting reasonable charges for the
care of the estate; but a claim not made within said
Regional Trial Court of the province where the time shall be forever barred.
deceased last resided or in which he had estate, if he
is a non resident. C. Guardianship
Order for hearing Kinds of guardian according to constitution
■ Date of the hearing shall be not more than 1. Legal – those deemed as guardians without
six (6) months after the entry of the order. need of a court appointment (Art. 225, Family
Court);
■ Publication of the order before the hearing
shall be made at least once a week for six (6) 2. Guardian ad litem – those appointed by
successive weeks in some newspaper of courts of justice to prosecute or defend a
general circulation published in the province minor, insane or person declared to be
incompetent, in an action in court; and
○ NOTE: Publication of the notice of
hearing is a jurisdictional requisite, 3. Judicial – those who are appointed by the
non-compliance with which affects court in pursuance to law, as guardian for
the validity of the proceedings (Divino insane persons, prodigals, minor heirs or
v. Hilario) deceased was veterans and other
incompetent persons.
ESCHEAT OF UNCLAIMED BALANCES
1. Venue (Rule 92)
Unclaimed balances which include credits or deposits
of money, bullion, security or other evidence of Sec. 1. Where to institute proceedings. - Guardianship
indebtedness of any kind, and interest thereon with of the person or estate of a minor or incompetent may
banks in favor of any person unheard from for a period be instituted in the Court of First Instance of the
of ten (10) years of more, together with the interest province, or in the justice of the peace court of the
and proceeds thereof shall be deposited with the municipality, or in the municipal court of the chartered
Insular Government of the Philippines as the city where the minor or incompetent person resides,
Philippine Legislature may direct (Unclaimed Balances and if he resides in a foreign country, in the Court of
Act, Sec. 1) First Instance of the province wherein his property or
part thereof is situated; provided, however, that where
Action to recover unclaimed balances shall be the value of the property of such minor or incompetent
commenced by the Solicitor General in an action for exceeds the jurisdiction of the justice of the peace or
escheat in the name of the People of the Philippines in municipal court, the proceedings shall be instituted in
the Regional Trial Court of the province where the the Court of First Instance.chanrobles virtualawlibrary
bank is located, in which shall be joined as parties the

In the City of Manila, the proceedings shall be case of an insane minor person who needs to be
instituted in the Juvenile and Domestic Relations hospitalized.
Court.
Notice of application and hearing (Sec. 3)
Guardianship of minors as distinguished from
Notice of hearing of the petition shall be served on:
“incompetents” other than minority is now governed
by the Rule on Guardianship of Minors (A.M. No.
1. Persons mentioned in the petition residing in
003-03-05-SC)
the Philippines;
2. Incompetent himself
Sections 1 and 27 of the RGM make it clear that it
shall apply only to petitions for guardianship over the
Notice is jurisdictional. Without such notice, the
person, property or both, of a minor. Petitions for
court acquired no jurisdiction to appoint a guardian
guardianship of incompetents who are not minors
(Nery vs. Lorenzo)
shall continue to be governed by Rules 92-97 and
heard and tried by regular Regional Trial Courts.
Note: No publication required.
■ Minors — Family Court of province or city
3. General powers and duties of guardians (Rule
where minor resides or his property situated.
96)
■ Incompetents — Regional Trial Court of a) To have care and custody over the person of
province or city where incompetent resides or his ward, and/or the management of his estate
his property situated. (Sec. 1);
“INCOMPETENT” b) To pay the just debts of his ward out of the
latter‘s estate (Sec. 2);
1. persons suffering under the penalty of civil
interdiction c) To bring or defend suits in behalf of the ward,
and, with the approval of the court, compound
2. hospitalized lepers
for debts due the ward and give discharges to
3. prodigals the debtor (Sec. 3);
4. deaf and dumb who are unable to read and d) To manage the estate frugally and without
write waste, and apply the income and profits to the
5. those of unsound mind, even though they comfortable and suitable maintenance of the
have lucid intervals ward and his family (Sec. 4);
6. persons not being of unsound mind, but by e) To sell or encumber the real estate of the ward
reason of age, disease, weak mind, and other upon being authorized to do so (Sec. 4);
similar causes, cannot, without outside aid,
take care of themselves and manage their f) To join in an assent to a partition of real or
property. personal estate held by the ward jointly or in
common with others (Sec. 5).
2. Appointment of guardians (Rule 93)
4. Termination of guardianship (Rule 97)
Who may petition for appointment of guardianof
incompetent (Sec. 1, Rule 93) Petition that competency of ward be adjudged
(Sec. 1)
Relative, friend, or other person on behalf of
incompetent who has no parent or lawful guardian, for A person who has been declared incompetent for any
the appointment of a general guardian for the person reason, or his guardian, relative, or friend, may petition
or estate or both of such incompetent. the court to have his present competency judicially
determined.
Who may petition for appointment of guardian of
minor (Sec. 2, RGM)
On the trial, the guardian or relatives of the ward, and,
at the discretion of the court, any other person, may
1. Relative or other person on behalf of the minor
2. Minor himself if 14 years of age or over for the contest the right to the relief demanded, and
appointment of a general guardian over the witnesses may be called and examined by the parties
person or property, or both, of such minor. or by the court on its own motion.
The petition may also be filed by the Secretary of Social If it be found that the person is no longer incompetent,
Welfare and Development and Secretary of Health in the his competency shall be adjudged and the

guardianship shall cease. would affect paternity and filiation.
Grounds for removal of guardian (Sec. 2) ■ A person's name cannot be changed on the
ground of sex reassignment.
1) When a guardian becomes insane or
otherwise incapable of discharging his trust or ■ Where the person is biologically or naturally
unsuitable therefor; intersex, the determining factor in his gender
classification would be what the individual,
2) He has wasted or mismanaged the estate; having reached the age of majority, with good
reason, thinks of his or her sex. In this case,
3) He failed to render an account or make a the change of name is allowed.
return for thirty (30) days after it is due.
■ A mere change of name would not cause
When guardian allowed to resign (Sec. 2) one's existing family relations, nor create new
family rights and duties where none exists
A guardian may resign when it appears proper to allow before. Neither would it affect a person’s legal
the same; and upon his resignation or removal the capacity, civil status or citizenship.
court may appoint another in his place.
E. Cancellation or Correction of entries in the
D. Change of name (Rule 103) Civil Registry (Rule 108)
■ It is proceeding in rem and as such, strict ■ The obvious effect of RA 9048 is merely to
compliance with jurisdictional requirements, make possible the administrative correction of
particularly on publication, is essential in order clerical or typographical errors or change of
to vest the court with jurisdiction therefor. For first name or nickname in entries in the civil
this purpose, the only name that may be register, leaving to Rule 108 the correction of
changed is the true or official name as substantial changes in the civil registry, in
recorded in the civil register. appropriate adversarial proceedings.
■ A name given to a person in the church ■ RA 9048 now embodies the summary
records, or elsewhere or by which he is known procedure, while Rule 108 is for the
in the community — when it variance with that appropriate adversary proceeding.
entered in the civil register — is an official and
cannot be recognized as his real name. ■ Substantial corrections or cancellations of
entries in civil registry records affecting the
■ Failure to include the true name of the party status or legitimacy of a person may be
whose name is sought to be changed, in the effected through the institution of a petition
title of the petition and of the notices under Rule 108 of the Revised Rules of Court,
published in connection therewith precludes with the proper Regional Trial Court.
the court from obtaining jurisdiction to
entertain the same. ■ Substantial corrections to the nationality or
citizenship of persons recorded in the civil
■ Failure to include the name sought to be registry should be effected through a petition
adopted in the title of the petition and filed in court under Rule 108 of the Rules of
consequently in the notices published in the Court. (Kilosbayan Foundation vs. Ermita)
newspapers is a substantial jurisdictional
infirmity. F. Clerical error law (RA 9048)
■ Ultimately, the petitioner must include both his ■ RA 9048 now governs the change of first
true name and the name prayed for in his name. It vests the power and authority to
petition, otherwise, the court does not acquire entertain petitions for change of first name to
jurisdiction over the petition. the city or municipal civil registrar or consul
general concerned. Under the law, therefore,
■ In granting or denying petitions for change of jurisdiction over applications for change of
name, the question of proper and reasonable first name is now primarily lodged with the
cause is left to the sound discretion of the aforementioned administrative officers. The
court. intent and effect of the law is to exclude the
change of first name from the coverage of
■ Courts are precluded from granting a petition Rules 103 (Change of Name) and 108
for change of name when such changes (Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court, until and

unless an administrative petition for change of ■ What is left for the scope of operation of the
name is first filed and subsequently denied. It rules are substantial changes and corrections
likewise lays down the corresponding venue, in entries of the civil register. Ultimately, the
form and procedure. In sum, the remedy and remedy and the proceedings regulating
the proceedings regulating change of first change of first name are primarily
name are primarily administrative in nature, administrative in nature, not judicial.
not judicial (Silverio vs Republic)
RULE 103 RA 9048 RULE 108

(Change of name) (Clerical Error Act) (Cancellation or correction of
entries in the civil registry)
SUBJECT MATTER
Change of full name or family name Change of first name or nickname Cancellation or correction of civil
(substantial corrections) and correction of civil registry registry entries (substantial
entries (only typographical or clerical corrections)
errors)
WHO MAY FILE
A person desiring to change his Any person having direct and Any person interested in any act,
name. personal interest in the correction of event, order or decree concerning
a clerical or typographical error in an the civil status of persons which
entry and/or change of first name or has been recorded in the civil
nickname. register.
WHERE TO FILE
Petition should be filed in the RTC of 1. Local civil registry office of the Verified petition filed in the RTC
the province in which petitioner city or municipality where the where the corresponding Civil
resided for 3 years prior to filing. record being sought to be Registry is located.
corrected or changed is kept;
2. Local civil registrar of the place

where the interested party is
presently residing or domiciled;
3. Philippine Consulate for citizens

living abroad
CONTENTS OF THE PETITION
a) That petitioner has been a bona a) Facts necessary to establish the

fide resident of the province merits of petition;
where the petition is filed for at
least three (3) years prior to the b) Particular erroneous entry or
date of such filing; entries, which are sought to be
corrected and/or the change
b) The cause for which the change sought to be made. Petition
of petitioner's name is sought;
shall be supported by the
c) The name asked for. (Section 2) following documents:
1) A certified true machine

copy of the certificate or
of the page of the
registry book containing
the entry or entries

sought to be corrected
or changed;
2) At least two (2) public or

private documents
showing the correct
entry or entries upon
which the correction or
change shall be based;
and
3) Other documents
GROUNDS
a) Name is ridiculous, dishonorable a) Petitioner finds the first name or Cancellation or correction of entries
or extremely difficult to write or nickname to be ridiculous, of:
pronounce; tainted with dishonor or a) births;
extremely difficult to write or b) marriages;
b) Change is a legal consequence pronounce; c) deaths;
of legitimation or adoption;
d) legal separation;
b) The new first name or nickname
c) Change will avoid confusion; has been habitually and e) judgments or annulments
continuous used by petitioner of marriage;
d) One has continuously used and and he has been publicly known f) judgments declaring
been known since childhood by by that first name or nickname marriages void from the
a Filipino name and was unaware in the community; beginning;
of alien parentage; g) legitimations;
c) Change will avoid confusion. h) adoptions;
e) Change is based on a sincere
i) acknowledgments of
desire to adopt a Filipino name
natural children;
to erase signs of former alienage,
j) naturalizations;
all in good faith and without
prejudice to anybody; and k) election, loss or recovery of
citizenship;
f) Surname causes embarrassment l) civil interdiction;
and there is no showing that the m) judicial determination of
desired change of name was for filiation;
a fraudulent purpose, or that the n) voluntary emancipation of
change of name would prejudice a minor; and
public interest. o) changes of name.
NATURE OF PROCEEDING
● Judicial Proceeding ● Administrative Proceeding ● Judicial Proceeding

● Hearing is necessary ● No hearing required ● Hearing is necessary.
● Adversarial in nature as it
involves substantial changes
and affects the status of an
individual
NOTICE AND PUBLICATION
Notice of hearing to be published Petition shall be published at least Notice of hearing shall also be
once a week for three consecutive once a week for two consecutive published once a week for three
weeks in a newspaper of general weeks in a newspaper of general consecutive weeks in a newspaper
circulation in the province circulation. (Publish the whole of general circulation in the
affidavit) province, and court shall cause
Also, to be posted in a conspicuous reasonable notice to persons
place for ten consecutive days. named in the petition

WHO PARTICIPATES ON THE PART OF THE GOVERNMENT
The Solicitor General or the proper The Civil Registrar or Consul Civil Registrar is an indispensable
provincial or city fiscal shall appear party. If not made a party,
on behalf of the Government of the proceedings are null and void.
Republic. Reason: he is an interested party in
protecting the integrity of public
documents. The Solicitor General
must also be notified by service of
a copy of the petition.
WHERE TO FILE AN APPEAL
Court of Appeals under Rule 41 Civil Registrar General under Sec. 7 Court of Appeals under Rule 41
or Court of Appeals under Rule 43

G. Writ of Habeas Corpus higher courts. A writ of habeas corpus

1. Rule 102 reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari
■ Writ of Habeas Corpus means “to produce the reaches the record but not the body. Hence, a
body”. It is a remedy available in case of illegal writ of habeas corpus may be used with the
detention or confinement in which a person is writ of certiorari for the purpose of review.
deprived of his liberty, and in case the rightful
custody of a person is withheld from the ■ The general rule is that the release, whether
person entitled thereto. The main objective of permanent or temporary, of a detained person
the habeas corpus is to determine whether the renders the petition for habeas corpus moot
confinement or detention is illegal because if it and academic, unless there are restraints
is not, then the writ cannot be issued. Its attached to his release which precludes
purpose is to produce the body on the time freedom of action, in which case the Court
and place determined by the court. can still inquire into the nature of his
involuntary restraint.
■ The writ of habeas corpus shall extend to all
cases of illegal confinement or detention by ■ This writ may issue even if another remedy
which any person is deprived of his liberty, or which is less effective may be availed of –
by which the rightful custody of any person is failure by accused to perfect his appeal before
withheld from the person entitled thereto. the CA does not preclude recourse to the writ.
The writ may be granted upon a judgment
■ A petition for the issuance of a writ of habeas already final.
corpus is a special proceeding governed by
Rule 102 of the Revised Rules of Court. The Order to produce body not a grant of the remedy of
objective of the writ is to determine whether habeas corpus
the confinement or detention is valid or lawful.
If it is, the writ cannot be issued. What is to be In a habeas corpus petition, the order to present an
inquired into is the legality of his detention as individual before the court is a preliminary step in the
of, at the earliest, the filing of the application hearing of the petition. The respondent must produce
for the writ of habeas corpus, for even if the the person and explain the cause of his detention.
detention is at its inception illegal, it may, by However, this order is not a ruling on the propriety of
reason of some supervening events, such as the remedy or on the substantive matters covered by
the instances mentioned in Sec. 4 of Rule the remedy. Thus, the Court’s order to the Court of
102, be no longer illegal at the time of the Appeals to conduct a factual hearing was not an
filing of the application. affirmation of the propriety of the remedy of habeas
corpus. (In the Matter of the Petition for Habeas
■ Habeas corpus is a summary remedy. It is Corpus of Alejano vs. Cabuay)
analogous to a proceeding in rem when
instituted for the sole purpose of having the WHEN NOT APPLICABLE
person of restraint presented before the judge
in order that the cause of his detention may 1) For asserting or vindicating denial of right to
be inquired into and his statements final.The bail;
writ of habeas corpus does not act upon the
2) For correcting errors in appreciation of facts or
prisoner who seeks relief, but upon the person
appreciation of law – where the trial court had
who holds him in what is alleged to be the
no jurisdiction over the cause, over the person
unlawful authority. Hence, the only parties
of the accused, and to impose the penalty
before the court are the petitioner (prisoner)
provided for by law, the mistake committed by
and the person holding the petitioner in
the trial court, in the appreciation of the facts
custody, and the only question to be resolved
and/or in the appreciation of the law cannot
is whether the custodian has authority to
be corrected by habeas corpus;
deprive the petitioner of his liberty (Caballes
vs. CA) 3) Once a person detained is duly charged in
court, he may no longer file a petition for
■ Habeas corpus may not be used as a means
habeas corpus. His remedy would be to
of obtaining evidence on the whereabouts of a
quash the information or warrant.
person, or as a means of finding out who has
specifically abducted or caused the WHEN WRIT DISALLOWED/DISCHARGED
disappearance of a certain person.
If it appears that the person alleged to be restrained of
■ The writs of habeas corpus and certiorari may his liberty is in the custody of an officer under process
be ancillary to each other where necessary to issued by a court or judge or by virtue of a judgment
give effect to the supervisory powers of the or order of a court of record, and that the court or

judge had jurisdiction to issue the process, render the Once a person detained is duly charged in court, he
judgment, or make the order, the writ shall not be may no longer question his detention through a
allowed; or if the jurisdiction appears after the writ is petition for issuance of a writ of habeas corpus. His
allowed, the person shall not be discharged by reason remedy would be to quash the information and/or the
of any informality or defect in the process, judgment, warrant of arrest duly issued. The writ of habeas
or order. Nor shall anything in this rule be held to corpus should not be allowed after the party sought to
authorize the discharge of a person charged with or be released had been charged before any court. The
convicted of an offense in the Philippines, or of a term “court” includes quasi-judicial bodies or
person suffering imprisonment under lawful judgment. governmental agencies authorized to order the
person’s confinement, like the Deportation Board of
Writ of habeas corpus cannot be issued once the the Bureau of Immigration.
person is charged with a criminal offense
The general rule is that the release, whether
The remedy of habeas corpus has one objective: to permanent or temporary, of a detained person renders
inquire into the cause of detention of a person, and if the petition for habeas corpus moot and academic.
found illegal, the court orders the release of the
detainee. If, however, the detention is proven lawful, HABEAS CORPUS AS A POST-CONVICTION
then the habeas corpus proceedings terminate. (In the REMEDY
Matter of the Petition for Habeas Corpus of Kunting)
As a post-conviction remedy, it may be allowed when,
Mangila v. Pangilinan as a consequence of a judicial proceeding, any of the
following exceptional circumstances is attendant:
As a general rule, a writ of habeas corpus will not be
granted where relief may be had or could have been 1) there has been a deprivation of a
procured by resort to another general remedy. As constitutional right resulting in the restraint of
pointed out in Luna vs. Plaza, if petitioner is detained a person;
by virtue of a warrant of arrest, which is allegedly
invalid, the remedy available to her is not a petition for 2) the court had no jurisdiction to impose the
habeas corpus but a petition to quash the warrant of sentence; or
arrest or a petition for a reinvestigation of the case by
the Municipal Judge or by the Provincial Fiscal. 3) the imposed penalty has been excessive, thus
voiding the sentence as to such excess.
Habeas corpus is not in the nature of a writ of error;
nor intended as substitute for the trial court’s function. In Evangelista vs. Sistoza (2001), the accused filed a
It cannot take the place of appeal, certiorari or writ of petition for habeas corpus to secure his release from
error. The writ cannot be used to investigate and prison, due to the amendment of PD 1866 by RA
consider questions of error that might be raised 8249, reducing the penalty for illegal possession of
relating to procedure or on the merits. The inquiry in a low powered firearms — from reclusion temporal in its
habeas corpus proceeding is addressed to the maximum period to reclusion perpetua, to prision
question of whether the proceedings and the assailed correccional in its maximum period. The court granted
order are, for any reason, null and void. The writ is not the petition, as he has already served 9 years in
ordinarily granted where the law provides for other prison, more than the maximum term of his
remedies in the regular course, and in the absence of imprisonment for robbery. He need not serve anymore
exceptional circumstances. Moreover, habeas corpus his sentence of 18 years of reclusion temporal as
should not be granted in advance of trial. The orderly minimum to reclusion perpetua as maximum for illegal
course of trial must be pursued and the usual possession of firearm, in view of said amendment.
remedies exhausted before resorting to the writ where
Retroactive effect of favorable law
exceptional circumstances are extant. In another case,
it was held that habeas corpus cannot be issued as a Where a decision is already final, the appropriate
writ of error or as a means of reviewing errors of law remedy of the accused to secure release from prison
and irregularities not involving the questions of is petition for habeas corpus.
jurisdiction occurring during the course of the trial,
subject to the caveat that constitutional safeguards of WRIT OF HABEAS CORPUS IS DIFFERENT FROM
human life and liberty must be preserved, and not THE FINAL DECISION ON THE PETITION FOR THE
destroyed. It has also been held that where restraint is ISSUANCE OF THE WRIT
under legal process, mere errors and irregularities,
which do not render the proceedings void, are not It is the writ that commands the production of the
grounds for relief by habeas corpus because in such body of the person allegedly restrained of his or her
cases, the restraint is not illegal. liberty. On the other hand, it is in the final decision
where a court determines the legality of the restraint.
Office of the Solicitor General vs. Judge de Castro
Between the issuance of the writ and the final decision

on the petition for its issuance, it is the issuance of the distinguished from the actual order called the
writ that is essential. The issuance of the writ sets in Writ of Amparo. The privilege includes
motion the speedy judicial inquiry on the legality of availment of the entire procedure outlined in
any deprivation of liberty. Courts shall liberally issue A.M. No. 07-9-12-SC, the Rule on the Writ of
writs of habeas corpus even if the petition for its Amparo.
issuance "on [its] face [is] devoid of merit[.]" Although
the privilege of the writ of habeas corpus may be ■ It is not a writ to protect concerns that are
suspended in cases of invasion, rebellion, or when the purely property or commercial. Neither is it a
public safety requires it, the writ itself may not be writ that we shall issue on amorphous and
suspended. uncertain grounds.
2. Writ of Habeas Corpus in relation to custody of ■ The petitioner in an amparo case has the
minors (A.M. No. 03-04-04-SC) burden of proving by substantial evidence the
indispensable element of government
A verified petition for the rightful custody of a minor participation. A writ of amparo is not a proper
may be filed by any person claiming such right. The remedy if there is no government
petition shall be filed with the Family Court of the participation.
province or city where the petitioner resides or where
the minor may be found. ■ Writ of amparo cannot be issued in cases
where the alleged threat to life, liberty and
After trial, the court shall render judgment awarding security has ceased and is no longer imminent
custody of the minor to the proper party considering or continuing.
the best interests of the minor.
■ An amparo proceeding does not determine
However, if it appears that both parties are unfit to guilt nor pinpoint criminal culpability for the
have the care and custody of the minor, the court may disappearance [threats thereof or extrajudicial
designate either the paternal or maternal grandparent killings]; it determines responsibility, or at least
of the minor or his oldest brother or sister, or any accountability, for the enforced disappearance
reputable person to take charge of such minor, or for purposes of imposing the appropriate
commit him to any suitable home for children. remedies to address the disappearance.
(Boac vs. Cadapan)
The court may issue any order that is just and
reasonable permitting the parent who is deprived of DIFFERENCES BETWEEN AMPARO AND SEARCH
the care and custody of the minor to visit or have WARRANT
temporary custody.
The production order under the Amparo Rule should
H. Writ of Amparo not be confused with a search warrant or law
(A.M. No. 07-9-12-SC) enforcement under Art. III, Sec. 2 of the Constitution.
The Constitutional provision is a protection of the
■ Writ of Amparo is a remedy available to a people from the unreasonable intrusion of the
person whose right to life, liberty, and security government, not a protection of the government from
is violated or threatened by an unlawful act or the demand of the people as such respondents.
omission of a public official or employee, or a Instead, the amparo production order may be limited
private individual or entity. This covers to the production of documents or things under Sec.
extralegal killings and enforced 1, Rule 27 of the Rules of Civil Procedure.
disappearances. The indispensable requisite
for the issuance of the writ, which must be I. Writ of Habeas Data
proven by substantial evidence, is the (A.M. No. 08-1-16-SC)
government’s participation. If there is no
government participation, the writ cannot be ■ Writ of Habeas Data is a remedy which aims
issued. to protect one’s right to control information
with regard to oneself especially when the
■ The privilege of the writ of amparo is a remedy information was obtained through an unlawful
available to victims of extra-judicial killings means in order to achieve an unlawful ends.
and enforced disappearances or threats of For the writ to be issued, there must be a
similar nature, regardless of whether the nexus between the right to privacy in one
perpetrator of the unlawful act or omission is a hand, and the right to life, liberty, and security
public official or employee or a private on the other.
individual.
■ Provides a judicial remedy to protect a
■ The privilege of the Writ of Amparo should be person’s right to control information regarding

oneself, particularly in instances where such ■ An indispensable requirement before the

information is being collected through privilege of the writ may be extended is the
unlawful means in order to achieve unlawful showing, at least by substantial evidence, of
ends. an actual or threatened violation of the right to
privacy in life, liberty or security of the victim.
■ It seeks to protect a person’s right to control
information regarding oneself, particularly in ■ It is not a writ to protect concerns that are
instances in which such information is being purely property or commercial. Neither is it a
collected through unlawful means in order to writ that we shall issue on amorphous and
achieve unlawful ends. uncertain grounds
■ In order for the privilege of the writ to be INSTANCES WHEN PETITION BE HEARD IN
granted, there must exist a nexus between the CHAMBERS
right to privacy on the one hand, and the right
to life, liberty or security on the other. A hearing in chambers may be conducted where the
respondent invokes the defense that the release of the
■ Section 6 of the Rule on the Writ of Habeas data or information in question shall compromise
Data requires material allegations of ultimate national security or state secrets, or when the data or
facts in a petition for the issuance of a writ of information cannot be divulged to the public due to its
habeas data. nature or privileged character.
WRIT OF HABEAS CORPUS WRIT OF AMPARO WRIT OF HABEAS DATA
A remedy available to any person, it A remedy available to any person A remedy available to any person
covers cases of illegal confinement whose right to life, liberty and whose right to privacy in life,
or detention by which any person is security is violated or threatened liberty or security is violated or
deprived of his liberty, or by which with violation by an unlawful act or threatened by an unlawful act or
the rightful custody of any person omission of a public official or omission of a public official or
is withheld from the person employee, or of a private individual employee, or of a private individual
entitled thereto. or entity. The writ covers or entity engaged in the gathering,
extrajudicial killings and enforced collecting or storing of data or
disappearances or threats thereof. It information regarding the person,
is a form of constitutional relief. family, home and correspondence
of the aggrieved party.
WHO MAY FILE THE PETITION
By the party for whose relief it is (In order): (In order):

intended, or by some person on his
behalf. a) Any member of the immediate a) Any member of the immediate
family: spouse, children and family: spouse, children and
parents of the aggrieved party; parents of the aggrieved party;
b) Any ascendant, descendant or b) Any ascendant, descendant or

collateral relative of aggrieved collateral relative of aggrieved
party within the 4th civil degree party within the 4th civil degree
of consanguinity or affinity; of consanguinity or affinity.
c) Any concerned citizen,

organization, association or
institution, if no known member
of the immediate family.
d) Filing by the aggrieved party

suspends the right of all other
authorized persons to file such
petition.
WHERE TO FILE THE PETITION

● RTC (where detainee is ● SC, CA and Sandiganbayan; ● SC, CA and and

detained) Sandiganbayan;
● RTC of the place where the
○ enforceable within its threat, act or omission was ● RTC:
area of jurisdiction. committed or any of its
elements occurred. 1. Where petitioner resides; or
● CA or SC 2. Where respondent resides;
3. Which has jurisdiction over
○ enforceable anywhere Writ is enforceable anywhere in the the place where data or
in the Philippines Philippines. information is gathered, etc.
★ All at the option of the

petitioner.
Writ is also enforceable anywhere in

the Philippines.
Petitioner is exempted to pay docket Indigent petitioner is exempted to

and other lawful fees. pay docket and other lawful fees.
WHEN ISSUED
Forthwith when a petition therefor is Immediately if on its face it ought to Immediately if on its face it ought to
presented and it appears that the be issued; Served immediately; be issued; Served within 3 days
writ ought to issue. Summary hearing set not later than from issuance; Summary hearing set
seven (7) days from date of issuance not later than ten (10) work days
from date of issuance.
CONTENTS OF VERIFIED PETITION
a) That the person in whose behalf a) Personal circumstances of a) Personal circumstances of

the application is made is petitioner and of respondent petitioner and respondent;
imprisoned or restrained of his responsible for the threat, act or
liberty; omission; b) The manner the right to privacy
is violated or threatened and
b) The officer or name of the b) Violated or threatened right to how it affects the right to life,
person by whom he is so life, liberty and security of liberty or security of aggrieved
imprisoned or restrained; or, if aggrieved party, and how party;
both are unknown or uncertain, committed with attendance
such officer or person may be circumstances detailed in c) Actions and recourses taken by
described by an assumed supporting affidavits; petitioner to secure the data or
appellation, and the person who information;
is served with the writ shall be c) Investigation conducted,
deemed the person intended; specifying names, personal d) Location of files, registers or
circumstances and addresses of databases, government office,
c) The place where he is so investigating authority or and the person in charge, in
imprisoned or restrained, if individuals, as well as manner possession or in control of the
known; and conduct of investigation data or information, if known;
together with any report;
d) A copy of the commitment or e) Reliefs prayed for, which may
cause of detention of such d) Actions and recourses taken by include the updating,
person, if it can be procured petitioner to determine the fate rectification, suppression or
without impairing the efficiency or whereabouts of aggrieved destruction of the database or
of the remedy; or, if the party and identity of person information or files kept by
imprisonment or restraint is responsible for the threat, act or respondent;
without any legal authority, such omission; and
fact shall appear. f) In case of threats, relief may
e) The relief prayed for. include a prayer for an order
enjoining the act complained of;
f) May include general prayer for and

other just and equitable reliefs. g) Such other reliefs that are just
and equitable.
CONTENTS OF RETURN
a) Whether he has or has not the Within 72 hours after service of the a) Lawful defenses such as
party in his custody or power, or writ, respondent shall file a verified national security, state secrets,
under restraint; written return together with the privileged communications,
supporting affidavits, which shall confidentiality of source of
b) If he has the party in his contain: information;
custody or power, or under
restraint, the authority and the a) Lawful defenses; b) Disclosure of data/info about
true and whole cause thereof, petitioner, nature of data/info,
set forth at large, with a copy of b) Steps or actions taken to purpose of collection;
the writ, order, execution, or determine whereabouts of
other process, if any, upon aggrieved party; c) Steps or actions taken by
which the party is held; respondent to ensure security
c) All relevant information and confidentiality of data or
c) If the party is in his custody or pertaining to threat, act or information;
power or is restrained by him, omission against aggrieved
and is not produced, particularly party; d) Currency and accuracy of data
the nature and gravity of the or information;
sickness or infirmity of such d) If respondent is a public official
party by reason of which he or employee, further state: e) Other allegations relevant to
cannot, without danger, be resolution of the proceedings.
brought before the court or 1. verify the identity of
aggrieved; ★ A general denial of the allegations
judge;
in the petition is not allowed.
d) If he has had the party in his 2. recover and preserve
custody or power, or under evidence related to death or
restraint, and has transferred disappearance of person
such custody or restraint to identified in petition;
another, particularly to whom, at
3. identify witnesses and their
what time, for what cause, and
statements;
by what authority such transfer
was made. 4. Determine cause, manner,
location and time of death
or disappearance as well as
pattern or practice;
5. identify and apprehend

person/s involved in the
death/disappearance;
6. Bring suspected offenders

before a competent court.
FILING OF RETURN
Signed and shall also be sworn to if Verified written return within 5 work Verified written return within 5 days
the prisoner is not produced days from service of writ from service of writ
➢ cannot be extended except ➢ may be reasonably

on highly meritorious extended by the court for
grounds justifiable grounds
EFFECT OF FAILURE TO FILE RETURN
The court, justice or judge shall The court, justice or judge shall
proceed to hear the petition ex proceed to hear the petition ex
parte. parte, granting the petitioner such

relief as the petition may warrant

unless the court in its discretion
requires petitioner to submit
evidence.
PROCEDURE FOR HEARING
The hearing on the petition shall be The hearing on the petition shall be
summary. However the court, justice summary. However the court, justice
or judge may call for a preliminary or judge may call for a preliminary
conference to simplify the issues conference to simplify the issues
and determine the possibility of and determine the possibility of
obtaining stipulations and obtaining stipulations and
admissions from the parties. admissions from the parties.
The hearing shall be from day to day
until completed and given the same
priority as petitions for habeas
corpus.
PROHIBITED MOTIONS/PLEADINGS
a) Motion to Dismiss a) Motion to Dismiss
b) Motion for extension of time to b) Motion for extension of time to

file return, opposition, affidavit, file return, opposition, affidavit,
position paper and other position paper and other
pleadings; pleadings;
c) Dilatory motion for c) Dilatory motion for

postponement; postponement;
d) Motion for a bill of particulars; d) Motion for a bill of particulars;
e) Counterclaim or cross-claim; e) Counterclaim or cross-claim;
f) Third-party complaint; f) Third-party complaint;
g) Reply; g) Reply;
h) Motion to declare respondent in h) Motion to declare respondent in

default; default;
i) Intervention; i) Intervention;
j) Memorandum; j) Memorandum;
k) Motion for reconsideration of k) Motion for reconsideration of

interlocutory orders or interim interlocutory orders or interim
relief orders; and relief orders; and
l) Petition for certiorari, l) Petition for certiorari,

mandamus or prohibition mandamus or prohibition
against any interlocutory order. against any interlocutory order.
INTERIM RELIEFS
1) Temporary Protection Order –

protected in a government
agency of by an accredited
person or private institution
capable of keeping and

securing their safety;
2) Inspection Order – with a

lifetime of 5 days which may be
extended, may be opposed on
the ground of national security
or privileged information, allows
entry into and inspect, measure,
survey or photograph the
property;
3) Production Order – to require

respondents to produce and
permit inspection, copying or
photographing of documents,
papers, books, accounts,
letters, photographs, objects or
tangible things that contain
evidence.
4) Witness Protection Order – the

court may refer the witnessed to
the DOJ
EFFECT OF FILING A CRIMINAL ACTION
A criminal action first filed excludes A criminal action first filed excludes
the filing of the writ; relief shall be by the filing of the writ; relief shall be by
motion in the criminal case. A motion in the criminal case; A
criminal case filed subsequently criminal case filed subsequently
shall be consolidated with the shall be consolidated with the
petition for the writ of amparo. petition for the writ of habeas data.
JUDGMENT
When the court or judge has The court shall render judgment The court shall render judgment
examined into the cause of caption within 10 days from the time the within 10 days from the time the
and restraint of the prisoner, and is petition is submitted for decision. If petition is submitted for decision. If
satisfied that he is unlawfully the allegations in the petition are the allegations are proven by
imprisoned or restrained, he shall proven by substantial evidence, the substantial evidence, the court shall
forthwith order his discharge from court shall grant the privilege of the enjoin the act complained of, or the
confinement, but such discharge writ and such reliefs as may be deletion, destruction, or rectification
shall not be effective until a copy of proper and appropriate; otherwise, of the erroneous data or information
the order has been served on the the privilege shall be denied. and grant other reliefs as may be
officer or person detaining the just and equitable; otherwise the
prisoner. If the officer or person privilege shall be denied.
detaining the prisoner does not
desire to appeal, the prisoner shall
be forthwith released.
APPEAL
An appeal in habeas corpus cases Rule 45 by petition for review on Any party may appeal the decision
shall be perfected by filing with the certiorari with peculiar features: within 5 working days from the final
clerk of court or the judge, within 48 judgment or order to the SC by way
hours from notice of judgment, a 1. Appeal may raise questions of Petition for Review on Certiorari
notice of appeal. of fact or law or both; under Rule 45 on pure questions of
law and facts or both, to be given
A writ of habeas corpus does not lie 2. Period of appeal shall be 5 the same priority as habeas corpus
where petitioner has the remedy of working days from the date and amparo cases.

appeal or certiorari because it will of notice of the adverse

not be permitted to perform the judgment;
functions of a writ of error or appeal
for the purpose of reviewing mere 3. Same priority as habeas
errors or irregularities in the corpus cases.
proceedings of a court having
jurisdiction over the person and the
subject matter.
J. Rules of Procedure on Environmental Cases 2. Writ of continuing mandamus

(A.M. No. 09-6-8-SC)
Continuing mandamus is a writ issued by a court in an
1. Temporary Environmental Protection Order environmental case directing any agency or
(TEPO) instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final
Temporary Environmental Protection Order (TEPO) judgment which shall remain effective until judgment
refers to an order issued by the court directing or is fully satisfied.
enjoining any person or government agency to
perform or desist from performing an act in order to Grounds for continuing mandamus
protect, preserve or rehabilitate the environment.
1) When any agency or instrumentality of the
Issuance government or officer thereof unlawfully
neglects the performance of an act which the
If it appears from the verified complaint with a prayer law specifically enjoins as a duty resulting
for the issuance of an Environmental Protection Order from an office, trust or station in connection
(EPO) that the matter is of extreme urgency and the with the enforcement or violation of an
applicant will suffer grave injustice and irreparable environmental law rule or regulation or a right
injury, the executive judge of the multiplesala court therein;
before raffle or the presiding judge of a single-sala
court as the case may be, may issue ex parte a TEPO 2) When any agency or instrumentality of the
effective for only seventy-two (72) hours from date of government or officer thereof unlawfully
the receipt of the TEPO by the party or person excludes another from the use or enjoyment
enjoined. Within said period, the court where the case of such right.
is assigned, shall conduct a summary hearing to
determine whether the TEPO may be extended until Requisites continuing mandamus
the termination of the case.
a) There must be a clear legal right or duty;
The court where the case is assigned, shall
periodically monitor the existence of acts that are the b) The act to be performed must be practical;
subject matter of the TEPO even if issued by the
executive judge, and may lift the same at any time as c) Respondent must be exercising a ministerial
circumstances may warrant. duty;
d) The duty or act to be performed must be in

The applicant shall be exempted from the posting of a
connection with the enforcement or violation
bond for the issuance of a TEPO.
of an environmental law, rule or regulation or a
right; and
Dissolution
e) There is no other plain, speedy, and adequate
The grounds for motion to dissolve a TEPO shall be
remedy in the ordinary course of law.
supported by affidavits of the party or person enjoined
which the applicant may oppose, also by affidavits. The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
The TEPO may be dissolved if it appears after hearing
actionable neglect or omission occurred or with the
that its issuance or continuance would cause
Court of Appeals or the Supreme Court. The petitioner
irreparable damage to the party or person enjoined
shall be exempt from the payment of docket fees.
while the applicant may be fully compensated for such
damages as he may suffer and subject to the posting
If warranted, the court shall grant the privilege of the
of a sufficient bond by the party or person enjoined.
writ of continuing mandamus requiring respondent to
perform an act or series of acts until the judgment is

fully satisfied and to grant such other reliefs as may be who shall retain a copy on which to make a return of
warranted resulting from the wrongful or illegal acts of service.
the respondent. Upon full satisfaction of the judgment,
a final return of the writ shall be made to the court by In case the writ cannot be served personally, the rule
the respondent. If the court finds that the judgment on substituted service shall apply.
has been fully implemented, the satisfaction of
judgment shall be entered in the court docket. DISCOVERY MEASURES
The issuance of a TEPO is made available as an A party may file a verified motion for the following
auxiliary remedy prior to the issuance of the writ itself. reliefs:
As a special civil action, the WCM may be availed of
to compel the performance of an act specifically 1) Ocular Inspection - The motion must show
enjoined by law. Its availability as a special civil action that an ocular inspection order is necessary to
likewise complements its role as a final relief in establish the magnitude of the violation or the
environmental civil cases and in the WOK, where threat as to prejudice the life, health or
continuing mandamus may likewise be issued should property of inhabitants in two or more cities or
the facts merit such relief. provinces. It shall state in detail the place or
places to be inspected. It shall be supported
3. Writ of kalikasan by affidavits of witnesses having personal
knowledge of the violation or threatened
violation of environmental law.
The writ is a extraordinary remedy available to a
natural or juridical person, entity authorized by law, After hearing, the court may order any person
people’s organization, non-governmental organization, in possession or control of a designated land
or any public interest group accredited by or or other property to permit entry for the
registered with any government agency, on behalf of purpose of inspecting or photographing the
persons whose constitutional right to a balanced and property or any relevant object or operation
healthful ecology is violated, or threatened with thereon. The order shall specify the person or
violation by an unlawful act or omission of a public persons authorized to make the inspection
official or employee, or private individual or entity, and the date, time, place and manner of
involving environmental damage of such magnitude as making the inspection and may prescribe
to prejudice the life, health or property of inhabitants other conditions to protect the constitutional
in two or more cities or provinces. rights of all parties.
Those who may file for this remedy must represent the 2) Production or inspection of documents or
inhabitants prejudiced by the environmental damage things - The motion must show that a
subject of the writ to be filed with the SC or CA. The production order is necessary to establish the
applicant is exempted from payment of docket fees. magnitude of the violation or the threat as to
prejudice the life, health or property of
Where to file inhabitants in two or more cities or provinces.
The petition shall be filed with the Supreme Court or After hearing, the court may order any person
with any of the stations of the Court of Appeals. in possession, custody or control of any
designated documents, papers, books,
Issuance of the Writ accounts, letters, photographs, objects or
tangible things, or objects in digitized or
Within three (3) days from the date of filing of the electronic form, which constitute or contain
petition, if the petition is sufficient in form and evidence relevant to the petition or the return,
substance, the court shall give an order issuing the to produce and permit their inspection,
writ and requiring the respondent to file a verified copying or photographing by or on behalf of
return as provided in Section 8 of this Rule. the movant. The production order shall specify
the person or persons authorized to make the
The clerk of court shall forthwith issue the writ under production and the date, time, place and
the seal of the court including the issuance of a cease manner of making the inspection or
and desist order and other temporary reliefs effective production and may prescribe other
until further order. conditions to protect the constitutional rights
of all parties.
How the Writ is Served
JUDGMENT
The writ shall be served upon the respondent by a
court officer or any person deputized by the court, Within sixty (60) days from the time the petition is

submitted for decision, the court shall render

judgment granting or denying the privilege of the writ
of kalikasan.
Period to appeal from the judgment — Within fifteen

(15) days from the date of notice of the adverse
judgment or denial of motion for reconsideration, any
party may appeal to the Supreme Court under Rule 45
of the Rules of Court. The appeal may raise questions
of fact.
Separate actions filed after the filing of a petition

for issuance of writ of kalikasan — The filing of a
petition for the issuance of the writ of kalikasan shall
not preclude the filing of separate civil, criminal or
administrative actions.

cannot also be lost by a new law amending the rules

VI. CRIMINAL PROCEDURE
of jurisdiction.
A. General matters EXCEPTION: When statute expressly provides, or is

1. Criminal jurisdiction; concept and requisites for construed to the effect that it is intended to operate
exercise upon actions pending before its enactment.
REQUISITES FOR EXERCISE OF CRIMINAL 2. Jurisdiction over the Territory

JURISDICTION
It is a fundamental rule that for jurisdiction to be
1. Jurisdiction over Subject Matter acquired by courts in criminal cases, the offense
should have been committed or any one of its
2. Jurisdiction over the Territory essential ingredients took place within the territorial
jurisdiction of the court.
3. Jurisdiction over the Person of the accused
It is doctrinal that in criminal cases, venue is an
1. Jurisdiction over Subject Matter essential element of jurisdiction, and that the
jurisdiction of a court over a criminal case is
The jurisdiction of courts in criminal cases is determined by the allegations in the complaint or
determined by the allegations of the complaint or information.
information and not by the findings the court may
make after the trial. In all criminal prosecutions, the action shall be
instituted and tried in the court of the municipality or
It cannot be waived. territory wherein the offense was committed or where
any of the essential ingredients took place. Hence, if
Jurisdiction over the subject matter is determined by any one of these elements is proven to have occurred,
the statute in force at the time of the commencement let us say, in Pasay City, the proper court in that city
of the action and not at the time of its commission has jurisdiction (Barrameda v. Court of Appeals)
even if the penalty that may be imposed at the time of
its commission is less and does not fall under the The concept of venue in actions in criminal cases,
court's jurisdiction. unlike in civil cases, is jurisdictional.
In determining whether or not the court has When a court has jurisdiction to try offenses not
jurisdiction over an offense, we consider the penalty committed within its territorial jurisdiction
which may be imposed upon the accused and not the
actual penalty imposed after the trial. 1) Where the offense was committed under the
circumstances enumerated in Art. 2 of the
Q: Is jurisdiction by estoppel applicable in criminal Revised Penal Code, the offense is cognizable
cases? before Philippine courts even if committed
outside of the territory of the Philippines.
➔ A: YES. It was only after appellants had filed
their brief that appellee, in its brief, raised the 2) Where the Supreme Court orders a change of
issue of the belated appeal and, inferentially, venue or place of trial to avoid a miscarriage
the lack of appellate jurisdiction of this Court of justice.
in this case. However, the principle of
estoppel by laches to bar attacks on 3) Where an offense is committed in a train,
jurisdiction has been adopted and repeatedly aircraft, or other public or private vehicle in the
applied by this Court, notably in Tijam, et al. course of its trip, the criminal action may be
vs. Sibonghanoy, et al., and in several cases instituted and tried in the court of any
which followed thereafter, including criminal municipality or territory where said train,
cases (People vs. Regalario, 1993) aircraft, or vehicle passed during its trip.
Principle of adherence of jurisdiction or continuing 4) Where an offense is committed on board a

jurisdiction vessel in the course of its voyage, the criminal
action may be brought and tried in the court
Once a court has acquired jurisdiction, that jurisdiction of the first port of entry, or in the municipality
continues until the court has done all that it can do in or territory where the vessel passed during the
the exercise of that jurisdiction. The jurisdiction once voyage.
vested, cannot be withdrawn or defeated by a
subsequent valid amendment of the information. It 5) Where the case is cognizable by the
Sandiganbayan, the offense may be tried in

Quezon City. restraint on the person, who is thereby deprived of his

own will and liberty, binding him to become obedient
6) Where the offense is written defamation: to the will of the law. Custody of the law is literally
custody over the body of the accused. It includes, but
■ Public official or private person - RTC is not limited to, detention.
of province where the libelous article
is printed and first published. As a general rule, one who seeks an affirmative relief
is deemed to have submitted to the jurisdiction of the
■ Private Individual - RTC where he court. There is an exception to the rule that filing
actually resided at the time of the pleadings seeking affirmative relief constitutes
commission of the offense voluntary appearance, and the consequent
submission of one’s person to the jurisdiction of the
■ Public Officer whose office is at court. This is in the case of pleadings whose prayer is
manila at the time of the commission - precisely for the avoidance of the jurisdiction of the
RTC of Manila court, which only leads to a special appearance.
These pleadings are: (1) in civil cases, motions to
■ Public officer holding office outside of dismiss on the ground of lack of jurisdiction over the
Manila - RTC of province or city where person of the defendant, whether or not other grounds
he held office. for dismissal are included; (2) in criminal cases,
motions to quash a complaint on the ground of lack of
3. Jurisdiction over the Person of the accused jurisdiction over the person of the accused; and (3)
motions to quash a warrant of arrest. The first two are
Jurisdiction over the person of the accused is consequences of the fact that failure to file them
acquired upon his arrest or apprehension or his would constitute a waiver of the defense of lack of
voluntary appearance or submission to the jurisdiction jurisdiction over the person. The third is a
of the court. consequence of the fact that it is the very legality of
the court process forcing the submission of the
Miranda v. Tuliao (2006) person of the accused that is the very issue in a
motion to quash a warrant of arrest.
The voluntary appearance of the accused, whereby
the court acquires jurisdiction over his person, is 2. When injunction may be issued
accomplished either by his pleading to the merits
(such as by filing a motion to quash or other pleadings As a general rule, the Court will not issue writs of
requiring the exercise of the court’s jurisdiction prohibition or injunction preliminary or final, to enjoin
thereover, appearing for arraignment, entering trial) or or restrain, criminal prosecution. With more reason
by filing bail. On the matter of bail, since the same is that injunction will not lie when the case is still at the
intended to obtain the provisional liberty of the stage of preliminary investigation or reinvestigation.
accused, as a rule the same cannot be posted before
custody of the accused has been acquired by the EXCEPTIONS:
judicial authorities either by his arrest or voluntary
surrender. 1. Necessary to afford adequate protection to
constitutional rights
Custody of the law is required before the court can act
upon the application for bail, but is not required for the 2. Necessary for the orderly administration of
adjudication of other reliefs sought by the defendant justice
where the mere application therefor constitutes a
waiver of the defense of lack of jurisdiction over the 3. Prejudicial question which is subjudice
person of the accused. Custody of the law is
accomplished either by arrest or voluntary surrender, 4. Acts of officer are without or in excess of
while jurisdiction over the person of the accused is authority
acquired upon his arrest or voluntary appearance. One
can be under the custody of the law but not yet 5. Prosecution is under an invalid law, ordinance
subject to the jurisdiction of the court over his person, or regulation
such as when a person arrested by virtue of a warrant
files a motion before arraignment to quash the 6. Double jeopardy is clearly apparent
warrant. On the other hand, one can be subject to the
jurisdiction of the court over his person, and yet not 7. Court has no jurisdiction over the offense
be in the custody of the law, such as when an
accused escapes custody after his trial has 8. A case of persecution rather than prosecution
commenced. Being in the custody of the law signifies

9. Charges are manifestly false and motivated by information.

the lust for vengeance
The institution of criminal action shall interrupt the
10. There is clearly no prima facie case against period of prescription of offense charged, unless
the accused and a motion to quash on that otherwise provided in special law. (Sec. 1, Rule 110)
ground has been denied.
For Special Laws and Ordinance, the prescription shall
NOTE: Mandamus is not available to compel be interrupted when proceedings are instituted against
prosecution because it is under the discretion of the the guilty person, and shall begin to run again if the
prosecutor to prosecute. proceedings are dismissed for reasons not
constituting jeopardy. (Section 2, Act No. 3326)
B. Prosecution of offenses (Rule 110) The ruling in Zaldivia vs. Reyes is not anymore
controlling in special laws.
CRIMINAL ACTION, HOW INSTITUTED
NEW RULE: There is no more distinction between
cases under the RPC and those covered by special
A preliminary investigation is to be conducted for
laws with respect to the interruption of the period of
offenses where the penalty prescribed by law is at
prescription. (People v. Pangilinan, 672 SCRA 105)
least four (4) years, two (2) months and one (1) day.
(Sec. 1, Rule 112)
However, with respect to ordinances, Act 3326 still
applies. The prescription shall be interrupted when
Institution of a criminal action generally depends upon
proceedings are instituted against the guilty person.
whether or not the offense is one which requires a
preliminary investigation:
WHO MUST PROSECUTE THE CRIMINAL ACTION
a) Preliminary investigation is required – a
criminal action is instituted by filing the All criminal actions, either commenced by complaint
complaint with the proper officer for the or by information, shall be prosecuted under the
purpose of conducting the requisite direction and control of the public prosecutor.
preliminary investigation (Sec. 1, Rule 110)
Even if there is a private prosecutor, the criminal
b) Preliminary investigation is NOT required – action is still prosecuted under the direction and
a criminal action is instituted by: control of the public prosecutor.
i) filing the complaint or information The appointment of a private prosecutor is done by

directly with the Municipal Trial Court the offended party and is allowed only where the civil
and Municipal Circuit Trial Court; or action for the recovery of the civil liability is instituted
in the criminal action. Hence the offended party may
ii) filing the complaint with the office of not intervene if he waives, reserves or institutes civil
the prosecutor. action prior to the criminal action.
For Metro Manila and other chartered cities, the The public prosecutor, in the exercise of his
complaint shall be filed with the prosecutor regardless functions, has the power and discretion to:
of the imposable penalty.
1. Determine whether a prima facie case exists.
There is no direct filing of an information or complaint
with the Regional Trial Court under Rule 110 because 2. Decide which of the conflicting testimonies
its jurisdiction covers offenses which require should be believed
preliminary investigation.
3. Determine which witnesses shall be presented
There is likewise no direct filing with the MeTC in Court
because in Manila, including other chartered cities, the
complaint shall be filed with the office of the 4. Determine what to charge
prosecutor, unless otherwise provided by their
charters. 5. Determine whom to charge
When is the prescriptive period interrupted? The public prosecutor may turn over the actual
prosecution of the criminal case to the private
For crimes covered by RPC, the prescription shall be prosecutor, in the exercise of his discretion, but he
interrupted by the filing of the complaint or may at any time, take over the actual conduct of the

trial. person with an offense subscribed by the prosecutor

and filed with the court. (Sec. 4, Rule 110)
Q: May a private prosecutor prosecute a case even
in the absence of the public prosecutor?
COMPLAINT INFORMATION
➔ A: YES. In case of heavy work schedule of the
Must be “sworn” hence, requires no oath.
public prosecutor or in the event of lack of
under oath.
public prosecutors, the private prosecutor
may be authorized in writing by the Chief of subscribed by: subscribed by the
the Prosecution Office or the Regional State a) the offended party, prosecutor.
Prosecutor to prosecute the case subject to b) any peace officer,
the approval of the court. Once so authorized c) or other public
to prosecute the criminal action, the private officers charged
prosecutor shall continue to prosecute the with the
case up to end of the trial even in the absence enforcement of the
of a public prosecutor, unless the authority is law violated.
revoked or otherwise withdrawn (Sec. 5, Rule
110)
Q: Is the trial court divested of its jurisdiction over
PROSECUTION OF PRIVATE CRIMES the person of the accused and over the offense
charged if the Information filed by the investigating
prosecutor does not bear the imprimatur because
➔ The crimes of adultery and concubinage shall of the absence on its face of both the word
not be prosecuted except upon a complaint filed "approved" and the signature of the authorized
by the offended spouse (Sec. 5, Rule 110) The officer such as the provincial, city or chief state
prosecutor cannot prosecute the case where no prosecutor?
complaint is filed by the offended spouse.
➔ A: NO. The handling prosecutor's authority,
The offense of adultery and concubinage may not particularly as it does not appear on the face
be instituted if it is shown that the offended party of the Information, has no connection to the
has consented to the offense or has pardoned the trial court's power to hear and decide a case.
offenders. Hence, Sec. 3(d), Rule 117, requiring a
handling prosecutor to secure a prior written
➔ The offenses of seduction, abduction and acts authority or approval from the provincial, city
of lasciviousness shall not be prosecuted except or chief state prosecutor before filing an
upon a complaint filed by the offended party or Information with the courts, may be waived by
her parents, grandparents or guardian, nor, in any the accused through silence, acquiescence,
case, if the offender has been expressly pardoned or failure to raise such ground during
by any of them. The state shall initiate if the arraignment or before entering a plea. If, at all,
offended party dies or becomes incapacitated and such deficiency is merely formal and can be
she has no known parents, grandparents or cured at any stage of the proceedings in a
guardian. criminal case.
Minor has the right to initiate the prosecution It is sufficient for the validity of the Information
independently of her parents, grandparents or or Complaint, as the case may be, that the
guardian EXCEPT if she is incompetent or Resolution from which the Information
incapable of doing so. If a minor fails to file, her stemmed bears the approval and signature of
parents, grandparents or guardian may file. the provincial, city or chief state prosecutor
whose approval is required. (Villa-Gomez vs.
➔ The criminal action for defamation under the rule People)
shall be brought only by the offended party.
Villa-Gomez vs. People (2020)
COMPLAINT AND INFORMATION
In previous cases, the handling prosecutor’s lack of
A complaint is a sworn written statement charging a authority was considered a jurisdictional infirmity since
person with an offense, subscribed by the offended it supposedly resulted to lack of jurisdiction over the
party, any peace officer, or other public officer offense charged and over the person of the accused.
charged with the enforcement of the law violated In Villa-Gomez, the Supreme Court explained its
(Section 3, Rule 110) misgivings on how a handling prosecutor’s lack of
authority will divest the trial court of its jurisdiction
An information is an accusation in writing charging a over the offense charged and over the person of the

accused. or by the specification of the provision

of law alleged to have been violated.
Firstly, there is no law that requires that an Information The crime committed is determined
filed must be signed by the provincial, city, or chief by the recital of the ultimate facts and
state prosecutor in order for trial courts to acquire circumstances in the complaint or
jurisdiction over a criminal case. Only a law may information.
confer jurisdiction to courts of law. Once jurisdiction is
conferred, the jurisdiction does not cease simply ■ The specific acts of the accused do
because the prosecutor who filed the Information had not have to be described in detail in
no authority. At worst, the absence of authority on the the information as it is enough that the
part of the prosecutor who filed the Information only offense be described with sufficient
gives rise to a question on his standing in court. particularity to make sure the accused
fully understands what he is being
Secondly, this defect (which is just a formal defect not charged with.
a jurisdictional defect) must be raised by the Accused
prior to entering his or her plea. Once a plea is made, ■ The facts constituting the aggravating
any defect in the Information is deemed waived and qualifying circumstance must be
except those that pertain to Sections 3a (facts alleged and specified in the
charged do not constitute an offense), 3b (lack of information. The allegation that there
jurisdiction over the offense), 3g (prescription), and 3i the commission of the crime is
(double jeopardy) of Rule 117 of the Rules of Court. attendant with aggravating and
qualifying is not enough.
3) Acts or omissions complained of as

SUFFICIENCY OF COMPLAINT OR INFORMATION
constituting the offense;
A complaint or an information is deemed sufficient if it 4) Name of the offended party;

contains the following: (NANDP)
5) approximate Date of the commission of the
1) The Name of the accused; offense;
■ If he cannot be ascertained, he must ■ It is not necessary to state the precise

be described under a fictitious name date of the offense except when the
accompanied by the statement that date of commission of the crime is
his true name is unknown. material element of the offense, such
as infanticide.
■ If later his true name is disclosed by
him or becomes known in some other 6) Place where the offense was committed.
manner, his true name shall be
inserted in the complaint or Objections relating to the form of the complaint or
information and in the records of the information cannot be made for the first time on
case appeal. The accused-appellant should have moved
before arraignment either for a bill of particulars or for
■ A mistake in the name of the accused the quashal of the information. Otherwise, waived.
is not equivalent, and does not
necessarily amount to, a mistake in
People v. Solar (2019)
the identity of the accused especially
when sufficient evidence is adduced
The SC has laid down the guidelines that prosecutors
to show that the accused is pointed to
must follow in order to ensure that the right of the
as one of the perpetrators of the crime
accused to be informed of the nature and cause of the
However, the identity of the accused
accusations:
must be proven.
1. The information must state the “ultimate facts”
2) The Designation of the offense given by
that constitute qualifying or aggravating
statute;
circumstances, or include references to the
pertinent portions of the resolution on probable
■ The failure to specify the correct crime
cause. Otherwise, it may be subject to a motion to
committed will not bar conviction of
quash, although a waiver of this remedy would
an accused. The character of the
allow the aggravating circumstances to be
crime is not determined by the
appreciated by the court.
caption or preamble of the information

2. Prosecutors must attach to the information the accused and during the trial, any formal
resolution finding probable cause against the amendment may only be made under two
accused, in compliance with Section 8(a), Rule conditions:
112 of the Revised Rules on Criminal Procedure.
a. Leave of court must be secured; and
3. Cases that attained finality prior to the
promulgation of these guidelines would remain b. The amendment does not cause
final by virtue of the principle of conclusiveness of prejudice to the rights of the accused.
judgment.
★ An amendment in substance is, as a rule,
4. For pending cases, the prosecution may file a clearly not allowed at this stage.
motion to amend the information to properly state
the aggravating or qualifying circumstances if they Ricarze v. Court of Appeals (2007)
are still able to.
An amendment to an information which does not
5. For cases in which judgment is already rendered change the nature of the crime alleged therein, does
but is pending appeal, these would be judged by not affect the essence of the offense, or cause
the appellate court depending on whether the surprise, or deprive the accused of an opportunity to
accused has waived his right to question the meet the new averment had each been held to be one
defect. of form and not of substance.
The following have been held to be mere formal

DUPLICITY OF THE OFFENSE amendments:
1) new allegations which relate only to the range of

The general rule is that a complaint or an information
the penalty that the court might impose in the
must charge only one offense. More than one offense
event of conviction;
may however, be charged when the law prescribes a
single punishment for various offenses. 2) an amendment which does not charge another
offense different or distinct from that charged in
Failure of the accused to interpose an objection on the the original one;
ground of duplicity of the offenses charged in the
information constitutes waiver. 3) additional allegations which do not alter the
prosecution’s theory of the case so as to cause
When two or more offenses are charged in a single surprise to the accused and affect the form of
complaint or information, the accused must object to defense he has or will assume;
such fact before trial. If he does not so object, the
court may convict him of as many offenses as are 4) an amendment which does not adversely affect
charged and proved, and impose on him the penalty any substantial right of the accused; and
for each offense.
5) an amendment that merely adds specifications to
AMENDMENT OF THE INFORMATION OR eliminate vagueness in the information and not to
COMPLAINT introduce new and material facts, and merely
states with additional precision something which
is already contained in the original information and
1. If the amendment is made before the accused
which adds nothing essential for conviction for the
enters his plea, the complaint or information may
crime charged.
be amended in form or in substance, without the
need for leave of court.
Q: When is formal amendment prejudicial to the
2. Leave of court is required even if made before accused?
plea if:
➔ A: Whether the defense under the original
a. Amendment downgrades the nature information will not anymore be available after
of the offense charged, or the amendment is made and if any evidence
that an accused might offer is not anymore
b. Amendment excludes any accused
applicable after amendment, the amendment
from the complaint or information.
will prejudice the rights of the accused.
(Corpus, Jr. v. Pamular)
★ Notice to the offended party and motion by
the prosecutor are required.
3. If the amendment is made after the plea of the

SUBSTITUTION OF COMPLAINT OR crime or ex delicto. Thus, this type of civil liability

INFORMATION cannot proceed independently from the criminal
action. However, its institution and prosecution may
be reserved.
A complaint or information may be substituted if it
appears at any time before judgment that a mistake
has been made in charging the proper offense. In such RESERVATION OF THE CIVIL ACTION
a case, the court shall dismiss the original complaint
or information once the new one charging the proper If the offended party desires to reserve the right to
offense is filed provided the accused will not be institute the civil action after the criminal action has
placed in double jeopardy. (Sec. 14, Rule 110) been instituted, the reservation shall be made before
the prosecution starts presenting its evidence. The
reservation is to be made under circumstances that
AMENDMENT SUBSTITUTION
would afford the offended party a reasonable
opportunity to make such reservation.
May involve either formal Involves substantial
or substantial changes change from the original
No reservation of the civil action in BP 22
charge.
Amendment before the It must be with leave of The criminal action in BP 22 shall be deemed to
plea is entered can be court as the original include the corresponding civil action. No reservation
effected without leave of information has to be to file such civil action separately shall be allowed.
court. dismissed.
It should be observed that what the rule prohibits is
An amendment as to Substitution of the the filing of a reservation to file the civil action arising
form will not require information entails from BP 22. It does not prohibit the waiver of the civil
another preliminary another preliminary action or the institution of the civil action prior to the
investigation and investigation and plea to criminal action.
retaking of plea of the the new information.
accused. Upon the filing of the joint and civil actions, the
offended party shall pay in full the filing fees based on
Refers to the same Requires that the new the amount of the check involved. This amount shall
offense charged in the information involves a also be considered as the actual damages claimed.
original complaint or to different offense which
an offense which is does not include or is When the separate civil action is suspended
necessarily included. not necessarily included
in the original charge. After the criminal action is commenced, the separate
Substantial amendments civil action arising therefrom cannot be instituted until
to the information after final judgment has been entered in the criminal action.
the plea has been taken Preference is given to the resolution of the criminal
cannot be made over action.
the objection of the
accused for he may If the civil action was commenced before the
invoke double jeopardy. institution of the criminal action, the civil action shall
be suspended in whatever stage it may be found
before judgment on the merits, once the criminal
C. Prosecution of civil action action is filed. The suspension shall last until final
(Rule 111) judgment is rendered in the criminal action.
General Rule: When a criminal action is instituted, the This rule however, does not apply to independent civil
civil action for the recovery of the civil liability arising actions and covers only civil actions arising from the
from the offense charged shall be deemed instituted offense charged.
with the criminal action.
During the pendency of the criminal action, the
Exception: running of the period of prescription of the civil action
which cannot be instituted separately or whose
1. the offended party waives the civil action, proceeding has been suspended shall be tolled.
2. reserves the right to institute it separately, or
3. institute the civil action prior to criminal action
INDEPENDENT CIVIL ACTIONS
What is deemed instituted with the criminal action is
only the action to recover civil liability arising from The civil actions referred to in Articles 32,33, 34 and
2176 of the Civil Code shall remain "separate, distinct

and independent" of any criminal prosecution which

Accused dies Case shall be dismissed but the
may be based on the same act.
before offended party may file the
arraignment proper civil action against the
The civil actions arising from Articles 2176, 32, 33 and
estate of the deceased.
34 of the Civil Code may be filed independently and
separately from the criminal action because they do
Accused dies Extinguishes his criminal
not arise from the offense charged. What the law
during the liability as well as the civil
proscribes is double recovery.
pendency of his liability based solely thereon.
appeal
The right to bring the foregoing actions based on the
Civil liability predicated from
Civil Code need not be reserved in the criminal
another source survives and
prosecution, since they are not deemed included
may be pursued but only by
therein. The institution or the waiver of the right to file
way of filing a separate civil
a separate civil action arising from the crime charged
action against the executor/
does not extinguish the right to bring an independent
administrator or estate of the
civil action.
accused.
Q: Is counterclaim or cross-claim allowed in
criminal cases? People v. Bayotas (1994)
➔ A: NO. No counterclaim, cross-claim or The death of the accused prior to final judgment
third-party complaint may be filed by the terminates his criminal liability and only the civil
accused in the criminal case, but any cause of liability directly arising from and based solely on the
action which could have been the subject offense committed, i.e., civil liability "ex delicto in
thereof may be litigated in a separate civil senso strictio-re." But the claim for civil liability
action. (Sec. 1, Rule 111) predicated on a source of obligation other than a
delict survives notwithstanding the death of the
Q: Is it required to pay filing fees in criminal cases? accused. This source of obligation may be from law,
contract, quasi-contract or quasi-delict. In other
➔ A: There are no filing fees required for actual words, the civil liability based solely on the criminal
damages claimed unless required by the action is the one that is extinguished.
Rules.
Where the civil liability survives, an action for recovery
In BP 22 and Estafa, filing fees should be filed. therefore may be pursued but only by way of filing a
The filing fees shall be paid based on the separate civil action.The separate civil action may be
amount of the check/amount involved and enforced either against the executor/administrator or
shall be paid in full. the estate of the accused, depending on the source of
obligation upon which the same is based.
Filing fees shall be paid by the offended party
when he seeks moral, nominal, temperate and
EFFECT OF ACQUITTAL OR THE EXTINCTION OF
exemplary damages. If amount is not
THE PENAL ACTION ON THE CIVIL ACTION OR
specified in the complaint but was
CIVIL LIABILITY
subsequently awarded, the filing fees
assessed in accordance with the rules shall
The extinction of the penal action does not carry with
constitute a first lien on the judgment.
it the extinction of the civil action. However, the civil
action based on delict may be deemed extinguished if
EFFECT OF DEATH OF THE ACCUSED ON THE
there is a finding in a final judgment in the criminal
CIVIL ACTION
action that the act or omission from which the civil
liability may arise did not exist.
Accused dies GR: Civil liability arising from
after arraignment the offense committed is Ching v. Nicdao (2007)
and during the EXTINGUISHED.
pendency of the Instances where acquittal in a criminal case does not
criminal action XPN: Independent civil actions result in the extinguishment of civil liability:
and civil liabilities arising from
other sources of obligation may (a) where the acquittal is based on reasonable doubt;
be continued against the estate
or legal representative of the (b) where the court expressly declares that the liability
accused. of the accused is not criminal but only civil in nature;

and acquittal or conviction.
(c) where the civil liability is not derived from or based A petition for suspension of the criminal action based
on the criminal act of which the accused is acquitted. upon the pendency of a prejudicial question in a civil
action may be filed in the office of the prosecutor or
Q: Is a final judgment rendered in the civil case the court conducting the preliminary investigation.
absolving the defendant from civil liability a bar to When the criminal action has been filed in court for
criminal action? trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
➔ A: NO. A final judgment rendered in a civil rests. (Section 6, Rule 111)
action absolving the defendant from civil
liability is not a bar to a criminal action against
the defendant for the same act or omission D. Preliminary Investigation
subject of civil action (Sec. 5, Rule 111) 1. Executive vs. judicial determination
of probable cause
2. Rule 112
PREJUDICIAL QUESTION
Preliminary Investigation is an inquiry or proceeding to
A prejudicial question is an issue involved in a civil determine whether there is sufficient ground to
case which is similar or intimately related to the issue engender a well-founded belief that a crime has been
raised in the criminal action, the resolution of which committed and the respondent is probably guilty
determines whether or not the criminal action may thereof, and should be held for trial. (Section 1, Rule
proceed. 112)
To constitute a prejudicial question, the rule also A preliminary investigation is a mere inquiry or a
requires, aside from the related issues, that the civil proceeding. It is not, therefore, a trial and so does not
action be instituted previously or ahead of the criminal involve the examination of witnesses by way of direct
action. or cross-examinations. Its purpose is not to declare
the respondent guilty beyond reasonable doubt but
ELEMENTS: only to determine first, whether or not a crime has
been committed and second, whether or not the
1) The civil action must be instituted prior to the respondent is "probably guilty" of the crime.
criminal action;
It is merely inquisitorial and a means of determining
2) The civil action involves an issue similar or the persons who may be reasonably charged with a
intimately related to the issue raised in the crime. It is not a trial of the case on the merits.
subsequent criminal action; and
The right to a preliminary investigation is not a
3) The resolution of such issue determines constitutional right. It is a statutory right. Nevertheless,
whether or not the criminal action may it is a component of due process.
proceed. (Sec. 7, Rule 111)
The right to a preliminary investigation may be waived
It must be one civil and one criminal action. Thus, a for failure to invoke the right prior to or at the time of
prejudicial question under Sec. 7 of Rule 111 may not the plea (People v. Gomez)
be invoked in any of the following situations:
a) both cases are criminal, San Agustin vs. People (2004)

b) both civil,
c) both cases are administrative, xxx the absence of a preliminary investigation does
d) one case is administrative and the other civil, not affect the jurisdiction of the trial court but merely
or the regularity of the proceedings. It does not impair
e) one case is administrative and the other the validity of the Information or otherwise render it
criminal. defective. Neither is it a ground to quash the
Information or nullify the order of arrest issued against
The issue that leads to a prejudicial question is one him or justify the release of the accused from
that arises in the civil case and not in the criminal detention. However, the trial court should suspend
case. It is the issue in the civil case which needs to be proceedings and order a preliminary investigation
resolved first before it is determined whether or not considering that the inquest investigation conducted
the criminal case should proceed or whether or not by the State Prosecutor is null and void.
there should be, in the criminal case, a judgment of

Executive Judicial determination When the respondent is

determination of of probable cause arrested under Section 5,
probable cause Rule 113 and undergoing
inquest.
one made by the public One made by the judge
prosecutor during to ascertain whether a
preliminary investigation warrant of arrest should
★ Whether or not there is a need for a preliminary
be issued against the
investigation under Sec. 1 in relation to Sec. 9 of
accused
Rule 112 depends upon the imposable penalty for
Performed by prosecutor Performed by a judge the crime charged in the complaint filed with the
City or Provincial Prosecutor’s office and not upon
For the purpose of filing For the purpose of the imposable penalty for the crime found to have
Information in Court issuing a warrant of been committed by the respondent after a
arrest. preliminary investigation.
Procedure for cases not requiring a preliminary

PROBABLE CAUSE IN PRELIMINARY investigation
INVESTIGATION
There are two ways of initiating a criminal action:
Probable cause pertains to facts and circumstances
sufficient to support a well-founded belief that a crime a) By filing the complaint directly with the
has been committed and the accused is probably prosecutor; or
guilty thereof. b) By filing the complaint or information with the
Municipal Trial Court
Probable cause need not be based on evidence
establishing absolute certainty of guilt. While probable If the judge finds probable cause, he shall issue a
cause demands more than "bare suspicion," it warrant of arrest. If the accused has already been
requires "less than evidence which would justify arrested, the court shall instead issue a commitment
conviction." order.
Q: Is hearsay evidence sufficient to establish When preliminary investigation is not required

probable cause? even if the penalty is at least 4 years, 2 months and
1 day
➔ A: YES. Owing to the initiatory nature of
preliminary investigations, the "technical rules ➔ VALID WARRANTLESS ARREST — If a
of evidence should not be applied" in the person is arrested lawfully without a warrant
course of its proceedings, keeping in mind involving an offense which requires a
that "the determination of probable cause preliminary investigation, an information or
does not depend on the validity or merits of a complaint may be filed against him without
party's accusation or defense or on the need for a preliminary investigation. Inquest
admissibility or veracity of testimonies proceedings are proper only when the
presented." Thus, the Court declared that accused has been lawfully arrested without a
since a preliminary investigation does not warrant.
finally adjudicate the rights and obligations of
parties, "probable cause can be established If he has been arrested in a place where an
with hearsay evidence, as long as there is inquest prosecutor is available, an inquest will
substantial basis for crediting the hearsay. be conducted instead of a preliminary
(Estrada vs. Ombudsman, 2018) investigation. In the absence or unavailability
of an inquest prosecutor, the complaint may
be filed directly with the proper court by the
PRELIMINARY PRELIMINARY offended party or a peace officer on the basis
INVESTIGATION IS INVESTIGATION IS NOT of the affidavit of the offended party or
REQUIRED REQUIRED arresting officer or person.
offenses where the penalty prescribed by law
The accused may ask for PI before the
law prescribes a for the offense is
complaint or information is filed but he must
penalty of at least 4 imprisonment of less
sign a waiver of the provisions of Article 125
years, 2 months and than 4 years, 2 months
of the Revised Penal Code, as amended, in
1 day without regard and 1 day
the presence of his counsel. Nevertheless, if
to the fine
an information or complaint has already been

filed, the person arrested who is now an any, before elevating the matter to the SOJ.
accused, may still ask for a preliminary (Leviste v. Alameda)
investigation within five (5) days from the time
he learns of its filing. ABSENCE OF A PRELIMINARY INVESTIGATION
INQUEST An accused who wants to question the regularity or

absence of a preliminary investigation must do so
An inquest is an investigation conducted by a before he enters his plea.
prosecutor in criminal cases where a person has been
lawfully arrested and detained without a warrant of An application for or admission of the accused to bail
arrest. It is informal and summary and its purpose is to does not bar him from raising such question. (Sec. 26,
determine whether or not the person detained should Rule 114). Failure to invoke the right before entering a
remain under custody and then charged in court. plea will amount to a waiver.
An inquest is not a preliminary investigation. It is a The absence of preliminary investigation does not
summary investigation and which does not follow the affect the court's jurisdiction over the case nor does it
procedures set forth in Sec. 3 of Rule 112 of the Rules impair the validity of the information or otherwise,
of Court. render it defective.
Duty of Inquest Prosecutor A motion to quash is not the proper remedy because
the absence of a preliminary investigation is not one of
➔ Determine if the detained person has been the grounds for a motion to quash under Sec. 3 of
arrested lawfully in accordance with Sec. 5 (a) Rule 117.
and (b), of Rule 113 of the Rules of Court.
It was thus held that if there is no preliminary
➔ Should it be found that the arrest was not investigation and the accused before entering his plea
made in accordance with the Rules of Court, calls the attention of the court to his deprivation of the
the Inquest Prosecutor shall not proceed with required preliminary investigation, the court should not
the inquest proceedings. Instead, he shall dismiss the information. It should remand the case to
recommend the release of the detainee. the prosecutor so that the investigation may be
conducted (Larranaga v. Court of Appeals)
➔ Should it be found that the arrest was properly
effected, the inquest shall proceed but the OFFICERS AUTHORIZED TO CONDUCT
Inquest Officer shall first ask the detained PRELIMINARY INVESTIGATION
person if he desires to avail himself of a
preliminary investigation and if he does, he
a) Provincial or City Prosecutors and their
shall be made to execute a waiver of the
assistants;
provisions of Article 125 of the Revised Penal
Code with the assistance of a lawyer. The b) National and Regional State Prosecutors; and
preliminary investigation may be conducted
by the Inquest Officer himself or by any other c) Other officers as may be authorized by law.
Assistant Prosecutor to whom the case may
be assigned. Other officers authorized by law to conduct PI:
➔ If the Inquest Prosecutor finds that probable d) Comelec has the power to conduct
cause exists, he shall prepare the preliminary investigation of all election
corresponding information with the offenses punishable under OEC.
recommendation that the same be filed in
court. If no probable cause is found, he shall e) Ombudsman has the authority to investigate
recommend the release of the detained and prosecute on its own or on complaint by
person. any person, any act or omission of any public
officer or employee, office or agency, when
Q: Can the accused appeal the resolution of the such act or omission appears to be illegal,
inquest prosecutor’s finding of probable cause to unjust, improper or inefficient.
the SOJ?
f) PCGG is empowered to investigate, file and
➔ A: No. The remedy of appeal to the SOJ is not prosecute cases investigated by it.
immediately available in cases subject of
inquest. The private party should first avail of PROCEDURE OF PRELIMINARY INVESTIGATION
a preliminary investigation or reinvestigation, if

1. Filing of the complaint with the investigating complaint and of the evidence submitted
prosecutor. against him; and
2. From the filing of the complaint, the 5. That he was given an opportunity to submit
investigating officer has ten (10) days within controverting evidence.
which to decide whether to dismiss the
complaint OR issue a subpoena. Otherwise, he shall recommend the dismissal of the
complaint.
3. The respondent who receives the subpoena,
the complaint, affidavits and other supporting The information is valid notwithstanding the absence
documents, is not allowed to file a motion to of a certification as to the holding of a PI, for the
dismiss in lieu of a counter-affidavit. Instead, reason that such certification is not an essential part
within ten (10) days from receipt of the of the information itself and its absence cannot vitiate
subpoena, he is required to submit his it as such. (Estrella vs. Ruiz)
counter-affidavit, the affidavits of his
witnesses and the supporting documents Within five (5) days from his resolution, he shall
relied upon for his defense. forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
4. If the respondent cannot be subpoenaed, or if
Ombudsman or his deputy. No complaint or
subpoenaed, does not submit
information may be filed or dismissed by an
counter-affidavits within the ten (10) day
investigating prosecutor without the written authority
period, the investigating officer shall resolve
or approval of the provincial or city prosecutor or chief
the complaint based on the evidence
state prosecutor or the Ombudsman or his deputy.
presented by the complainant.
5. Within ten (10) days from the submission of When the Investigating prosecutor recommends
dismissal of the complaint, The provincial or city
the counter-affidavit, other affidavits and
prosecutor or his deputy may reverse such if and may
documents filed by the respondent, or from
file an information against the respondent or direct
the expiration of the period for their
another assistant prosecutor or state prosecutor to do
submission, a hearing may be set by the
so without the conduct of another Preliminary
investigating officer, if there are facts and
investigation.
issues to be clarified either from a party or a
witness. (clarificatory hearing: optional only)
The aggrieved party may file a motion for
The parties can be present at the hearing but reconsideration within 15 days from the receipt of the
assailed resolution.
do not have the right to examine or cross-
examine each other or the witnesses.
An appeal may be brought to the Secretary of Justice
6. Within ten (10) days from the termination of from the resolutions of Chief state prosecutor,
Regional State prosecutor and provincial city
the investigation, the investigating prosecutor
prosecutor within 15 days from the receipt of such
shall determine whether or not there is
resolution by means of filing a PETITION FOR
sufficient ground to hold the respondent for
REVIEW.
trial.
Resolution of Investigating Prosecutor The appeal does not hold or prevent the filing of
information in court unless the Secretary of Justice
If the investigating prosecutor finds cause to hold the directs otherwise.
respondent for trial, he shall prepare the resolution
A party filing for petition for review is allowed to file a
and information. The information shall contain a
motion for the suspension of arraignment.
CERTIFICATION by the investigating officer under
oath in which he shall certify the following:
NOTE: The court cannot interfere with the discretion of
1. That he, or as shown by the record, an the Executive department in the course of Preliminary
investigations EXCEPT when there is Grave abuse of
authorized officer has personally examined the
discretion. If there is grave abuse of discretion on the
complainant and his witnesses;
part of the Secretary of Justice, Petition for Certiorari
2. That there is reasonable ground to believe that (Rule 65) may be filed to the CA.
a crime has been committed;
Appeal to the Office of the President
3. That the accused is probably guilty thereof
Appeals from petition for review from the decisions of
4. That the accused was informed of the Secretary of Justice may be entertained by the Office

of the President under the following jurisdictional perform a positive duty enjoined by law. (Lanier vs.
facts: People)
1. Punishable by reclusion perpetua to death E. Arrest (Rule 113)

2. New materials are raised which were not
previously presented before the DOJ. An arrest is the taking of a person into custody in
3. Prescription of the offense is not due to the order that he may be bound to answer for the
laps within 6 months from notice of the commission of an offense (Sec. 1, Rule 113)
questioned resolution
4. Within 30 days from notice. An arrest is made by an actual restraint of a person to
be arrested, or by his submission to the custody of the
Decisions from the Office of the president may be person making the arrest. No violence or unnecessary
appealed by PETITION FOR REVIEW TO CA within 15 force shall be used in making an arrest. The person
days from notice via RULE 43. arrested shall not be subject to a greater restraint than
is necessary for his detention. (Sec. 2, Rule 113)
Options of the judge upon the filing of Information
Arrest may be made on any day, at any time of the
The options available to the RTC upon the filing of an day or night. (Sec. 6, Rule 113)
information before it by the public prosecutor or any
prosecutor of the Secretary of Justice, are the A warrant of arrest need not be issued if the
following: information or charge was filed for an offense
penalized by a fine only. (Luz vs. People)
1) dismiss the case if the evidence on record
clearly failed to establish probable cause; REQUISITES FOR THE ISSUANCE OF A WARRANT
OF ARREST
2) if the RTC finds probable cause, issue a
warrant of arrest; and
1) Issued upon probable cause;
3) In case of doubt as to the existence of
2) Probable cause is to be determined personally
probable cause, order the prosecutor to
by the judge after examination under oath of
present additional evidence within 5 days from
the complainant and the witnesses he may
notice, the issue to be resolved by the court
produce;
within thirty (30) days from the filing of the
information. 3) The judge must personally evaluate the report
of the prosecutor and the evidence adduced
The function of the judge to issue a warrant of arrest during the preliminary examination;
upon the determination of probable cause is exclusive
and cannot be deferred pending the resolution of a 4) The warrant must particularly describe the
petition for review by the Secretary of Justice as to the person to be arrested; and
finding of probable cause, which is a function that is
executive in nature. (Tagastason, et al. vs. People) 5) It must be in connection with specific offense
or crime.
The trial court shall not rely solely on the findings of
the prosecutor. It must make an independent AAA v. Carbonell (2007)
evaluation or assessment.
Citing the leading case of Soliven v. Makasiar, the
Withdrawal of Information already filed in Court Court explained that this constitutional provision does
not mandatorily require the judge to personally
When confronted with a motion to withdraw an examine the complainant and her witnesses. Instead,
Information on the ground of lack of probable cause he may opt to personally evaluate the report and
based on a resolution of the Secretary of Justice, the supporting documents submitted by the prosecutor or
bounden duty of the trial court is to make an he may disregard the prosecutor's report and require
independent assessment of the merits of such motion. the submission of supporting affidavits of witnesses.
Having acquired jurisdiction over the case, the trial The argument that the Constitution now requires the
court is not bound by such resolution but is required judge to personally examine the complainant and his
to evaluate it before proceeding further with the trial. witnesses in his determination of probable cause for
While the Secretary’s ruling is persuasive, it is not the issuance of warrants of arrest is not an accurate
binding on courts. When the trial court’s Order rests interpretation.
entirely on the assessment of the DOJ without doing
its own independent evaluation, the trial court What the Constitution underscores is the exclusive
effectively abdicates its judicial power and refuses to

and personal responsibility of the issuing judge to as practicable, if the person arrested so requires.
satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause The officer assigned to execute the warrant of arrest
for the issuance of a warrant of arrest, the judge is not has the duty to deliver the person arrested to the
required to personally examine the complainant and nearest police station or jail without unnecessary
his witnesses. delay. (Sec. 3, Rule 113)
It must be emphasized that such personal The authority to effect an arrest carries with it an
examination is not mandatory and indispensable in the authority to orally summon as many persons as he
determination of probable cause for the issuance of a deems necessary to assist him in effecting the arrest.
warrant of arrest. The necessity arises only when there Every person summoned by an officer is required to
is an utter failure of the evidence to show the give the assistance requested provided he can do so
existence of probable cause. Otherwise, the judge without detriment to himself.
may rely on the report of the investigating prosecutor,
provided that he likewise evaluates the documentary Likewise, the officer has the authority to break into any
evidence in support thereof. (Webb v. De Leon) building or enclosure in case he is refused admittance
after announcing his authority and purpose.
It is enough that the judge personally evaluates the
prosecutor's report and supporting documents VALID WARRANTLESS ARREST
showing the existence of probable cause for the
indictment and, on the basis thereof, issue a warrant 1) When in the presence of the arresting person,
of arrest; or if, on the basis of his evaluation, he finds the person to be arrested has committed, is
no probable cause, to disregard the prosecutor's actually committing or is attempting to commit
resolution and require the submission of additional an offense (in flagrante delicto arrest);
affidavits of witnesses to aid him in determining its
existence. (Ocampo v. Obando) Requisites:
Indeed, what the law requires as personal a. the person to be arrested must
determination on the part of the judge is that he execute an overt act indicating that he
should not rely solely on the report of the investigating has just committed, is actually
prosecutor. committing, or is attempting to
commit a crime;
No hearing de novo in the determination of probable
cause in the issuance of warrant of arrest. b. such overt act is done in the presence
or within the view of the arresting
METHOD OF ARREST WITH A WARRANT officer.
Mere "suspicion" and "reliable information"

The head of the office to whom the warrant of arrest
are not justifications for a warrantless arrest.
was delivered shall cause the warrant to be executed
The accused perform some overt act that
within ten (10) days from its receipt. Within ten (10)
would indicate that he has committed, is
days after the expiration of the period, the officer to
actually committing, or is attempting to
whom it was assigned for execution shall make a
commit an offense.
report to the judge who issued the warrant. In case of
his failure to execute the warrant, he shall state the
2) When an offense has in fact been committed
reasons for its non-execution (Sec. 4, Rule 113)
and the arresting person has probable cause
to believe based on personal knowledge of
General Rule: The person making an arrest shall
facts or circumstances that the person to be
inform the person of the cause and the fact that a
arrested has committed it (doctrine of hot
warrant has been issued for his arrest.
pursuit);
Exception: It shall not be required when he:
Requisites:
a. flees,
a. The offense has just been committed;
b. forcibly resists, or
c. the giving of the information will imperil the
b. Probable cause based on personal
arrest. (Sec. 7, Rule 113)
knowledge on the part of the person
making the arrest, of facts or
The officer need not have the warrant in his
circumstances that the person/s to be
possession at the time of the arrest. However, after
the arrest, the warrant shall be shown to him as soon

arrested committed it; and A waiver of an illegal warrantless arrest does not also
mean a waiver of the inadmissibility of evidence
c. There is close proximity between the seized during an illegal warrantless arrest.
arrest and the time of commission of
the crime (immediacy) Effect of admission to bail on objections to an
illegal arrest
This exception does not require the arresting
officers to personally witness the commission An application for or admission to bail shall not bar the
of the offense with their own eyes. Personal accused from challenging the validity of his arrest or
knowledge of facts must be based on the legality of the warrant issued, provided that he
probable cause. The tenor of the rule raises the objection before he enters his plea.
obviously emphasizes the immediacy of the
arrest reckoned from the commission of the WAIVER OF THE ILLEGALITY OF THE ARREST
crime.
A warrantless arrest is not a jurisdictional defect and
3) When the person to be arrested is a prisoner
any objection to it is waived when the person arrested
who has escaped from a penal establishment
submits to arraignment without any objection. If the
or place where he is serving final judgment or
appellants are questioning their arrest for the first time
temporarily confined while his case is pending
on appeal, they are, therefore, deemed to have waived
or has escaped while being transferred from
their right to the constitutional protection against
one confinement to another (escapee).
illegal arrests and searches.
RIGHTS OF THE PERSON ARRESTED The established rule is that an accused may be
estopped from assailing the legality of his arrest if he
1) Assisted by counsel at all times failed to move for the quashing of the information
2) Right to remain silent against him before his arraignment. Any objection
3) To be informed of the above rights involving the arrest or the procedure in the court's
4) To be visited by the immediate members of acquisition of jurisdiction over the person of an
his family, by his counsel or by any accused must be made before he enters his plea;
non-governmental organization, national or otherwise the objection is deemed waived.
international.
Since the legality of an arrest affects only the
In the absence of a lawyer, no custodial investigation jurisdiction of the court over the person of the
shall be conducted and the suspected person can accused, any defect in the arrest of the accused may
only be detained by the investigating officer in be deemed cured when he voluntarily submits to the
accordance with the provisions of Article 125 of the jurisdiction of the trial court.
Revised Penal Code. Also, any waiver of the
provisions of Article 125 of the Revised Penal Code, F. Bail (Rule 114)
shall be in writing, and signed by the person arrested,
detained or under custodial investigation in the Bail is the security given for the release of a person in
presence of his counsel, otherwise the waiver shall be custody of the law, furnished by him or a bondsman,
null and void and of no effect. to guarantee his appearance before any court as
required under certain specified conditions (Sec. 1,
Custodial Investigation Rule 114)
Custodial investigation shall include the practice of The rule clearly specifies that the purpose of bail is to
issuing an "invitation" to a person who is investigated guarantee the appearance of a person before any
in connection with an offense he is suspected to have court when so required.
committed, without prejudice to the liability of the
"inviting" officer for any violation of law. The right to bail is a constitutional right. It is personal
in nature and is therefore, waivable.
Effect of an illegal arrest on jurisdiction of the
court Since bail is the security for the release of a person
under custody of the law, it is evident that it is not
The legality of the arrest affects only the jurisdiction of intended to cover the civil liability of the accused in
the court over the person of the accused. the same criminal case.
The illegality of the arrest cannot by itself be the basis The applicant for bail must be in custody
for acquittal. (People vs. Yau)
Bail is only available if the person is in custody of the

law. be ordered to post bail even if he is not under

detention. Bail may thus be required to guarantee the
Custody of the law is required before the court can act appearance of a material witness other than that of
on an application for bail, but is not required for the the accused. (Sec. 14, Rule 119)
adjudication of other reliefs sought by the defendant.
(Miranda v. Tuliao) FORMS OF BAIL
A person is deemed to be under the custody of the

1. Corporate Surety — This is bail furnished by
law either when he has been arrested or has
a domestic or foreign corporation duly
surrendered himself to the jurisdiction of the court.
licensed as a surety and authorized to act as
such subscribed jointly by the accused and
Paderanga v. Court of Appeals (1995) the officer of the corporation duly authorized
by the BOD.
As bail is intended to obtain or secure one's
provisional liberty, the same cannot be posted before 2. Property Bond — A property bond is an
custody over him has been acquired by the judicial undertaking constituted as lien on the real
authorities, either by his lawful arrest or voluntary property given as security for the amount of
surrender. It would be incongruous to grant bail to one the bail. Within 10 days from the approval of
who is free. the bond, the accused shall cause the
annotation on the certificate of title on file with
A person is considered to be in the custody of the law the Registry of Deeds.
(a) when he is arrested either by virtue of a warrant of
arrest or by warrantless arrest or (b) when he has 3. Cash Deposit — The accused or any person
voluntarily submitted himself to the jurisdiction of the acting in his behalf may deposit in cash with
court by surrendering to the proper authorities. the nearest collector of internal revenue or
provincial, city, or municipal treasurer or the
In this case, it may be conceded that Panderanga had clerk of court where the case is pending, the
indeed filed his motion for admission to bail before he amount of bail fixed by the court or
was actually and physically placed under arrest. He recommended by the prosecutor who
may, however, at that point and in the factual investigated or filed the case.
ambience therefore, be considered as being
constructively and legally under custody. Thus, in the 4. Recognizance — This is an obligation of
likewise peculiar circumstance which attended the record entered into before some court or
filing of his bail application with the trail court, for magistrate duly authorized to take it, with the
purposes of the hearing thereof he should be deemed condition to do some particular act, the most
to have voluntarily submitted his person to the usual condition in criminal cases being the
custody of the law and, necessarily, to the jurisdiction appearance of the accused for trial. The
of the trial court which thereafter granted bail as release may be either on the recognizance of
prayed for. It should be stressed that, through his the accused himself or that of a responsible
counsel, he emphatically made it known to the person.
prosecution and to the trial court during the hearing
for bail that he could not personally appear as he was Release on recognizance may be ordered by the
then confined at the nearby Cagayan Capitol College court in the following cases:
General Hospital for acute costochondritis. The
prosecution and the trial court, notwithstanding their a) Offense charged is for violation of ordinance,
explicit knowledge of the specific whereabouts of light felony or criminal offense, the imposable
petitioner, never lifted a finger to have the arrest penalty which DOES NOT EXCEED 6
warrant duly served upon him. MONTHS IMPRISONMENT AND/OR 2K FINE.
The undeniable fact is that Paderanga was by then in b) A person has been in custody for a period
the constructive custody of the law. Hence, the trial equal to or more than the minimum of the
court did not commit any grave abuse of discretion imposable principal penalty without
and the bail was properly admitted. application of ISLAW. The court may either
grant release on his own recognizance or
Bail to guarantee appearance of witnesses reduced bail.
While the rule is that bail does not apply to a person c) When accused applied for probation pending
who is not in custody of the law, the bail required to finality of judgment but no bail was filed or the
secure the appearance of a material witness accused is incapable of filing one
constitutes an exception to the rule because he may

d) Youthful offender would be beyond her reach.
e) In summary procedure when the accused has Bail shall be effective upon approval and unless
been arrested for failure to appear when cancelled shall remain in force at all stages of the case
required. until promulgation of judgment of RTC irrespective of
whether the case was originally filed in or appealed to
GUIDELINES IN FIXING THE AMOUNT OF BAIL it.
The basic rule in fixing the amount of bail is that Effects of failure to appear at the trial
excessive bail shall not be required.
The failure of the accused to appear at the trial
The judge who issued the warrant or who granted the without justification despite due notice shall be
application for bail shall fix a reasonable amount of deemed a waiver of his right to be present and the trial
bail considering primarily, but not limited to, the may proceed in absentia.
following factors:
WHEN BAIL IS NOT ALLOWED
a) Financial ability of the accused to give bail;
b) Nature and circumstances of the offense; 1) A person charged with a capital offense, or an
c) Penalty for the offense charged; offense punishable by reclusion perpetua or
d) Character and reputation of the accused; life imprisonment, shall be not admitted to bail
e) Age and health of the accused; when evidence of guilt is strong regardless of
f) Weight of the evidence against the accused; the stage of the criminal prosecution.
g) Probability of the accused appearing at the
trial; 2) Bail shall not be allowed after a judgment of
h) Forfeiture of other bail; conviction has become final.
i) The fact that the accused was a fugitive from
justice when arrested; and 3) Bail shall not be allowed after the accused has
j) Pendency of other cases where the accused commenced to serve sentence.
is on bail (Sec. 9, Rule 114)
BAIL AS A MATTER OF RIGHT
Magsucang v. Judge Balgos (2003)
a) Before and after conviction by the MeTC,
The amount of bail should be reasonable at all times.
MTCC,MTC, MCTC
Excessive bail shall not be required. In implementing
this mandate, regard should be taken of the prisoner's b) Before conviction by the RTC of offenses not
pecuniary circumstances. That which is reasonable punishable by death, reclusion perpetua or life
bail to a man of wealth may be unreasonable to a poor imprisonment
man charged with a like offense. Where the right to
bail exists, it should not be rendered nugatory by
BAIL A MATTER OF DISCRETION
requiring a sum that is excessive. The amount should
be high enough to assure the presence of the
defendant when required but no higher than is a) After conviction of the RTC of an offense not
reasonably calculated to fulfill this purpose. punishable by death, reclusion perpetua and
life imprisonment.
In this case, the respondent judge failed to consider
that Rosalie Magsucang is illiterate, the daughter of a b) When the accused is charged in the RTC of
poor fisherman. She had very limited financial ability crime whose imposable penalty is death,
to post bail. In Criminal Case No. 1635, one of the reclusion perpetua and life imprisonment,
nine cases that came after Criminal Case No. 1593, when evidence of guilt is not strong.
Rosalie Magsucang was accused of stealing only
P4,300. Indeed, each of the ten (10) cases carried Bail Negating Circumstances
separate warrants of arrest, each with its own
recommended amount of bail. In fixing the If the penalty imposed by the trial court is
unreasonably excessive amount of bail at P24,000 in imprisonment exceeding six (6) years, the accused
the last cited case, it is clear that the respondent shall be denied bail, or his bail shall be cancelled upon
judge disregarded the guidelines provided by the a showing by the prosecution, with notice to the
Rules of Court. In the same breath that Rosalie was accused, of the following or other similar
told she could be bailed out, she was practically circumstances:
denied the means to do so. The excessive amount
required could only mean that her provisional liberty 1. Recidivist, quasi-recidivist, habitual

delinquent, or reiteration prosecutor must be notified to require him to submit

2. Escapee his recommendation. This notice of hearing applies in
3. Committed an offense while on probation, all cases whether bail is a matter of right or a matter of
parole or conditional pardon discretion.
4. Probability of flight if released on bail
5. Undue risk that he will commit a crime It is a misconception that when an accused is charged
with the crime of murder, he is not entitled to bail at all
If the accused is convicted by the RTC and imposed a or that the crime of murder is non-bailable. The grant
penalty of imprisonment exceeding 6 years and there of bail to an accused charged with an offense that
is no bail negating circumstances, the grant of bail is carries with it the penalty of reclusion perpetua is
discretionary. It is not automatic on the part of the discretionary on the part of the trial court. In other
RTC to grant bail. If any of the negating circumstances words, the accused is still entitled to bail but no longer
is present, the bail should be denied. (Leviste v. CA) "as a matter of right." Instead, it is discretionary and
calls for a judicial determination that the evidence of
Is the condition that the accused be arraigned first guilt is not strong in order to grant bail. The
before he can post bail valid? prosecution is accorded ample opportunity to present
evidence because by the very nature of deciding
NO. The grant of bail should not be conditioned upon applications for bail, it is on the basis of such
prior arraignment of the accused. In cases where bail evidence that judicial discretion is weighed in
is authorized, bail should be granted before determining whether the guilt of the accused is strong
arraignment; otherwise, the accused will be precluded (San Miguel v. Maceda)
from filing a motion to quash which is to be done
before arraignment. (Lavides v. CA) It is a mandatory duty to conduct a hearing despite
the prosecution's refusal to adduce evidence in
Where should an application for bail be filed after opposition to the application to grant and fix bail or
conviction of the RTC? when the prosecution chooses to just file a comment
The fact that the prosecutor interposed no objection
1. RTC even if notice of appeal is filed so long as to the application for bail by the accused does not
the records are still with the RTC. relieve the judge of the duty to set the motion for bail
for hearing.
2. If the original record has already been
transmitted to the appellate court, then the Enrile vs. Sandiganbayan (2015)
application shall be filed with the said
appellate court. In resolving bail applications of the accused who is
charged with a capital offense, or an offense
3. If the decision of the RTC convicting the punishable by reclusion perpetua or life imprisonment,
accused changed the nature of the offense the trial judge is expected to comply with the
from non-bailable to bailable, the application guidelines outlined in Cortes v. Catral, to wit:
for bail can only be filed with and resolved by
the appellate court. 1. In all cases, whether bail is a matter of right or of
discretion, notify the prosecutor of the hearing of
Who may not be admitted to bail? the application for bail or require him to submit his
recommendation;
No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life 2. Where bail is a matter of discretion, conduct a
imprisonment, shall be admitted to bail when evidence hearing of the application for bail regardless of
of guilt is strong, regardless of the stage of the whether or not the prosecution refuses to present
criminal prosecution (Section 7, Rule 114) evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to
Hearing of application for bail in offenses exercise its sound discretion;
punishable by death, reclusion perpetua, or life
imprisonment 3. Decide whether the guilt of the accused is strong
based on the summary of evidence of the
Whether or not the evidence of guilt is strong is a prosecution;
matter to be determined by the court after a hearing.
The prosecution has the burden of showing that 4. If the guilt of the accused is not strong, discharge
evidence of guilt is strong. the accused upon the approval of the bail bond.
Otherwise the petition should be denied.
Since the grant of bail is a matter of discretion, a
hearing must be conducted whether or not the Hearing is mandatory in application for bail in
prosecution refuses to present evidence and the

non-bailable offenses Within the said period, the bondsmen must:
The Rules of Criminal Procedure requires a hearing a) produce the body of their principal or give the
before resolving a motion for bail by persons charged reason for his non-production; and
with offenses punishable by reclusion perpetua where b) explain why the accused did not appear
the prosecution may discharge its burden of showing before the court when first required to do so.
that the evidence of guilt is strong (People v. Dacudao)
This hearing, whether summary or otherwise, is Failing in these two requisites, a judgment shall be
mandatory and indispensable. rendered against the bondsmen, jointly and severally,
for the amount of the bail. The court shall not reduce
WHERE TO FILE APPLICATION FOR BAIL or otherwise mitigate the liability of the bondsmen,
unless the accused has been surrendered or is
acquitted.
1) Court where the case is pending;
2) In the absence or unavailability of the judge People v. Caparas (1988)

thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, In the forfeiture of bail bonds, courts are liberal in
or municipal circuit trial judge in the province, accepting the explanation of the bondsmen provided
city, or municipality. the body of the accused is produced. Production of
the body of the accused should be made within the
3) If the accused is arrested in a province, city, period of 30 days required by the court. If so
or municipality other than where the case is produced, forfeiture may be discharged if a
pending, bail may also be filed with any satisfactory explanation is given why he neglected or
regional trial court of said place, or if no judge failed to appear when first required to do so. To justify
thereof is available, with any metropolitan trial exemption from liability on a bail bond or a reduction
judge, municipal trial judge, or municipal thereof, the accused must be surrendered to the court
circuit trial judge therein; and his non-appearance when first required by the
court must be satisfactorily explained.
4) Where the grant of bail is a matter of
discretion, or the accused seeks to be Petitioner was of the erroneous impression that as
released on recognizance, the application may long as an explanation was given and provided it was
only be filed in the court where the case is made timely a bondsman could be readily relieved of
pending, whether on preliminary investigation, liability.
trial, or appeal.
Petitioner’s allegation that the performance of its
5) Any person in custody who is not yet charged obligation was rendered impossible by the act of the
in court may apply for bail with any court in obligee is untenable. It could have taken steps to
the province, city, or municipality where he is prevent the departure of Caparas. The error of the
held. government agency concerned in allowing Caparas to
leave must be because of her misrepresentation that
Remedy when bail is denied there was no pending case against her. Petitioner
cannot be relieved of liability on the ground that it had
The remedy of the petitioner from the order of the trial not participated nor consented to the escape of the
court denying a petition for bail is to file a petition for principal. As the jailer or custodian of the accused its
certiorari if the trial court committed a grave abuse of obligation is to produce the body of the accused
its discretion amounting to excess or lack of whenever so required. Failure to do so is a violation of
jurisdiction in issuing the said order (People v. Gomez) the condition of the bond. Failing in this respect,
forfeiture of the bail bond is proper.
FORFEITURE OF BAIL
It is clear from the foregoing that the surety had not
When the presence of the accused is required by the shown sufficient cause to justify its exoneration. The
court or these Rules, his bondsmen shall be notified to principal having escaped and is now beyond the
produce him before the court on a given date and jurisdiction of the court, petitioner breached its
time. If the accused fails to appear in person as obligation to the government. Hence, it is liable under
required, his bail shall be declared forfeited and the the bond.
bondsmen given thirty (30) days within which to
produce their principal and to show cause why no G. Arraignment and plea (Rule 116)
judgment should be rendered against them for the
amount of their bail (Sec. 21, Rule 114) Arraignment is the formal mode and manner of
implementing the constitutional right of an accused to

be informed of the nature and cause of the accusation pending at either the Department of
against him. (People v. Pangilinan) Justice, or of the Office of the
President.
Arraignment is an indispensable requirement of due
process. It consists of the judge's or the clerk of 3. Motion to quash
court's reading of the criminal complaint or
information to the defendant. At this stage, the 4. Challenge the validity of arrest or legality of
accused is granted, for the first time, the opportunity the warrant issued or assail the regularity or
to be officially informed of the nature and the cause of question the absence of a preliminary
the accusation. investigation of the charge
Without a prior arraignment, the accused cannot Plea made before a court with no jurisdiction
invoke double jeopardy (Miranda v. Tuliao)
A plea made before a court that has no jurisdiction
Note too that if the accused has not been arraigned, over the criminal action does not give rise to double
he cannot be tried in absentia. jeopardy.
DUTY OF THE COURT BEFORE ARRAIGNMENT Arraignment under an amended information
Where the accused has been already arraigned and

Before arraignment, the court shall:
subsequently, the information was substantially
amended, an arraignment on the amended information
a) inform the accused of his right to counsel;
is mandatory because the accused has the
b) ask him if he desires to have one; and
constitutional right to be informed of the accusation
c) must assign a counsel de officio to defend
against him and more so because the accused had
him unless the accused is allowed to defend
repeatedly called the attention of the court to the
himself in person; or has employed a counsel
absence of arraignment. If he is not arraigned and is
of his choice.
convicted under the second information, the
conviction constitutes reversible error.
This duty is mandatory and the only instance when the
court can arraign without the benefit of counsel is if
Where the amendment is only as to form, there is no
the accused waives such right and the court, finding
need for another preliminary investigation.
the accused capable, allows him to represent himself
in person. If the accused informs the court that he
cannot afford a lawyer, and the court has not allowed HOW ARRAIGNMENT AND PLEA ARE MADE
the accused to represent himself or the accused is
incapable of representing himself, the judge has the The arraignment shall be made in open court by the
duty to appoint a counsel de officio to give meaning judge or clerk by furnishing the accused with a copy
and substance to the constitutional right of the of the complaint or information, reading the same in
accused to counsel. the language or dialect known to him, and asking him
whether he pleads guilty or not guilty (Sec. 1(a), Rule
OPTIONS OF THE ACCUSED BEFORE 116)
ARRAIGNMENT
Schedule of Arraignment and Pre-trial
1. Bill of particulars — The motion shall (a)
Once the court has acquired jurisdiction over the
specify the alleged defects of the complaint or
person of the accused, the arraignment of the
information, and shall (b) specify the details
accused and the pretrial shall be set:
desired.
a) Within ten (10) calendar days from date of the
2. Suspension of arraignment — Upon motion,
court's receipt of the case for a detained
the proper party may ask for the suspension
accused; and
of the arraignment in the following cases:
b) Within thirty (30) calendar days from the date
a. The accused appears to be suffering
the court acquires jurisdiction (either by arrest
from an unsound mental condition
or voluntary surrender) over a non-detained
accused,
b. There exists a prejudicial question;
and
Unless a shorter period is provided by special law or
Supreme Court circular. (Revised Guidelines for
c. There is a petition for review of the
resolution of the prosecutor which is

Continuous Trial of Criminal Cases) Requisites:
Is the presence of the accused required? a) The lesser offense is necessarily included in
the offense charged; and
Yes. The accused must be present at the arraignment b) The plea must be with the consent of both the
and must personally enter his plea. Both arraignment offended party and the prosecutor.
and plea shall be made of record, but failure to do so
shall not affect the validity of the proceedings. (Sec. The acceptance of an offer to plead guilty to a lesser
1(b), Rule 116) offense is not demandable by the accused as matter
of right but is a matter addressed entirely to the sound
When is the presence of the private offended party discretion of the trial court.
needed?
After arraignment but before trial, the accused may
The private offended party shall be required to appear still be allowed to plead guilty to said lesser offense
at the arraignment for purposes of plea bargaining, after withdrawing his plea of not guilty. It may be
determination of civil liability, and other matters made even after the prosecution has rested its case.
requiring his presence. In case of failure of the
offended party to appear despite due notice, the court
PEOPLE v. REAFOR, 2020
may allow the accused to enter a plea of guilty to a
lesser offense which is necessarily included in the
A defendant has no constitutional right to plea
offense charged with the conformity of the trial
bargain. No basic rights are infringed by trying him
prosecutor alone.
rather than accepting a plea of guilty; the
prosecutor need not do so if he prefers to go to
WHEN A PLEA OF 'NOT GUILTY' SHALL BE trial. Under the present Rules, the acceptance of an
ENTERED offer to plead guilty is not a demandable right but
depends on the consent of the offended party and
1) He refuses to plead the prosecutor, which is a condition precedent to a
2) He makes a conditional plea valid plea of guilty to a lesser offense that is
3) When he pleads guilty but presents necessarily included in the offense charged.
exculpatory evidence in which case the guilty
plea shall be deemed withdrawn and a plea of The basic requisites of plea bargaining are (a)
not guilty shall be entered consent of the offended party (b) consent of the
prosecutor, (c) plea of guilty to a lesser offense
When the accused admits the facts in the information which is necessarily included in the offense
but alleges that he performed the acts as charged charged, and (d) approval of the court.
because he feared for his life, it is proper to enter a
plea of not guilty (People v. Baetiong) In the case of Sayre v. Dax Xenos, the Court
concluded that the continuing objection on the
When the accused pleads guilty and bargains for a part of the prosecution based on DOJ Circular
lesser penalty, it is not a plea to a lesser offense. It is a No. 27 will necessarily result in the parties'
plea that made conditions on the penalty to be failure to arrive at a mutually satisfactory
imposed. It is the essence of a plea of guilty that the disposition of the case that may be submitted
accused admits absolutely and unconditionally his for the trial court's approval. In light of the
guilt and responsibility for the offense imputed to him. absence of a mutual agreement to plea bargain,
Hence, an accused may not foist a conditional plea of the proper course of action would be the
guilty on the court by admitting his guilt provided that continuation of the proceedings.
a certain penalty will be meted unto him. (People v.
Magat) In this case, the RTC gravely abused its discretion
in granting respondent's motion to plea bargain
PLEA OF GUILTY TO A LESSER OFFENSE; PLEA notwithstanding the prosecution's opposition to the
BARGAINING same which is grounded on DOJ Circular No. 27.
Effectively, the respondent's plea of guilty to a
lesser offense was made without the consent of
Plea bargaining in criminal cases is a process whereby
the prosecution. Since Reafor’s plea of guilt and
the accused and the prosecution work to a mutually
subsequent conviction for a lesser offense clearly
satisfactory disposition of the case subject to court
lack one of the requisites of a valid plea bargain,
approval. It usually involves the defendant pleading
the plea bargaining is void. Resultantly, the
guilty to a lesser offense or to only one or some of the
judgment rendered by the trial court which was
counts of a multi-count indictment in return for a
based on a void plea bargaining is also void ab
lighter sentence than that for the graver charge.
initio and cannot be considered to have attained

judgment of acquittal in favor of the accused.

finality for the simple reason that a void judgment
has no legality from its inception.
c) In case the prosecution fails to present any
evidence despite the opportunity to do so, the trial
The case is remanded to the trial court for the
court shall enter a judgment of acquittal in favor of
resumption of trial.
the accused.
In the above instance, the trial court shall require the

prosecution to explain in writing within ten (10) days
PLEA OF GUILTY TO A CAPITAL OFFENSE from receipt its failure to present evidence. Any
instance of collusion between the prosecution and the
accused shall be dealt with to the full extent of the
Whenever faced with a voluntary plea of guilty to a
law.
capital offense, the court has the bounden duty to
observe the so called 3-fold duties:
AT THE APPEAL STAGE:
1) The court shall conduct a searching inquiry
a) When the accused is convicted of a capital
into the voluntariness and comprehension of
offense on the basis of his plea of guilty, whether
the plea.
improvident or not, and proof beyond reasonable
■ Purpose of which is to assure that the doubt was established, the judgment of conviction
accused is not making an improvident shall be sustained.
plea of guilty.
b) When the accused is convicted of a capital
2) Require the prosecution to present offense solely on the basis of his plea of guilty,
evidence. whether improvident or not, without proof beyond
reasonable doubt because the prosecution was
■ Purpose of which is to determine the not given an opportunity to present its evidence,
degree of culpability of the accused or was given the opportunity to present evidence
— includes the establishment of the but the improvident plea of guilt resulted to an
circumstances (aggravating, undue prejudice to either the prosecution or the
qualifying, or mitigating) that may accused, the judgment of conviction shall be set
affect the imposable penalty. aside and the case remanded for re-arraignment
and for reception of evidence pursuant to Sec. 3,
3) Ask the accused whether he desires to Rule 116 of the 2000 Revised Rules of Criminal
present evidence on his behalf, and allow Procedure.
him to do so if he so desires.
c) When the accused is convicted of a capital
People v. Pagal (2020) offense solely on the basis of a plea of guilty,
whether improvident or not, without proof beyond
For the guidance of the bench and the bar, this Court reasonable doubt because the prosecution failed
adopts the following guidelines concerning pleas of to prove the accused's guilt despite opportunity to
guilty to capital offenses: do so, the judgment of conviction shall be set
aside and the accused acquitted.
AT THE TRIAL STAGE. When the accused makes a
plea of guilty to a capital offense, the trial court must
strictly abide by the provisions of Sec. 3, Rule 116 of PLEA OF GUILTY TO NONCAPITAL OFFENSE
the 2000 Revised Rules of Criminal Procedure. In
particular, it must afford the prosecution an When the accused pleads guilty to a non-capital
opportunity to present evidence as to the guilt of the offense, the court may receive evidence from the
accused and the precise degree of his culpability. parties to determine the penalty to be imposed.
Failure to comply with these mandates constitute
grave abuse of discretion. Is it mandatory for the court to conduct a hearing
to determine the penalty to be imposed?
a) In case the plea of guilty to a capital offense is
supported by proof beyond reasonable doubt, the NO. While the Rules of Court makes it mandatory for
trial court shall enter a judgment of conviction. the court to conduct hearing in case the accused
pleaded to a capital offense, that is not so in case of
b) In case the prosecution presents evidence but non-capital offenses. In the latter case, the reception
fails to prove the accused's guilt beyond of evidence is discretionary with the court (People vs.
reasonable doubt, the trial court shall enter a

Flores) e) That it does not conform substantially to the

prescribed form;
IMPROVIDENT PLEA OF GUILTY
f) That more than one offense is charged except
when a single punishment for various offenses
At any time before the judgment of conviction
is prescribed by law;
becomes final, the court may permit an improvident
plea of guilty to be withdrawn and be substituted by a
g) That the criminal action or liability has been
plea of not guilty (Sec. 5, Rule 116)
extinguished;
Where the trial court failed in its duty to conduct the
h) That it contains averments which, if true,
prescribed "searching inquiry" into the voluntariness
would constitute a legal excuse or
of the accused's plea of guilty and full comprehension
justification; and
thereof, the plea of guilty is deemed made
improvidently and rendered inefficacious.
i) That the accused has been previously
convicted or acquitted of the offense charged,
Failure to inform the appellant of his right to adduce
or the case against him was dismissed or
evidence, appellant's guilty plea is deemed
otherwise terminated without his express
improvidently made and thus rendered inefficacious.
consent.
Remand to the trial court is appropriate only when the
REMINDER: The enumeration is exclusive.
appellant's guilty plea was the sole basis for his
conviction. However, if the trial court relied on
The following are not grounds to quash the
sufficient and credible evidence in finding the accused
Information:
guilty, the judgment must be sustained.
1. Execution of affidavit of desistance
H. Motion to quash (Rule 117)
2. Absence of probable cause for the issuance of
It is a special pleading filed by the defendant before
a warrant of arrest
entering his plea, which hypothetically admits the
■ It is a ground for dismissal of the case
truth of the facts spelled out in the complaint or
information at the same time that it sets up a matter
3. Matter of defense
which, if duly proved, would preclude further
proceedings.
4. Absence of preliminary investigation or
inability to participate in the preliminary
The motion to quash may be made at any time before
investigation
the accused enters his plea (Sec. 1, Rule 117)
■ It is a ground for a petition for
reinvestigation.
The rule does not permit an oral motion to quash. The
motion must comply with the following requisites:
Motion to quash is subject to the omnibus motion
rule; exceptions
a) The motion shall be in writing;
b) The motion shall be signed by the accused or
The failure to assert any ground of a motion to quash
his counsel; and
before a plea to the complaint or information shall be
c) The motion shall distinctly specify the factual
deemed a waiver of any objections.
and legal grounds of the motion.
Although the rule is that those grounds not asserted in
GROUNDS FOR A MOTION TO QUASH the motion to quash are waived, the following
objections are not waived and may be filed even after
a) That the facts charged do not constitute an plea:
offense;
1. That the facts charged do not constitute an
b) That the court trying the case has no offense;
jurisdiction over the offense charged; 2. That the court trying the case has no
jurisdiction over the offense charged;
c) That the court trying the case has no 3. That the criminal action or liability has been
jurisdiction over the person of the accused; extinguished; and
4. Double jeopardy
d) That the officer who filed the information had
no authority to do so;

DENIAL OF A MOTION TO QUASH terminated; and

c) the second jeopardy must be for the same
offense or the second offense includes or is
When a motion to quash in a criminal case is denied,
necessarily included in the offense charged in
the remedy is not a petition for certiorari, but for
the first information, or is an attempt to
petitioners to go to trial, without prejudice to
commit the same or a frustration thereof
reiterating the special defenses invoked in their motion
(Cudia v. Court of Appeals)
to quash (Serana v. Sandiganbayan)
First jeopardy attaches only when the following
If the court, in denying the motion to quash acts
elements concur:
without or in excess of jurisdiction or with grave abuse
of discretion, then certiorari or prohibition lies (Lazarte
a) Accused has been convicted or acquitted, or
v. Sandiganbayan)
case was dismissed, terminated without his
express consent;
ORDER SUSTAINING A MOTION TO QUASH b) Before a court of competent jurisdiction;
c) A valid complaint or information sufficient in
General Rule: When a motion to quash is sustained, form or substance;
the court may order that another complaint or d) Valid plea entered by him. (Arraignment)
information be filed.
Remember:
Exception: The ground relied upon is either:
■ There can be no double jeopardy where the
a) extinction of the criminal liability, or accused entered a plea in a court that had no
b) double jeopardy jurisdiction.
If the order to file another complaint or information is ■ The first jeopardy could not attach if the
made, the accused who may be in custody, shall not action was filed in a court of the place which
be discharged or released, except if he is admitted to was not the proper venue for hearing the
bail. case.
If no order to file is made or if such order is made but ■ An acquittal rendered by a court of competent
no new complaint or information is filed within the jurisdiction after trial on the merits is
time specified in the order, the accused, if in custody, immediately final and cannot be appealed on
shall be discharged. He shall however, not be the ground of double jeopardy.
discharged if he is in custody for another charge.
■ A judgment rendered with grave abuse of
DOUBLE JEOPARDY "res judicata in prison grey" discretion or without due process of law is
void, does not exist in legal contemplation and
thus, cannot be the source of an acquittal.
Double jeopardy presupposes that a first jeopardy has
already attached prior to the second jeopardy and
such jeopardy has already been terminated either People v. De Grano (2009)
because the accused has already been convicted, or
acquitted or the case against him has been dismissed By way of exception, a judgment of acquittal in a
or terminated without his express consent. criminal case may be assailed in a petition for
certiorari under Rule 65 of the Rules of Court, but only
Hence, if the accused has been acquitted of frustrated upon a clear showing by the petitioner that the lower
homicide, he can no longer be accused of the same court, in acquitting the accused, committed not
offense or of an offense necessarily included in merely reversible errors of judgment but also grave
frustrated homicide like attempted homicide. Similarly, abuse of discretion amounting to lack or excess of
a person convicted of attempted homicide can no jurisdiction, or to a denial of due process, thus
longer be tried, as a rule, under an information for rendering the assailed judgment void. In which event,
frustrated homicide against the same victim, because the accused cannot be considered at risk of double
the second offense includes the offense charged in jeopardy — the revered constitutional safeguard
the first information. against exposing the accused to the risk of answering
twice for the same offense.
Requisites of double jeopardy
Under Section 6, Rule 120 of the Revised Rules of
a) a first jeopardy must have attached prior to Criminal Procedure, the accused who failed to appear
the second; without justifiable cause shall lose the remedies
b) the first jeopardy must have been validly available in the Rules against the judgment. However,

within 15 days from promulgation of judgment, the for his discharge.

accused may surrender and file a motion for leave of
court to avail of these remedies. He shall state in his ■ A dismissal based on a violation of the right to
motion the reasons for his absence at the scheduled speedy trial is equivalent to an acquittal. A
promulgation, and if he proves that his absence was waiver of double jeopardy will not apply even
for a justifiable cause, he shall be allowed to avail of if the accused expressly moved for the
said remedies within 15 days from notice. termination of the proceedings.
When the Decision dated April 25, 2002 was ■ Double jeopardy will apply even if the
promulgated, only Estanislao Lacaba was present. dismissal is made with the express consent of
Subsequently thereafter, without surrendering and the accused, or upon his own motion, only if it
explaining the reasons for their absence, Joven, is predicated on either of two grounds, i.e.,
Armando, and Domingo joined Estanislao in their Joint insufficiency of the evidence or denied of the
Motion for Reconsideration. In blatant disregard of the right to a speedy trial.
Rules, the RTC not only failed to cause the arrest of
the respondents who were at large, it also took Esmena v. Pogoy (1981)
cognizance of the joint motion.
The petitioners were insisting on a trial. They relied on
The RTC clearly exceeded its jurisdiction when it their constitutional right to have a speedy trial. The
entertained the joint Motion for Reconsideration with fiscal was not ready because his witness was not in
respect to the respondents who were at large. court. Respondent judge on his own volition
provisionally dismissed the case. The petitioners did
Thus, Joven, Armando, and Domingo, were not placed not expressly manifest their conformity to the
in double jeopardy because, from the very beginning, provisional dismissal. Hence, the dismissal placed
the lower tribunal had acted without jurisdiction. them in jeopardy.
Verily, any ruling issued without jurisdiction is, in legal
contemplation, necessarily null and void and does not Even if the petitioners, after invoking their right to a
exist. In criminal cases, it cannot be the source of an speedy trial, moved for the dismissal of the case and,
acquittal. therefore, consented to it, the dismissal would still
place them in jeopardy. The use of the word
■ A preliminary investigation is not a trial to "provisional" would not change the legal effect of the
which double jeopardy attaches (Icasiano v. dismissal.
Sandiganbayan) The dismissal of a case
during its preliminary investigation stage does If the defendant wants to exercise his constitutional
not constitute double jeopardy since a right to a speedy trial, he should ask, not for the
preliminary investigation is not part of the trial. dismissal, but for the trial of the case. After the
prosecution's motion for postponement of the trial is
■ The principle of double jeopardy finds no denied and upon order of the court the fiscal does not
application in administrative cases. or cannot produce his evidence and, consequently,
fails to prove the defendant's guilt, the court upon
■ If before arraignment, the prosecutor withdrew defendant's motion shall dismiss the case, such
an information charging theft and later on filed dismissal amounting to an acquittal of the defendant".
another information for theft or robbery
against the same accused, double jeopardy The dismissal of a criminal case upon motion of the
cannot be invoked because the accused was accused because the prosecution was not prepared
never arraigned under the first information. for trial since the complainant and his witnesses did
not appear at the trial is a dismissal equivalent to an
■ The mere filing of two informations or acquittal that would bar further prosecution of the
complaints charging the same offense does defendant for the same offense.
not yet afford the accused in those cases the
occasion to complain that he is being placed When double jeopardy shall not apply despite a
in jeopardy twice for the same offense. prior conviction
■ The discharge of an accused to be a state 1) the graver offense developed due to

witness shall amount to acquittal and shall be supervening facts arising from the same act or
a bar to a future prosecution for the same omission constituting the former charge;
offense, unless the accused fails or refuses to
testify against his co-accused in accordance 2) the facts constituting the graver charge
with his sworn statement consisting the basis became known or were discovered only after
a plea was entered in the former complaint or

information; or consent of the accused to a provisional dismissal of a

criminal case is to bar him from subsequently
3) the plea of guilty to a lesser offense was made asserting that the revival of the criminal case will place
without the consent of the prosecutor and of him in double jeopardy for the same offense or for an
the offended party except as otherwise offense necessarily included therein.
provided in Sec. 1(f) of Rule 116.
Express consent to a provisional dismissal is given
PROVISIONAL DISMISSAL either viva voce or in writing. The mere inaction or
silence of the accused to a motion for a provisional
dismissal of the case or his failure to object to a
The concept of a provisional dismissal contemplates
provisional dismissal does not amount to express
that the dismissal of the criminal action is not
consent.
permanent and can be revived within the period set by
the Rules of Court.
If a criminal case is provisionally dismissed without
the express consent of the accused or over his
A case shall not be provisionally dismissed except
objection, the case may be revived or refiled even
with the express consent of the accused and with
beyond the prescribed periods subject to the right of
notice to the offended party.
the accused to oppose the same on the ground of
double jeopardy or that such revival or refiling is
"Time-Bar Rule"
barred by the statute of limitations.
➔ Imprisonment not exceeding 6 years or fine of
How is the case revived
any amount or both — 1 YEAR
The case may be revived by the State within the
➔ Imprisonment of more than 6 years — 2
time-bar either by the refiling of the Information or by
YEARS
the filing of a new Information for the same offense or
an offense necessarily included therein.
Thus, within the periods stated, the prosecution has to
revive the case if it desires to prevent the provisional
General Rule: No need for a new preliminary
dismissal becoming permanent and the revival of the
investigation.
case being time- barred.
Exception: A new Preliminary investigation is required
Reckoning period of one or two year period for
if new persons are charged or the original charge has
revival of criminal case
been upgraded or the criminal liability of the accused
is upgraded from that as an accessory to that as a
The one or two year period allowed for reviving a
principal.
criminal case that has been provisionally dismissed
shall be reckoned from the issuance of the order of
Q: A motion to withdraw information was filed by
dismissal. The dismissal shall become automatically
the prosecution. The accused did not object. After
permanent if the case is not revived within the
more than two years, the prosecution filed the
required period.
same information. Can it still be revived?
Requisites of Provisional Dismissal
➔ A: YES. A motion to withdraw information is
not time-barred and does not fall within the
1) There must be a motion by the prosecution
ambit of Sec. 8, Rule 117. Thus, the rule on
with the express conformity of the accused, or
provisional dismissal does not apply to a
by the accused himself, or by both the
motion to withdraw an information. (Torres vs.
prosecution and the accused for a provisional
Aguinaldo)
dismissal of the case;
I. Pre-trial (Rule 118)
2) The offended party is notified of the motion for
a provisional dismissal of the case;
Is pre-trial mandatory in criminal cases?
3) The court issues an order granting the motion
Yes. It is mandatory for both civil and criminal cases.
and dismissing the case provisionally;
In all criminal cases, pre-trial is mandatory in the
4) The public prosecutor is served with a copy of
following courts:
the order of provisional dismissal of the case
(People v. Lacson)
a) Sandiganbayan,
b) Regional Trial Court,
The rationale for the requirement of the express
c) Metropolitan Trial Court, Municipal Trial Court

in Cities, Municipal Trial Court, Municipal All agreements and admissions made or entered
Circuit Trial Court (Sec. 1, Rule 118) during the pre-trial conference shall be (a) reduced in
writing, and (b) signed by the accused and counsel. If
WHEN PRE-TRIAL SHALL BE HELD this is not followed, such admissions cannot be used
against the accused.
Once the court has acquired jurisdiction over the
person of the accused, the arraignment of the PRE-TRIAL ORDER
accused and the pretrial shall be set:
SECTION 4. Pre-trial Order. — After the pre-trial
a) Within ten (10) calendar days from date of the conference, the court shall issue an order reciting the
court's receipt of the case for a detained actions taken, the facts stipulated, and evidence
accused; and marked. Such order shall bind the parties, limit the
b) Within thirty (30) calendar days from the date trial to matters not disposed of, and control the course
the court acquires jurisdiction (either by arrest of the action during the trial, unless modified by the
or voluntary surrender) over a non-detained court to prevent manifest injustice.
accused.
Unless a shorter period is provided by special law or

J. Trial (Rule 119)
Supreme Court circular. (Revised Guidelines for
Continuous Trial of Criminal Cases)
Trial shall be set not later than thirty (30) days from the
termination of the pre-trial conference (A.M. No.
MATTERS TO BE CONSIDERED DURING THE 12-11-2-SC)
PRE-TRIAL
Trial once commenced shall continue from day to day
a) plea bargaining; as far as practicable until terminated. It may be
postponed for a reasonable period of time for good
b) stipulation of facts;
cause.
c) marking for identification of evidence of the
parties; The court shall, after consultation with the prosecutor
and defense counsel, set the case for continuous trial
d) waiver of objections to admissibility of
on a weekly or other short term trial calendar at the
evidence;
earliest possible time so as to ensure speedy trial. In
e) modification of the order of trial if the accused no case shall the entire trial period exceed one
admits the charge but interposes a lawful hundred eighty (180) days from the first day of trial,
defense; and except as otherwise authorized by the Supreme Court.
f) such other matters as will promote a fair and
The time limitations provided under this section and
expeditious trial of the criminal and civil
the preceding section shall not apply where special
aspects of the case.
laws or circulars of the Supreme Court provide for a
shorter period of trial.
Do we tackle the matter of amicable settlement in
the pre-trial of a criminal case?
Accused is entitled to speedy disposition of his
case
As a general rule, no, but we may tackle the possibility
of an amicable settlement with respect to the civil
aspect of the case. That can be subject to Cagang v. Sandiganbayan (2018)
compromise agreements that’s why we have the
Court-annexed mediation and JDR. (Justice Laguilles) The right to speedy disposition of cases should not be
confused with the right to a speedy trial. The right to a
NON-APPEARANCE IN THE PRE-TRIAL speedy trial is invoked against the courts in a criminal
CONFERENCE prosecution. The right to speedy disposition of cases,
however, is invoked even against quasi-judicial or
If the counsel for the accused or the prosecutor does administrative bodies in civil, criminal, or
not appear in the pre-trial conference, the court may administrative cases before them.
impose the proper sanctions or penalties, if the
counsel or prosecutor absent does not offer an The Court emphasized that a mere mathematical
acceptable excuse for his lack of cooperation (Sec. 3, reckoning of the time involved is not sufficient to rule
Rule 118) that there was inordinate delay. Courts should
appraise a reasonable period from the point of view of
PRE-TRIAL AGREEMENTS how much time a competent and independent public
officer would need in relation to the complexity of a

given case. no means to attend the same;
To determine if there was inordinate delay, the Court c) Other similar circumstances exist that would
applied the Barker balancing test. This test provides make him unavailable or prevent him from
that courts must consider the following factors when attending the trial.
determining the existence of inordinate delay: first, the
length of delay; second, the reason for delay; third, the Under any of the above conditions, the accused may
defendant’s assertion or non-assertion of his or her file a motion, with notice to the other parties, to have
right; and fourth, the prejudice to the defendant as a his witness conditionally examined. The motion shall
result of the delay. state: (a) the name and residence of the witness; (b)
the substance of his testimony; and (c) the reason or
For the court to appreciate a violation of the right to reasons for his inability to attend the trial.
speedy disposition of cases, delay must not be
attributable to the defense. When proven, this may CONDITIONAL EXAMINATION OF PROSECUTION
constitute a waiver of the right to speedy trial or the WITNESS (Sec. 15)
right to speedy disposition of cases.
The prosecution may also have its witness
conditionally examined if it satisfactorily appears that
ORDER OF TRIAL (Sec. 11) the witness is too sick or infirm to appear at the trial,
or has to leave the Philippines with no definite date of
The trial shall proceed in the following order: returning. The conditional examination shall be made
before the court where the case is pending and shall
a) The prosecution shall present evidence to be conducted in the same manner as an examination
prove the charge and, in the proper case, the at the trial. It shall be made in the presence of the
civil liability. accused who shall be notified of the same. Failure or
refusal of the accused to attend the examination after
b) The accused may present evidence to prove due notice shall be considered a waiver and the
his defense, and damages, if any, arising from statement taken therein may be admitted in behalf of
the issuance of a provisional remedy in the or against the accused. (Sec. 15, Rule 119)
case.
TAKING OF DEPOSITION IN CRIMINAL CASES
c) The prosecution and the defense may, in that
order, present rebuttal and sur-rebuttal People vs. Sergio (2019)
evidence unless the court, in furtherance of
justice, permits them to present additional Under exceptional circumstances, Rule 23, can be
evidence bearing upon the main issue. made applicable in criminal cases.
d) Upon admission of the evidence of the In this case, the circumstances are exceptional as to
parties, the case shall be deemed submitted warrant the liberal application of the rules to serve the
for decision unless the court directs them to ends of justice. The witness whose deposition shall be
argue orally or to submit written memoranda. taken is presently incarcerated in Indonesia as she
was sentenced to death by the Indonesian court. She
e) When the accused admits the act or omission is not allowed to leave her detention. Her movement is
charged in the complaint or information but controlled by Indonesian authorities. Thus, there is no
interposes a lawful defense, the order of trial way that Section 15, Rule 119 would be applicable.
may be modified. (reverse trial)
Similarly, the deposition by written interrogatories will
CONDITIONAL EXAMINATION OF DEFENSE not infringe the constitutional right to confrontation of
WITNESSES (Sec. 12) a witness of Cristina and Julius.
The right to confrontation is part of due process not

Witnesses for the accused may be conditionally
only in criminal proceedings but also in civil
examined even before the trial of the case when:
proceedings as well as in proceedings in
administrative tribunals with quasi-judicial powers. It
a) The witness is sick or infirm as to afford
has a two-fold purpose: (1) primarily, to afford the
reasonable ground for believing that he will
accused an opportunity to test the testimony of the
not be able to attend the trial;
witness by cross-examination; and (2) secondarily, to
allow the judge to observe the deportment of the
b) The witness resides more than one hundred
witness.
(100) kilometers from the place of trial and has

In this case, the two-fold purpose of the right to guilty; and

confrontation is complied with. By allowing the
accused or their counsel to submit written ■ The discharged defendant need not
cross-interrogatories, the accused right to be the least guilty; all the law requires,
cross-examine the witness was complied. On the in order to discharge an accused to
other hand, since the Judge would be present during use him as a state witness, is that the
the taking of deposition, he would be able to observe defendant whose exclusion is
the deportment of the witness while testifying. Thus, requested does not appear to be the
by the procedure adopted by the Judge, the two-fold most guilty, not necessarily that he
purpose of the right to confrontation will be served. was the least guilty (People v. Faltado)
5) Said accused has not at any time been

convicted of any offense involving moral
DISCHARGE TO BECOME A STATE WITNESS
turpitude (Sec. 17, Rule 119)
When two or more persons are jointly charged with Modes to become a state witness
the commission of any offense, upon motion of the
prosecution before resting its case, the court may a) By discharge from the criminal case pursuant
direct one or more of the accused to be discharged to Section 17 of Rule 119 of the Rules of
with their consent so that they may be witnesses for Court;
the state. The Court shall conduct a hearing in support
of the discharge. b) By the approval of his application for
admission into the Witness Protection
The evidence adduced in support of the discharge Program of the DOJ in accordance with
shall automatically form part of the trial. Republic Act No. 6981 (Ampatuan v. De Lima)
c) The power of the Ombudsman to grant
If the court denies the motion for discharge of the immunity under Sec. 17, RA 6770;
accused as state witness, his sworn statement shall
be inadmissible in evidence. d) Immunity under PD 749;
e) Immunity under EO 14-A;
The discharge of an accused shall amount to an
acquittal and shall be a bar to another prosecution for f) Immunity under the Comprehensive
the same offense, except if the accused fails or Dangerous Drugs Act of 2002, RA 9165; and
refuses to testify against his co-accused in g) Immunity and Protection under the Human
accordance with his sworn statement constituting the Security Act of 2007, RA 9372
basis for his discharge.
TRIAL IN ABSENTIA
Requisites before an accused may become a State
witness:
Requisites:
1) There is absolute necessity for the testimony
of the accused whose discharge is requested; 1) Accused has already been arraigned
2) Accused has been duly notified of the trial or
■ There must be an absolute necessity the hearings
for the testimony of the accused 3) Absence is unjustified
whose discharge is requested, and his
testimony should not simply Instances when presence of the accused required
corroborate or otherwise strengthen by law
the evidence in the hands of the
prosecution (People v. Borja) 1. Upon arraignment and in entering plea;
2. During trial when his presence is necessary
2) There is no other direct evidence available for for the purpose of identification;
the proper prosecution of the offense 3. Upon promulgation of judgment except for
committed, except the testimony of the said light offenses;
accused; 4. When the court with due notice requires so.
3) The testimony of said accused can be DEMURRER TO EVIDENCE

substantially corroborated in its material
points; A demurrer to evidence is actually a motion to dismiss
that is filed by the accused after the prosecution has
4) Said accused does not appear to be the most

rested its case. appeal or by certiorari before judgment.
After the prosecution rests its case, a demurrer to the ■ A demurrer to evidence must contain what is
evidence may be filed by the accused on the ground so fundamental in every demurrer. It must
of insufficiency of evidence. make reference to the insufficiency of the
evidence of the prosecution and must make
May the court dismiss the case for insufficiency of references to the evidence on record. Hence,
evidence motu proprio? a motion to dismiss not grounded upon the
insufficiency of the evidence, is not a
➔ A: YES. The court may on its own initiative demurrer under Sec. 23 of Rule 19.
dismiss the action without waiting for a
demurrer from the accused also on the K. Judgment (Rule 120)
ground of insufficiency of evidence but the
court shall do so only after giving the A judgment is the adjudication by the court that the
prosecution the opportunity to be heard (Sec. accused is guilty or not guilty of the offense charged
23, Rule 119) and the imposition on him of the proper penalty and
civil liability, if any (Sec. 1, Rule 120)
Demurrer to evidence with leave of court
Requisites of a judgment
If filed with leave of court and is denied by the Court,
the accused will still be allowed to present evidence. 1) Formal requisites of a judgment:
The motion for leave of court to file demurrer to a) It must be written in the official
evidence shall specifically state its grounds and shall language;
be filed within a non-extendible period of five (5) days
b) It must be personally and directly
after the prosecution rests its case. The prosecution
prepared and signed by the judge;
may oppose the motion within a non-extendible
period of five (5) days from its receipt. c) It must contain clearly and distinctly a
(i) statement of the facts, and (ii) the
The demurrer to evidence shall be filed within a law upon which it is based.
non-extendible period of ten (10) calendar days from
the date leave of court is granted, and the 2) The jurisdictional requirements before a
corresponding comment shall be filed within a judgment may be validly rendered are
non-extendible period of ten (10) calendar days jurisdiction over the subject matter, the
counted from date of receipt of the demurrer to territory and the person of the accused.
evidence. The demurrer shall be resolved by the court
within a non-extendible period of thirty (30) calendar The parties to a litigation should be informed of how it
days from date of the filing of the comment or lapse of was decided, with an explanation of the factual and
the ten (10)-day period to file the same. legal reasons that led to the conclusions of the trial
court. The losing party is entitled to know why he lost,
Demurrer to evidence without leave of court so he may appeal to the higher court, if permitted,
should he believe that the decision should be
If the demurrer is denied, the accused waives the right reversed. A decision that does not clearly and
to present evidence and submits the case for distinctly state the facts and the law on which it is
judgment on the basis of the evidence for the based leaves the parties in the dark as to how it was
prosecution. reached and is precisely prejudicial to the losing party,
who is unable to pinpoint the possible errors of the
Remember: court for review by a higher tribunal. (Lumanog v.
People)
■ The granting of demurrer to evidence is
tantamount to acquittal.
CONTENTS OF A JUDGMENT
■ Although the grant of a demurrer to evidence
amounts to an acquittal and that the order of A judgment of conviction shall state:
dismissal is not subject to appeal, it may be
reviewed thru certiorari. a) the legal qualification of the offense
constituted by the acts committed by the
■ The order denying the motion for leave of accused;
court to file demurrer to evidence or the
demurrer itself shall not be reviewable by b) the aggravating and mitigating circumstances
which attended the commission of the

offense; VARIANCE DOCTRINE
c) the participation of the accused in the offense The accused may be convicted only of the crime with
whether as principal, accomplice, or which he is charged. An exception to this rule is the
accessory; rule on variance in Section 4, Rule 120.
d) the penalty imposed upon the accused; Under Sec. 4, Rule 120, when there is a variance
between the offense charged in the complaint or
e) the civil liability or damages caused by his information and that proved, and the offense as
wrongful act or omission to be recovered from charged is included in or necessarily includes the
the accused by the offended party, if there is offense proved, the accused shall be convicted of the
any, unless the enforcement of the civil liability offense proved which is included in the offense
by a separate civil action has been reserved or charged, or of the offense charged which is included
waived (Sec. 2, Rule 120) in the offense proved.
A judgment of acquittal shall: An offense charged necessarily includes the offense

proved when some of the essential elements or
a) state whether or not the evidence of the ingredients of the former, as alleged in the complaint
prosecution (i) absolutely failed to prove the or information, constitute the latter.
guilt of the accused, or (ii) merely failed to
prove his guilt beyond reasonable doubt; Example: an accused charged with qualified rape can
be found guilty of the lesser crime of acts of
b) determine if the act or omission from which lasciviousness committed against a child.
the civil liability might arise did not exist (Sec.
2, Rule 120)
A verdict of acquittal is immediately final (People v.

PROMULGATION OF JUDGMENT
Serrano)
Acquittal which does not exempt the accused from It is the official proclamation or announcement of
civil liability judgment. It is promulgated by reading it in the
presence of the accused and any judge of the court
1. The acquittal is based on reasonable doubt. which it was rendered, or when the judgment is one of
2. Where the court declared that the liability of conviction for a light offense, in the presence of the
the accused is only civil. defendant’s counsel or representative. (Sec. 6, Rule
3. Where the civil liability of the accused does 120)
not arise from or is not based upon the crime
of the accused was acquitted. (Salazar vs. A judgment or sentence does not become a judgment
People) or sentence in law until the same has been read or
announced to the defendant or has become a part of
JUDGMENT RENDERED BY JUDGE WHO DID NOT the record of the court (U.S. vs. CFI of Manila)
HEAR CASE
The proper clerk of court shall give notice to the
The fact that the trial judge who rendered judgment accused personally or through his bondsman or
was not the one who had the occasion to observe the warden and counsel, requiring him to be present at
demeanor of the witnesses during trial, but merely the promulgation of the decision. If the accused was
relied on the records of the case, does not render the tried in absentia because he jumped bail or escaped
judgment erroneous, especially where the evidence on from prison, the notice to him shall be served at his
record is sufficient to support its conclusion. (People last known address.
v. Alfredo)
Authority to promulgate the judgment
JUDGMENT FOR TWO OR MORE OFFENSES
General Rule: It is the judge of the court who renders
When two or more offenses are charged in a single the judgment.
complaint or information but the accused fails to
object to it before trial, the court may convict him of Exceptions:
as many offenses as are charged and proved, and
impose on him the penalty for each offense, setting 1. The judge is absent or outside the province
out separately the findings of fact and law in each or city – Judgment may be promulgated by
offense. (Sec. 3, Rule 120) the clerk of court; and

2. Accused is confined or detained in another death penalty is imposed, a judgment becomes final
city - Judgment may be promulgated by the after the lapse of the period for perfecting an appeal,
executive judge of the RTC having jurisdiction or when the sentence has been partially or totally
over the place of confinement or detention satisfied or served, or when the accused has waived in
(Sec. 6, Rule 120). writing his right to appeal, or has applied for
probation.
Where there is not merely physical absence of the
judge who penned the decision, but the cessation or After the parties have already rested but before
termination of his incumbency as such judge, there is judgment, can the case be reopened for further
no judgment validly entered in such a case (Ong Siu reception of evidence?
vs. Paredes)
A: YES. However, it is necessary that hearing must
Rule if the accused fails to appear in the first be conducted. Thus, the procedure in Section 24,
promulgation of judgment Rule 119 must also be followed. (Cabarles vs.
Maceda)
If the accused fails to appear at the scheduled
promulgation of judgment despite notice, the Rule 119, Section 24. Reopening. — At any time
promulgation shall be made by recording the before finality of the judgment of conviction, the judge
judgment in the criminal docket and serving him a may, motu proprio or upon motion, with hearing in
copy thereof at his last known address or thru his either case, reopen the proceedings to avoid a
counsel. miscarrage of justice. The proceedings shall be
terminated within thirty (30) days from the order
If the judgment is for conviction, and the failure of the grating it.
accused to appear was without justifiable cause, he
shall lose the remedies available in the Rules of Court
against the judgment and the court shall order his
L. Motion for New Trial or Reconsideration (121)
arrest. Within fifteen (15) days from promulgation of
judgment, however, the accused may surrender and
The accused may file a motion for new trial or a
file a motion for leave of court to avail of the remedies.
motion for reconsideration of the judgment adverse to
He shall state the reason for his absence and if he
him. The court however, need not wait for a motion
proves the absence was justified, he shall be allowed
from the accused because it may, at its own instance,
to avail of the remedies within fifteen (15) days from
grant a new trial or a reconsideration of the judgment
notice (Sec. 6, Rule 120)
but with the consent of the accused (Sec. 1, Rule 121)
WHEN JUDGMENT BECOMES FINAL
If the accused files a motion for new trial or a motion
for reconsideration, he should file the motion at any
1) After the lapse of the period for perfecting an
time before the judgment of conviction becomes
appeal, or
final (Sec. 1, Rule 121)
2) When the sentence has been partially or
totally satisfied or served, or A motion for new trial or a motion for reconsideration
applies when the judgment is one of conviction and it
3) When the accused has waived in writing his is the accused, not the prosecution which avails of the
right to appeal, or same.
4) Has applied for probation. NEW TRIAL RECONSIDERATION

REMEDIES AGAINST A JUDGMENT OF Rehearing of a case May be filed in order to
CONVICTION already decided but correct errors of law or
before the judgment of fact in the judgment. It
1. Modification of Judgment (Sec. 7, Rule 120) conviction therein does not require any
2. Re-opening of the proceedings (Sec. 24, Rule rendered has become further proceeding.
119) final, whereby errors of
3. Motion for New Trial (Sec. 1, Rule 121) law or irregularities are
4. Motion for Reconsideration (Sec. 1, Rule 121) expunged from the
5. Appeal from judgment (Rule 122) record or new evidence
is introduced, or both
Rule 120, Section 7. Modification of judgment. — A steps are taken.
judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes
final or before appeal is perfected. Except where the

GROUNDS FOR A NEW TRIAL proceedings.
The principle underlying this rule is to afford the trial

a) That errors of law have been committed
court the opportunity to correct its own mistakes and
during the trial;
to avoid unnecessary appeals from being taken. The
b) That irregularities prejudicial to the substantial grant by the court of reconsideration should require no
rights of the accused have been committed further proceedings, such as taking of additional
during the trial; or proof.
c) That new and material evidence has been Form of motion

discovered.
The motion for new trial or reconsideration shall be in
New trial may be granted on the ground of errors of writing and shall state the grounds on which it is
law or irregularities during the trial, that is, errors of based. If based on newly-discovered evidence, the
law committed during the period from arraignment to motion must be supported by affidavits of witnesses
the rendition of judgment prejudicial to the substantial by whom such evidence is expected to be given or by
rights of the accused. If errors consist in the judgment, duly authenticated copies of documents which are
the remedy should be motion for reconsideration and proposed to be introduced in evidence. Notice of the
not motion for new trial because the court is not asked motion for new trial or reconsideration shall be given
to reopen the case but to reconsider its findings to the prosecutor (Section 4, Rule 121)
(People vs. Enriquez, 1951)
Effect of granting the motion
Requisites for newly discovered evidence (BERRY
RULE) When a new trial is granted on the ground of errors of
law or irregularities committed during the trial, all the
a) The evidence must have been discovered proceedings and evidence affected thereby shall be
after the trial; set aside and taken anew. The court may, in the
interest of justice, allow the introduction of additional
b) It could not have been previously discovered evidence (Section 6, Rule 121)
and produced at the trial even with the
exercise of reasonable diligence; When a new trial is granted on the ground of
newly-discovered evidence, the evidence already
c) The evidence is material, not merely adduced shall stand and the newly-discovered and
cumulative, corroborative, or impeaching; such other evidence as the court may, in the interest
of justice, allow to be introduced shall be taken and
d) The evidence must affect the merits of the considered together with the evidence already in the
case and produce a different result if record.
admitted.
In all cases, when the court grants new trial or
Can recantation be a basis of a new trial? reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
A recantation, as a general rule, is not sufficient to accordingly (Section 6, Rule 121)
warrant a new trial. If it were otherwise, a new trial
would be granted whenever an interested party “FRESH PERIOD” OR “NEYPES RULE”
succeeds in intimidating or inducing any or some of
the witnesses to retract after trial their testimony, thus, Neypes Rule applies to appeals in criminal cases. (Yu
opening the door to endless litigation. It is also v. Samson-Tatad)
injudicious to reject a testimony solely on the basis of
such recantation, which may later be repudiated, as If a motion for reconsideration or a motion for new trial
this "will make a solemn trial a mockery and place the is denied, such denial is to be deemed as the final
investigation at the mercy of unscrupulous witnesses. order. From receipt of such notice of denial, the
(People vs. Garcia, 1998) movant has another "fresh period" within which to
appeal. The new 15-day period may be availed of only
GROUNDS FOR RECONSIDERATION if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the
original appeal period from notice of the judgment.
a) Errors of law in the judgment which requires
no further proceedings; and
M. Search and seizure (Rule 126)
b) Errors of fact which also requires no further
A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a

judge and directed to a peace officer, commanding these applications must be expedited for time is of the
him to search for personal property described therein essence. Great reliance has to be accorded by the
and bring it before the court. (Sec. 1, Rule 126) judge to the testimonies under oath of the
complainant and the witnesses. (Chemise Lacoste,
Is search warrant a criminal action? S.A. v. Fernandez)
NO. A search warrant is not a criminal action nor does PROPERTY SUBJECT OF A SEARCH WARRANT
it represent a commencement of a criminal
prosecution even if it is entitled like a criminal action. It The property subject of a search warrant is personal
is not a proceeding against a person but is solely for property, not real property. A search warrant may be
the discovery and to get possession of personal issued for search and seizure of the following:
property. Since it is not a criminal action, it can be
prosecuted without the direct control and participation 1) Personal property subject of the offense;
of the public prosecutor (Worldwide Web Corp. vs. 2) Personal property stolen or embezzled and
People) other proceeds, or fruits of the offense; or
3) Personal property used or intended to be used
The power to issue search warrants is exclusively as a means of committing an offense (Sec. 3,
vested with the trial judges in the exercise of their Rule 126)
judicial functions (Skechers, USA v. Inter Pacific
Industrial Trading Corporation) Only the personal properties described in the search
warrant may be seized by the authorities.
COURT WHERE AN APPLICATION FOR A SEARCH
WARRANT IS FILED It is not required that the property to be seized should
be owned by the person against whom the search
warrant is directed. It is sufficient that the person
General Rule: An application for a search warrant
against whom the warrant is directed has control or
shall be filed before any court within whose territorial
possession of the property sought to be seized
jurisdiction a crime was committed (Sec. 2[a], Rule
(Burgos v. Chief of Staff)
126)
Exceptions: REQUISITES FOR THE ISSUANCE OF A SEARCH

WARRANT
1. For compelling reasons, any court within the
judicial region where the crime was committed 1) It must be issued upon probable cause in
if the place of the commission of the crime is connection with one specific offense;
known, or any court within the judicial region
where the warrant shall be enforced; ■ The single offense requirement is
meant to prevent the issuance of a
2. If the criminal action has been filed, the scattershot warrant (Tampasen vs.
application shall only be made in the court People)
where the criminal action is pending.
■ The one specific offense requirement
3. In case of search warrant involving heinous reinforces the constitutional
crimes, illegal gambling, illegal possession of requirement that a search warrant
firearms and ammunitions as well as violations should issue on the basis of probable
of the Comprehensive Dangerous Drugs Act cause (Stonehill vs. Diokno)
of 2002, the Intellectual Property Code, the
Anti-Money Laundering Act of 2001, the Tariff ■ The rule is not violated when search
and Customs Code, the Executive Judges warrant covers several counts of a
and whenever they are on official leave of certain specific offense (Columbia
absence or are not physically present in the Pictures vs. CA)
station, the Vice-Judges of RTCs of Manila
and Quezon City shall have the authority to 2) The probable cause must be determined by
act on the application filed by the PNP, NBI, the judge himself and not by the applicant or
PAOC-TF, REACT-TF (A.M. No. 99-10-09-SC) any other person;
EX PARTE APPLICATION FOR A SEARCH 3) In the determination of probable cause, the

WARRANT judge must examine, under oath or
affirmation, the complainant and such
An application for a search warrant is heard ex parte. witnesses as the latter may produce; and
It is neither a trial nor a part of the trial. Action on

4) The warrant issued must particularly describe Particularity in description of things to be seized
the place to be searched and persons or
things to be seized. The warrant is valid when it enables the police officers
to readily identify the properties to be seized and
What is probable cause in search warrant? leaves them with no discretion regarding the articles
to be seized.
The existence of such facts and circumstances which
would lead a reasonably discreet and prudent man to Technical precision of description is not required.
believe that the offense has been committed and that (Vallejo v. CA)
the objects sought in connection with the offense are
in the place to be searched. (Century Chinese "Books of accounts, financial records, vouchers,
Medicine Co. vs. People) journals, correspondence, receipts, ledgers, portfolios,
credit journals, typewriters, and other documents and
This probable cause must be shown to be within the papers showing all business transactions, including
personal knowledge of the complainant or the disbursement receipts, balance sheets and related
witnesses he may produce and not based on mere profits and loss statements” is too broad and general
hearsay. because it authorizes the search and seizure of
records pertaining to all business transactions of
Personal examination by judge of the applicant and petitioner herein, regardless of whether the
witnesses transactions were legal or illegal. (Stonehill v. Diokno)
The judge must, before issuing the warrant, personally Remember:

examine in the form of searching questions and
answers, in writing and under oath, the complainant ■ A search warrant shall be valid for ten (10)
and the witnesses he may produce on facts personally days from its date. Thereafter, it shall be void.
known to them and attach to the record their sworn
statements, together with the affidavits submitted. ■ The warrant shall be served in the daytime
and such fact must be so directed by the
Although there is no hard and fast rule governing how warrant. However, if the affidavit asserts that
a judge should conduct his investigation, it is the property is on the person or in the place
nevertheless required that the examination must be ordered to be searched, the warrant may
probing and exhaustive, not merely routinary, general, insert a direction that it may be served at any
peripheral, perfunctory or pro forma. The judge must time of the day or night.
not simply rehash the contents of the affidavit but
must make his own inquiry on the intent and ■ The search shall be made in the presence of
justification of the application. the lawful occupant of the house, room or any
other premises, or any member of the lawful
The requirement to attach to the records the occupant's family. In the absence of the latter,
depositions of the complainant and his witnesses the search shall be made in the presence of
and/or the transcript of the judge's examination is two witnesses of sufficient age and discretion
merely a procedural rule and not a component of the residing in the same locality. No search shall
right. In their absence, a warrant may still be upheld if be made except in the presence of the
there is evidence in the records that the requisite persons mentioned in the Rules.
examination was made and probable cause was
based thereon. (Ogayon vs. People) ■ Any objection concerning the issuance or
service of a warrant or a procedure in the
Particularity of place to be searched acquisition by the court of jurisdiction over the
person of the accused must be made before
The executing officer's prior knowledge as to the he enters his plea, otherwise, the objection is
place intended in the warrant is relevant. deemed waived.
Description of the place to be searched is sufficient if ■ A motion to quash a search warrant and/or to
the officer with the warrant can, with reasonable effort, suppress evidence obtained thereby may be
ascertain and identify the place intended and filed in and acted upon only by the court
distinguish it from other places in the community. Any where the action has been instituted. If no
designation or description that points out the place to criminal action has been instituted, the motion
the exclusion of others, and on inquiry leads the may be filed in and resolved by the court that
officers unerringly to it, satisfies the constitutional issued the search warrant. However, if such
requirement. court failed to resolve the motion and a
criminal case is subsequently filed in another

court, the motion shall be resolved by the the subsequent warrantless search is not valid. He is
latter court. deemed to have waived his right to question the
validity of his arrest when he never objected to the
■ Well-settled is the rule that the legality of a irregularity of his arrest before his arraignment. It is his
seizure can be contested only by the party first time to raise the issue. He actively participated in
whose rights have been impaired thereby, and the trial of the case and voluntarily submitted to the
the objection to an unlawful search and jurisdiction of the court.
seizure is purely personal and cannot be
availed of by third parties. The sachet of shabu seized from him during the
warrantless search is inadmissible in evidence against
EXCEPTIONS TO SEARCH WARRANT him. It was confiscated during a warrantless search
REQUIREMENT incidental to an unlawful arrest. There was no
sufficient probable cause to effect a valid warrantless
arrest because appellant herein did not perform some
1) Search incidental to a lawful arrest
overt act that would indicate that he had committed,
2) Seizure of evidence in plain view was actually committing, or was attempting to commit
an offense. The tip or “reliable information” alone is
3) Search of a moving vehicle
not sufficient to justify a warrantless arrest.
4) Checkpoints; body checks in airports
A waiver of an illegal, warrantless arrest does not carry
5) Consented warrantless search
with it a waiver of the inadmissibility of evidence
6) Stop and Frisk seized during an illegal warrantless arrest.
7) Custom search
2. Seizure of evidence in plain view
8) Exigent or emergency circumstances
9) Search of vessels and aircraft ■ Under the plain view doctrine, objects falling
in the plain view of an officer who has a right
10) Inspection of buildings and other premises for to be in the position to have that view are
the enforcement of fire, sanitary or building subject to seizure and may be presented as
regulations evidence.
1. Search incidental to a lawful arrest ■ Requisites:
■ A person illegally arrested cannot be validly ○ the law enforcement officer in search
searched without a warrant. of the evidence has a prior
justification for an intrusion or is in a
■ In searches incident to lawful arrest, the position from which he can view a
arrest must precede the search and the particular area;
process cannot be reversed, unless the police
officers have probable cause to make the ○ the discovery of the evidence in plain
arrest at the outset of the search. view is inadvertent; and
■ It is limited to search for dangerous weapons, ○ it is immediately apparent to the

for anything that may have been used for the officer that the item he observes may
commission of the offense, or proof of the be evidence of a crime, contraband or
commission of the offense. otherwise subject to seizure.
■ A valid arrest allows the seizure of evidence or ■ It is usually applied where a police officer is
dangerous weapons either on the person of not searching for evidence against the
the one arrested or within the area of his accused, but nonetheless inadvertently comes
immediate control. (Valeroso v. CA) across an incriminating object.
The phrase "within the area of his immediate The requirement of inadvertence means that
control" means the area from within which he the officer must not have known in advance of
might gain possession of a weapon or the location of the evidence and discovery is
destructible evidence. not anticipated.
People v. Racho (2010) ■ Not only must the item be in plain view. Its
incriminating character must also be
He can no longer question the validity of his arrest but

"immediately apparent". silence. (People v. Cogaed)
■ Plain view doctrine does not apply where the 6. Stop and Frisk
police officers did not just accidentally
discover the evidence but actually searched ■ While probable cause is not required to
for it. conduct a "stop and frisk" it nevertheless
holds that mere suspicion or a hunch will not
3. Search of a moving vehicle validate a "stop and frisk." A genuine reason
must exist, in light of the police officer's
■ What the officers do in a search of a moving experience and surrounding conditions, to
vehicle is to simply conduct a cursory visual warrant the belief that the person detained
examination. has weapons concealed about him.
■ Peace officers are limited only to routine ■ Terry Doctrine

checks where examination of a vehicle is
limited to visual inspection. Before the vehicle A valid “stop” by an officer requires that he
may be subjected to extensive search, such has reasonable, and articulable belief that
would be permissible only if officers made it criminal activity has happened or is about to
upon probable cause. happen. The “frisk” made after the “stop”
must be done because of a reasonable belief
4. Checkpoints that the person stopped is in possession of a
weapon that will pose danger to the officer
■ Searches conducted in checkpoints are valid and others. The “frisk” must be a mere pat
for as long as they are warranted by down outside the person’s outer garment and
exigencies of public order and are conducted not unreasonably intrusive.
in a way least intrusive to motorists. (People v.
Vinecario)
■ For as long as the vehicle is neither searched Search incidental to lawful arrest vs. Stop and
nor its occupants subjected to a body search, Frisk
and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be Searches incidental to a lawful arrest presupposes
regarded as violative of an individual's right that the crime is committed in flagrante delicto and the
against unreasonable search. (Valmonte v. De search conducted within the vicinity and within the
Villa) reach by the person arrested is done to ensure that
there are no weapons, as well as to preserve
■ Vehicles may be stopped and extensively evidence.
searched when there is probable cause which
justifies a reasonable belief of the men at the Whereas, stop and frisk search can be conducted
checkpoints that either the motorist is a law either to prevent the occurrence of a crime or for the
offender or the contents of the vehicle are or safety and self preservation of police officers.
have been instruments of some offense.
EFFECT OF AN ILLEGAL SEARCH AND SEIZURE;
5. Consented warrantless search FRUIT OF THE POISONOUS TREE DOCTRINE
■ A consented search occurs when a person

The illegality of a search and a seizure occurs not only
gives a law enforcement agent permission to
from the failure to obtain a warrant when required but
search in areas in which such person has a
also from the failure to comply with the procedures for
reasonable expectation of privacy.
obtaining a warrant and in the execution of the same.
Such failure will result in the application of the
■ Doubtless, the constitutional immunity against
exclusionary rule.
unreasonable searches and seizures is a
personal right which may be waived. The
The exclusionary rule prevents, upon proper motion or
consent to a warrantless search must be
objection, the admission of evidence illegally
voluntary, that is, unequivocal, specific, and
obtained. Thus, the most important effect of an
intelligently given, uncontaminated by any
illegal search and seizure is the exclusion of the
duress or coercion. Hence, consent to a
evidence obtained from being used against the
search is not to be lightly inferred, but must be
person whose rights were violated by the search,
shown by clear and convincing evidence.
the evidence being the proverbial and jurisprudential
■ Consented search cannot be inferred by

"fruit of the poisonous tree.” may be recovered from the accused in the following
cases:
REMEDIES AGAINST AN UNLAWFUL SEARCH
a) When the accused is about to abscond from
1) Motion to quash the search warrant; the Philippines;
2) Motion to suppress as evidence the objects
illegally taken; b) When the criminal action is based on a claim
3) Replevin, if the objects are legally possessed; for money or property embezzled or
and fraudulently misapplied or converted to the
4) Certiorari, where the search warrant is a use of the accused who is a public officer,
patent nullity. officer of a corporation, attorney, factor,
broker, agent, or clerk, in the course of his
The remedies are alternative. If motion to quash is employment as such, or by any other person
denied, a motion to suppress cannot be availed in a fiduciary capacity, or for a willful violation
consequently. of duty;
N. Provisional remedies in criminal cases (Rule c) When the accused has concealed, removed,
127) or disposed of his property, or is about to do
so; and
Kinds of Provisional Remedies available in criminal
cases d) When the accused resides outside the
Philippines.
1. Attachment (Rule 57);
2. Preliminary Injunction (Sec. 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);
5. Support pendente lite (Rule 61).
Availability of provisional remedies
The provisional remedies in civil actions, insofar as

they are applicable, may be availed of in connection
with the civil action deemed instituted with the
criminal action.
To avail of a provisional remedy in a criminal action, it

must be one with a corresponding civil liability. If there
is a civil liability, the civil action must be one arising
from the offense charged and which is instituted in the
said criminal action. Hence, if the civil action has been
waived, reserved or instituted separately, the
provisional remedy applicable may not be availed of in
the criminal action. Instead, the provisional remedy
should be applied for in the separate civil action
instituted.
For instance, in a criminal action where the civil liability

includes support for the offspring as a consequence
of the crime, and the civil aspect thereof has not been
waived, reserved or instituted separately, the accused
may be ordered to provide support pendente lite to
the child born to the offended party.
When preliminary attachment is available
When the civil action is properly instituted in the

criminal action as provided in Rule 111, the offended
party may have the property of the accused attached
as security for the satisfaction of any judgment that

O. Revised Guidelines on Continuous Trial (A.M. i. Motion for Judicial Determination of

No. 15-06-10- SC) Probable Cause
ii. Motion for preliminary investigation
What is a continuous trial system?
filed beyond the five (5)-day
reglementary period in inquest
The continuous trial system is a mode of judicial
proceedings under Sec. 6, Rule 112,
fact-finding and adjudication conducted with speed
or when preliminary investigation is
and dispatch so that trials are held on scheduled
required under Sec. 8, Rule 112, or
dates without needless postponement, the factual
allowed in inquest proceedings and
issues for trial, well-defined at the pre-trial and the
the accused failed to participate in the
whole proceedings terminated and ready for judgment
preliminary investigation despite due
within ninety (90) days from the date of the initial
notice.
hearing, unless for meritorious reasons, an extension
is permitted. The system requires the presiding judge iii. Motion for reinvestigation of the
adhere faithfully to the session hours prescribed by prosecutor recommending the filing of
law, to maintain full control of the proceedings, and to information once the information has
efficiently allocate and use time and court resources to been filed before the court (1) if the
avoid delays (A.M. No. 18-03-09-SC, June 26, 2018) motion is filed without prior leave of
court; (2) when preliminary
The “Revised Guidelines for Continuous Trial is investigation is not required under
specifically directed to Judges” more than anybody Sec. 8, Rule 112; and (3) when the
else. regular preliminary investigation is
required and has been actually
This is clear from the concept of continuous trial conducted, and the grounds relied
system wherein Judges are required to adhere upon in the motion are not
faithfully to the session hours prescribed by law, to meritorious, such as issues of
maintain full control of the proceedings, and to credibility, admissibility of evidence,
efficiently allocate and use time and court resources to innocence of the accused, or lack of
avoid delays. due process when the accused was
actually notified, among others.
APPLICABILITY
iv. Motion to quash information when the
ground is not one of those stated in
The Revised Guidelines for Continuous Trial of
Sec. 1, Rule 117.
Criminal Cases (Revised Guidelines) shall apply to all
newly-filed criminal cases, including those governed v. Motion for bill of particulars that does
by Special Laws and Rules, in the First and Second not conform to Sec. 9, Rule 116.
Level Courts, the Sandiganbayan and the Court of Tax
vi. Motion to suspend the arraignment
Appeals as of effectivity date. The Revised Guidelines
based on grounds not stated under
shall also apply to pending criminal cases with respect
Sec. 11, Rule 116.
to the remainder of the proceedings.
vii. Petition to suspend the criminal action
Unless otherwise specifically provided herein, the on the ground of prejudicial question,
Revised Guidelines shall not apply to criminal cases when no civil case has been filed,
filed under the Rule on Summary Procedure. pursuant to Sec. 7, Rule 111.
PROCEDURE What should the Court do to prohibited motion?
A. HEARINGS Prohibited motions shall be denied outright before the

scheduled arraignment without need of comment
Trial shall be held from Monday to Thursday, and and/or opposition.
courts shall call the cases at exactly 8:30 A.M. and
2:00 P.M., pursuant to Administrative Circular No. 3- b. Meritorious Motions
99. i. Motion to withdraw information, or to
downgrade the charge in the original
Hearing on motions, arraignment and pre-trial, and information, or to exclude an accused
promulgation of decisions shall be held in the morning originally charged therein, filed by the
of Fridays, pursuant to Sec. 7, Rule 15 of the Rules of prosecution as a result of a
Court. reinvestigation, reconsideration, and
review;
B. MOTIONS
ii. Motion to quash warrant of arrest;
a. Prohibited Motions

iii. Motion to suspend arraignment on the receipt of the motion for reconsideration within which
ground of an unsound mental to submit its comment. Thereafter, the motion for
condition under Sec. 11 (a), Rule 116; reconsideration shall be resolved by the court within a
non-extendible period of five (5) calendar days from
iv. Motion to suspend proceedings on
the expiration of the five (5)-day period to submit the
the ground of a prejudicial question
comment.
where a civil case was filed prior to
the criminal case under Sec. 11 (b),
Motion for Postponement
Rule 116;
v. Motion to quash information on the A motion for postponement is prohibited, except if it is
grounds that the facts charged do not based on acts of God, force majeure or physical
constitute an offense, lack of inability of the witness to appear and testify.
jurisdiction, extinction of criminal
action or liability, or double jeopardy A motion for postponement, whether written or oral,
under Sec. 3, par. (a), (b), (g), and (i), shall at all times be accompanied by the original
Rule 117; official receipt from the Office of the Clerk of Court
evidencing payment of the postponement fee under
vi. Motion to discharge accused as a
Sec. 21 (b), Rule 141, to be submitted either at the
state witness under Sec. 17, Rule 119;
time of the filing of said motion or not later than the
vii. Motion to quash search warrant under next hearing date. The Clerk of Court shall not accept
Sec. 14, Rule 126, or motion to the motion unless accompanied by the original
suppress evidence; and receipt.
viii. Motion to dismiss on the ground that
C. CONSOLIDATIONS
the criminal case is a Strategic
D. Revival of Provisionally Dismissed Cases
Lawsuit against Public Participation
E. Arraignment and Pre-trial
(SLAPP) under Rule 6 of the Rules of
F. Mediation
Procedure for Environmental Cases.
G. Bail
H. Form of Testimony
Procedure in resolving meritorious motions
I. Trial
J. Memoranda
The comment of the adverse party shall be filed within
K. Promulgation
a non-extendible period of ten (10) calendar days from
notice/receipt of the order of the court to file the
P. The Rule on Cybercrime Warrants (A.M. No.
same, and the court shall resolve the motion within a
17-11-03-SC)
non-extendible period of ten (10) calendar days from
the expiration of the ten (10)-day period, with or
It sets out the procedure for the preservation,
without comment.
disclosure, interception, search, seizure, and/or
examination, custody, and destruction of computer
The court, at its discretion, may set the motion for
data as provided under the Cybercrime Prevention Act
hearing within a non-extendible period of ten (10)
of 2012 (R.A. 10175)
calendar days from the expiration of the ten (10)-day
period to file comment, in which case the same shall
SUPPLEMENTARY NATURE
be submitted for resolution after the termination of the
hearing, and shall be resolved within a nonextendible
This Rule supplements the existing Rules of Criminal
period of ten (10) calendar days thereafter. Reply and
Procedure, which provisions shall continue to govern
memorandum need not be submitted.
the preliminary investigation and all stages of
prosecution of criminal actions involving violations of
In case of a motion to discharge accused as state
RA 10175, including all crimes defined and penalized
witness under Sec. 17, Rule 119, where the
by the Revised Penal Code, as amended, and special
prosecution is required to present evidence in support
laws, committed by, through, and with the use of
thereof, such motion shall be submitted for resolution
information and communications technologies.
from the termination of the hearing, and shall be
resolved within a non-extendible period of ten (10)
DEFINITIONS.
calendar days thereafter.
■ Communication – refers to the transmission
The motion for reconsideration of the resolution of a
of information through information and
meritorious motion shall be filed within a
communications technology (ICT) media,
nonextendible period of five (5) calendar days from
including voice, video, and other forms of
receipt of such resolution, and the adverse party shall
data;
be given an equal period of five (5) calendar days from

■ Content data – refers to the content of the information contained in the form of computer
communication, the meaning or purported data or any other form that is held by a
meaning of the communication, or the service provider, relating to subscribers of its
message or information being conveyed by services, other than traffic or content data,
the communication, other than traffic data; and by which any of the following can be
established:
■ Cybercrime court – refers to any of the
Regional Trial Courts which are designated as ■ The type of communication service used, the
special cybercrime courts; technical provisions taken therewith, and the
period of service;
■ Forensic image – also known as a forensic
copy, refers to an exact bit-by-bit copy of a ■ The subscriber’s identity, postal or geographic
data carrier, including slack, unallocated address, telephone and other access number,
space, and unused space; any assigned network address, billing and
payment information that are available on the
■ Interception – refers to listening to, recording, basis of the service agreement or
monitoring or surveillance of the content of arrangement; or
communications, including procuring of the
content data, either directly, through access ■ Any other available information on the site of
and use of a computer system, or indirectly the installation of communication equipment
through the use of electronic eavesdropping that is available on the basis of the service
or tapping devices, at the same time that the agreement or arrangement.
communication is occurring;
WHO CAN ISSUE CYBERCRIME WARRANTS?
■ Off-site search – refers to the process
whereby law enforcement authorities, by These warrants shall be issued by designated
virtue of a warrant to search, seize, and Cybercrime courts, which are also the special
examine, are allowed to bring the computer commercial courts under the Regional Trial Courts as
device/s and/or parts of the computer system indicated under A.M. No. 03-03-03-SC.
outside the place to be searched in order to
conduct the forensic examination of the WHO SHALL ACQUIRE JURISDICTION OVER THE
computer data subject of the warrant; CYBERCRIME OFFENSES?
■ On-site search – refers to the process
Cybercrime court where:
whereby law enforcement authorities, by
virtue of a warrant to search, seize, and
1) The cybercrime offense was committed;
examine, obtains the computer data subject
thereof for forensic examination, without the 2) Where any part of the computer system used
need of bringing the related computer is situated,
device/sand/or parts of the computer system
outside the place to be searched; 3) The place where the damage was caused.
■ Preservation – refers to the keeping of data
All other crimes defined and penalized by the Revised
that already exists in a stored form, protected
Penal Code, as amended, and other special laws,
from anything that would cause its current
committed by, through, and with the use of ICT, as
quality or condition to change or deteriorate;
provided under Section 6, Chapter II of RA 10175,
■ Service provider – refers to: (a) any public or shall be filed before the regular or other specialized
private entity that provides users of its service regional trial courts, as the case may be.
the ability to communicate by means of a
computer system; and (b) any other entity that Note: The cybercrime courts in Quezon City, the City
processes or stores computer data on behalf of Manila, Makati City, Pasig City, Cebu City, Iloilo
of such communication service or users of City, Davao City and Cagayan De Oro City shall have
such service; the special authority to act on applications and issue
warrants which shall be enforceable nationwide and
■ The term service provider as used in this Rule outside the Philippines.
is understood to include any service provider
offering its services within the territory of the WHO CAN FILE THE CYBERCRIME WARRANTS?
Philippines, regardless of its principal place of
business; Law enforcement authorities before any of the
designated Cybercrime courts.
■ Subscriber’s information – refers to any

WHERE CAN THE CYBERCRIME WARRANT BE Requirements for service provider:

ENFORCED?
Preserve data for a minimum period of six (6) months
Within and outside the Philippines and further six (6) months from the date of receipt of
the order from law enforcement authorities.
EFFECTIVE PERIOD OF WARRANTS.
Law enforcement may order a one-time extension for
Not exceeding 10 days from its issuance. May be another six (6) months provided that notification shall
extended for 10 days from the expiration of the be made to the Office of the Prosecutor upon
original period based on justifiable reasons. transmission.
CONTENTS OF APPLICATION OF A CYBERCRIME Does the provider need to disclose to the

WARRANT subscriber regarding a preservation order issued?
1) The probable offense involved; NO. The provider shall keep the preservation order
and its compliance confidential.
2) Relevance and necessity of the data being
obtained DISCLOSURE OF COMPUTER DATA.
3) Name of individuals or entities involved ■ Disclosure Warrant is issued for disclosing the
data of a subscriber, including all network
4) Particular description of the data sought to be traffic and data related.
obtained
■ Unlike a preservation warrant, this actually will
5) Place where information is to enforced allow law enforcement to view the data.
6) Manner or method by which the disclosure of Requirements for service provider

the computer data or subscriber’s information
is to be carried out, if available; Disclose or submit subscriber’s information, traffic
data or other relevant data.
7) Other relevant information.
How long does the service provider have to
TYPES OF CYBERCRIME WARRANTS comply with the disclosure warrant?
1) Preservation Warrant Within seventy-two (72) hours.
2) Disclosure Warrant Are law enforcement allowed to keep copies of the

data obtained from the disclosure warrant?
3) Interception Warrant
Yes, provided that they keep the details and contents
4) Search, Seizure and Examination Warrant of the data strictly confidential for purposes of
investigation.
5) Examination Warrant for Lawfully Obtained
Data WARRANT TO INTERCEPT COMPUTER DATA
(WICD)
6) Destruction Warrant
■ Interception warrant is issued to law
PRESERVATION OF COMPUTER DATA. enforcement, enabling them to conduct
activities such as listening, recording,
■ Preservation Warrant is usually issued for law monitoring and surveillance of data through
enforcement authorities ordering a provider to the use of electronic tapping or interception of
preserve data while law enforcement works to computer data pertaining to the accused.
obtain a disclosure warrant.
Does law enforcement need to disclose the
■ This does not allow law enforcement to view interception to the accused?
the data but merely to order the provider to
hold on to the data of the subscriber. No. Except, if no return has been filed by the law
enforcement agent to the court. In case of no return
■ A service provider may be a filed, the accused shall be informed of all interception
telecommunications or infrastructure provider. activities conducted pertaining to his person and his

data. items turned over to its custody if no preliminary

investigation or case involving these items has been
WARRANT TO SEARCH, SEIZE AND EXAMINE instituted after thirty-one (31) days from their deposit,
COMPUTER DATA (WSSECD). or if preliminary investigation has been so instituted
within this period, upon finality of the prosecutor’s
Law enforcement may seize and conduct a search resolution finding lack of probable cause.
and examination of the data obtained from an
accused. How shall the destruction of the data be made?
Off-site and On-site Principle The court shall ask for the retained copy from law
enforcement and in the presence of the Clerk of Court,
Law enforcement shall endeavor to first make a the accused and his counsel, destroy the data through
forensic image of the computer data on-site as well as shredding, drilling of four holes on the device, prying
limit their search to the place specified in the warrant. the platters or other methods accepted by
Otherwise, off-site search may be conducted provided international standards of data destruction.
that a forensic image is made, and that the reasons for
the off-site search are stated in the initial return.
Can the accused seek return of the seized and

searched items and data?
Yes, provided that a forensic image has been made by

law enforcement. Forensic image is a copy of the
entire data structure of an item.
Can interception of communications and data be

done even in a search, seizure and examination
warrant?
Yes, provided that such interception is reasonably

related to the data being seized, searched or
examined.
How long shall the examination of data be

conducted by law enforcement?
Upon the discretion of the court, provided it shall not

be extended for more than thirty (30) days.
WARRANT TO EXAMINE COMPUTER DATA

(WECD).
Examination Warrant or Warrant to Examine Computer

Data (WECD) is a warrant issued when an item has
been seized through lawful warrantless arrest by law
enforcement for the purpose of forensic examination
of data.
DESTRUCTION OF COMPUTER DATA
Destruction Warrant allows law enforcement to

partially or completely destroy data subject to
preservation and examination.
May the court order the return of the data subject

for destruction?
Yes. The court may, motu proprio, and upon written

notice to all the parties concerned, order the complete
or partial destruction, or return to its lawful owner or
possessor, of the computer data or any of the related

mandatory for the OGCLSBSP. Hence, We cannot

VII. EVIDENCE
subscribe to Norlina's tenacious insistence for the
OGCLS-BSP to strictly adhere to the Rules of Court
A. General concepts so as not to purportedly defeat her rights.
Rule 128, Section 1. Evidence defined. – Evidence is Manalo v. TNS Phil

the means, sanctioned by these [R]ules, of ascertaining
in a judicial proceeding the truth respecting a matter of The technical rules of evidence are not binding on
fact. labor tribunals.
Rule 128, Section 2. Scope. The rules of evidence shall Castillo v. Prudentialife Plans, Inc.
be the same in all courts and in all trials and hearings,
except as otherwise provided by law or these rules. Written statements of certain employees can be
admitted even if they were not cross-examined. The
Principle of Uniformity → Rules on evidence shall be rules of evidence are not strictly observed in
the same in all courts and all trials and hearings. proceedings before the NLRC which are summary in
nature and decisions may be made on the basis of
The rule does not apply to election cases, land position papers.
registration and cadastral cases, naturalization and
insolvency proceedings, except by analogy or in a Sasan, Sr., v. NLRC
suppletory character and whenever practicable and
convenient (Sec. 4, Rule 1) Here, the respondent submitted documents before the
NLRC which was not presented before the Labor
Is the rule on electronic evidence applicable to Arbiter. It was considered by the NLRC. The SC ruled
criminal cases? that in that situation, the NLRC may consider evidence
even for the first time on appeal since technical rules
A: Yes. The SC in People vs. Enojas ruled: As to the of evidence are not bonding in labor cases.
admissibility of the text messages, the RTC admitted
them in conformity with the Court's earlier Resolution In the same case, the SC ruled that even photocopies
applying the Rules on Electronic Evidence to criminal can be admitted as evidence.
actions (A.M. No. 01-7-01-SC)
Cirtek Employees Labor Union-Federation of Free
Workers v. Cirtek Electronics
Ong Chia v. Republic
Parol evidence rule, like other rules of evidence,
According to SC, the rule on formal offer of evidence
should not be strictly applied in labor cases. Hence, a
is not applicable to petition for naturalization unless
Labor Arbiter is not precluded from accepting and
applied by analogy or in a suppletory character and
evaluating evidence other than, and even contrary to,
whenever practicable and convenient.
what is stated in the CBA.
Sugar Regulatory Administration v. Tormon
Implied from the definition of “evidence” is the need
The general rule is that administrative agencies are not for the introduction of evidence when the court has to
bound by the technical rules on evidence. It can resolve a question of fact. Where no factual issue
accept documents which cannot be admitted in a exists in a case, there is no need to present evidence
judicial proceeding where the Rules of Court are because where the case presents a question of law,
strictly observed. It can choose to give weight or such question is resolved by the mere application of
disregard such evidence, depending on its the relevant statutes of this jurisdiction to which no
trustworthiness. evidence is required.
Sibayan v. Alda Instances where evidence is no longer required
It bears stressing that the proceeding involved in the 1. When the pleadings in a civil case fail to
present case is administrative in nature. Although trial tender an issue. Judgment on the pleading
courts are enjoined to observe strict enforcement of will ensue in accordance with Rule 34.
the rules on evidence, the same does not hold true for 2. When parties stipulated on certain facts.
administrative bodies. The Court has consistently held 3. When a fact is subject to judicial notice.
that technical rules applicable to judicial proceedings 4. When the fact is judicially admitted
are not exact replicas of those in administrative 5. When the law or rule presumes the truth of a
investigations. Recourse to discovery procedures as fact.
sanctioned by the Rules of Court is then not

1. Proof vs. evidence BURDEN OF EVIDENCE
PROOF EVIDENCE Burden of evidence is the duty of a party to present

evidence sufficient to establish or rebut a fact in issue
product of evidence medium of proof to establish a prima facie case. Burden of evidence
may shift from one party to the other in the course
of the proceedings, depending on the exigencies of
FACTUM PROBANDUM FACTUM PROBANS the case (Section 1, Rule 131)
Ultimate fact Evidentiary fact 3. Equipoise rule
The objective The means Where the evidence of the parties is evenly balanced,
or there is doubt on which side the evidence
the fact or proposition to the fact or material preponderates, the decision should be against the
be established evidencing the fact or party with the burden of proof.
proposition to be
established. In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
the fact to be proved; it The probative or constitutional presumption of innocence tilts the
is the fact which is in evidentiary fact tending scales in favor of the accused. (Tin v. People)
issue in a case and to to prove the fact in issue.
which the evidence is B. Admissibility
directed. 1. Requisites (Rule 128)
Illustrations: Rule 128, Section 3. Admissibility of evidence. –

Evidence is admissible when it is relevant to the issue
1) In a suit involving damage to property caused and not excluded by the Constitution,the law or these
by the negligence of the defendant, the Rules.
factum probandum is the negligence of the
defendant that caused damage to the The new rule clarifies that the competency of the
property of the plaintiff. The factum probans evidence is not only determined by the Rules of Court
are the evidences, whether it be object, and the law, but also by the constitution.
testimonial, documentary, to prove the
negligence of the defendant. REQUISITES OF ADMISSIBILITY
2) In civil cases, the factum probandum is the 1) Relevancy

elements of the cause of action which are 2) Competency
denied by the defendant.
1. Relevancy
3) In criminal cases the factum probandum refers
to matters which the prosecution must prove
Rule 128, Section 4. Relevancy; collateral matters. –
beyond reasonable doubt in order to justify
Evidence must have such a relation to the fact in issue
the conviction.
as to induce belief in its existence or non-existence.
Evidence on collateral matters shall not be allowed,
Note: The mere filing of the complaint or information
except when it tends in any reasonable degree to
does not ipso facto give rise to a factum probandum.
establish the probability or improbability of the fact in
issue.
2. Burden of proof vs. burden of evidence
(thorough discussion is at the latter part of Evidence; For purposes It is the relationship of evidence to the fact in issue. If
of the bar, I will only state here the possible answer in case the the evidence will tend to prove the fact in issue, then
examiner asked for a distinction between the two) the evidence is relevant. If there is no connection at
all, then the evidence is not relevant.
BURDEN OF PROOF
To be relevant, evidence must relate to an issue of
Burden of proof is the duty of a party to present fact. If not, then it is irrelevant. If you introduce
evidence on the facts in issue necessary to establish evidence for a fact not alleged in the pleading, then
his or her claim or defense by the amount of evidence the introduction of such evidence may be objected for
required by law. Burden of proof never shifts. being irrelevant.
(Section 1, Rule 131)
Q: A was charged for killing B. The information was

captioned as Murder. However, the Information and competence, while the weight of evidence
failed to allege circumstances which would qualify pertains to evidence already admitted and its
the killing to murder. During trial, the prosecution tendency to convince and persuade. The admissibility
introduced evidence of treachery. If you are the of a particular item of evidence has to do with whether
counsel for the defense, what procedural action will it meets various tests by which its reliability is to be
you do to protect the interest of your client? determined, so as to be considered with other
evidence admitted in the case in arriving at a decision
➔ A: I will object to the presentation of evidence of as to the truth.
treachery on the ground of relevancy. The
qualifying circumstance was not put as an issue The weight of evidence is not determined
for failure to allege the same in the Information. mathematically by the numerical superiority of the
Under Section 8, Rule 110, it is required that the witnesses testifying to a given fact, but depends upon
qualifying and aggravating circumstance must its practical effect in inducing belief on the part of the
be specified in the Information. judge trying the case. "Admissibility refers to the
question of whether certain pieces of evidence are to
Collateral Matters be considered at all, while probative value refers to the
question of whether the admitted evidence proves an
Collateral matters are not direct evidence. It is just issue.
additional or auxiliary evidence to the fact in issue. It
could not directly prove the fact in issue.
KINDS OF ADMISSIBILITY
It is generally not allowed.
a) Multiple Admissibility – Evidence which is
Exception: It may be admitted if it has the tendency admissible for two or more purposes.
to induce belief as to the probability or improbability of
the issues of the case as when it would have the Example: Declaration of dying person = can
effect of corroborating or supplementing facts be admitted for Res Gestae, Dying
previously established by direct evidence. declaration, Declaration against interest
2. Competency b) Conditional admissibility – Sometimes the

relevance of an evidence is not readily
It is one that is not excluded by the constitution, law apparent at the time it is offered, but the
or rules. relevance of which may be seen when
connected to other pieces of evidence not yet
Competence, in relation to evidence in general, refers offered. In which case, such evidence may be
to the eligibility of an evidence to be received as such. admitted conditionally.
IS ADMISSIBILITY OF EVIDENCE THE SAME AS Example: The plaintiff filed a complaint for
WEIGHT OF EVIDENCE? recovery of possession of real property
against the defendant. The plaintiff presented
A: No. The admissibility of evidence should not be evidence that the property is titled in the name
equated with the weight of the evidence. The of X. The defendant objects on the ground of
admissibility of evidence depends on its relevance and immateriality. The plaintiff manifested that the
competence while the weight of evidence pertains to relevancy of this piece of evidence will be
its tendency to convince and persuade. A particular shown later on when the plaintiff presents
item of evidence may be admissible but its evidentiary evidence that X sold the land to B from which
weight depends on judicial evaluation with the the plaintiff derives his title of the subject real
guidelines provided by the rules on evidence (Tating property.
vs. Marcella)
c) Curative admissibility — allows a party to
Admissibility of evidence refers to the question of introduce otherwise inadmissible evidence to
whether or not the circumstance (or evidence) is to be answer the opposing party’s previous
considered at all. On the other hand, the probative introduction of inadmissible evidence. Thus, a
value of evidence refers to the question of whether or party who first introduces either irrelevant or
not it proves an issue (PNOC Shipping and Transport incompetent evidence into the trial cannot
Corporation v. CA) complain of the subsequent admission of
similar evidence from the adverse party
relating to the same subject matter.
Yokohama Tire v. Reyes [2020]
Example: In a collection suit filed by A against
The admissibility of evidence depends on its relevance
B, A introduced evidence that B borrowed

money from C, D and E, but did not pay. B accused’s denial (People vs. Solina)
objects on the ground that it is immaterial and
constitute character assassination. 2. Exclusionary rules
Nevertheless, the Court allowed. Thus, B can
introduce evidence that he already paid his The rules of exclusion are rules of exception to the
debt to C, D and E. general admissibility of all that is rational and
probative.
CLASSIFICATION OF EVIDENCE
A. Constitutional exclusionary rules
a) Direct Evidence → proves a fact without that
a) Unreasonable searches and seizures (Sec. 2,
need to make an inference from another fact.
Art. III, 1987 Constitution)
b) Circumstantial evidence or indirect b) Privacy of communication and
evidence → that evidence which indirectly correspondence (Sec. 3, Art. III, 1987
proves a fact in issue through an inference Constitution)
which the fact finder draws from the evidence
established. It applies when no witness saw c) Right to counsel, prohibition on torture, force,
the commission of a crime. violence, threat, intimidation or other means
which vitiate the free will; prohibition on secret
Conviction by circumstantial Evidence, detention places, solitary, incommunicado
Requisites: (Sec. 12, Ar III, 1987 Constitution)
1. There is more than one d) Right against self-incrimination (Sec. 17, Art.
circumstance. III, 1987 Constitution)
2. The facts from which the B. Statutory exclusionary rules

inference are derived are proven.
a) Lack of documentary stamp tax to documents
3. The combination of all the
required to have one makes such document
circumstances is such as to
inadmissible as evidence in court until the
produce conviction beyond
requisite stamp/s shall have been affixed
reasonable doubt.
thereto and cancelled [Sec. 201, NIRC];
Inferences cannot be based on
b) Any communication obtained by a person, not
other inferences. (Sec. 4, Rule
being authorized by all the parties to any
133)
private communication, by tapping any
wire/cable or using any other
c) Cumulative evidence → evidence of the
device/arrangement to secretly
same kind and character as that already given
overhear/intercept/record such information by
which tends to prove the same proposition.
using any device, shall not be admissible in
evidence in any hearing or investigation [Secs.
d) Corroborative evidence → supplementary to
1 and 4, R.A. 4200 (Wire-Tapping Act)]
that already given tending to strengthen or
confirm it. It is the additional evidence of a
c) Any confession, admission or statement
different character to the same point.
obtained as a result of torture shall be
inadmissible in evidence in any proceedings,
e) Positive evidence → witness affirms in the
except if the same is used as evidence
stand that a certain state of facts does exist or
against a person or persons accused of
that a certain event happened.
committing torture. [R.A. 9745, Anti-Torture
Act, Sec. 8]
f) Negative evidence → witness states that an
event did not occur or that the state of facts
Note: There must be a law that renders the evidence
alleged to exist does not actually exist.
inadmissible.
The defense of denial is viewed with disfavor for being
C. Exclusions under the Rules on Evidence
inherently weak. It cannot prevail over the positive and
credible testimony of prosecution witnesses (People vs.
a) Original document rule (previously best
Reyes)
evidence rule)
b) Hearsay evidence rule
Greater weight is given to positive identification of the
accused by the prosecution witnesses than the

c) Offer of compromise in civil cases hearing conducted.
D. Exclusions under Court issuances When it comes to mandatory judicial notice, there is
no need for a hearing because the thing is beyond
a) Rule on Electronic Evidence, e.g. compliance dispute.
with authentication requirements for electronic
evidence What is the hearing for?
b) Rule on Examination of a Child Witness, e.g.
sexual abuse shield rule To determine the propriety of the judicial notice
c) Judicial Affidavit Rule because there is no certainty of the thing yet. This
uncertainty is with respect to the fact which is sought
3. Judicial notice and judicial admissions (Rule to be the subject of judicial notice.
129)
In discretionary judicial notice, there are uncertainties
JUDICIAL NOTICE that the Court or the parties may want to tackle during
the hearing. The subject matter of the notice is still
capable of demonstration and it is known to a big
Based on the maxim “What is known need not be
group of individuals or a sizable community.
proved”, hence when the rule is invoked, the court
may dispense with the presentation of evidence on
judicially-cognizable facts. Rule 129, Section 1. Judicial notice, when mandatory.
– A court shall take judicial notice, without the
When the court takes judicial notice of a matter, the introduction of evidence, of the existence and
court accepts and recognizes the same without the territorial extent of states, their political history, forms
necessity of formal proof. Evidence shall be dispensed of government and symbols of nationality, the law of
with because the matter is so well known and is of nations, the admiralty and maritime courts of the
common knowledge not to be disputable. world and their seals, the political constitution and
history of the Philippines, official acts of the
What are the requisites of judicial notice? legislative, executive and judicial departments of the
National Government of the Philippines, the laws of
1) the matter must be one of common and nature, the measure of time, and the geographical
general knowledge; divisions.
2) it must be well and authoritatively settled and Section 2. Judicial notice, when discretionary. – A
not doubtful or uncertain; and court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable
3) it must be known to be within the limits of the demonstration, or ought to be known to judges
jurisdiction of the court. because of their judicial functions.
What do we mean by general knowledge and MATTERS SUBJECT TO MANDATORY JUDICIAL

notoriety? NOTICE:
It means that it is something that is beyond dispute. 1. Existence and territorial extent of states
Not questionable anymore. It is known to almost 2. Political History, forms of government and
everyone. It is no longer asked to be the subject of symbols of nationality of states
demonstration. (Laguilles) 3. Law of nations
4. Admiralty and marine courts of the world and
Rule 129, Section 3. Judicial notice, when hearing their seals
necessary. – During the pre-trial and the trial, the 5. Political Constitution and history of the
court, motu proprio or upon motion, shall hear the Philippines
parties on the propriety of taking judicial notice of any 6. Official acts of the legislative, executive and
matter. judicial departments of the National
Government of the Philippines
Before judgment or on appeal, the court, motu proprio 7. Laws of nature
or upon motion, may take judicial notice of any matter 8. Measure of time
and shall hear the parties thereon if such matter is 9. Geographical Divisions
decisive of a material issue in the case.
WHAT MAY BE SUBJECT TO DISCRETIONARY
In discretionary judicial notice, the Court is not JUDICIAL NOTICE
compelled to take judicial notice. There must be a
Judicial notice is limited to facts evidenced by public

records and facts of general notoriety. individual knowledge of a fact, not generally or
professionally known, the basis of his action.
A court may take judicial notice of matters which are:
Remember: Judicial notice is not judicial
1) of public knowledge, or knowledge. The mere personal knowledge of the
2) are capable of unquestionable demonstration, judge is not the judicial knowledge of the court, and
or he is not authorized to make his individual knowledge
3) ought to be known to judges because of their of a fact, not generally or professionally known, as the
judicial functions. (Sec. 2, Rule 129) basis of his action.
Landbank vs. Honeycomb (2012) DOCTRINE OF PROCESSUAL PRESUMPTION
The classification of the land is obviously essential to

It is well settled that our courts cannot take judicial
the valuation of the subject property, which is the very
notice of foreign laws. Like any other facts, they must
issue in the present case. The parties should thus
be alleged and proved.
have been given the opportunity to present evidence
on the nature of the property before the lower court
In the absence of proof, the foreign law will be
took judicial notice of the commercial nature of a
presumed to be the same as the laws of the
portion of the subject landholdings.
jurisdiction hearing the case.
The personal knowledge of the judge is not judicial
knowledge. Vda De Catalan v. Catalan-Lee (2012)
Q: Would it have been better if the Court set the It is well-settled in our jurisdiction that our courts
matter for hearing under the principle of cannot take judicial notice of foreign laws. Like any
discretionary judicial notice? other facts, they must be alleged and proved.
Australian marital laws are not among those matters
No. The classification of land cannot be a matter of that judges are supposed to know by reason of their
discretionary judicial notice because the courts cannot judicial function. The power of judicial notice must be
take judicial notice of matters that are still in dispute. exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Landbank vs. Wycoco (2004)
JUDICIAL NOTICE OF MUNICIPAL ORDINANCES
Inasmuch as the valuation of the property of Wycoco
is the very issue in the case at bar, the trial court
■ The MTC should take judicial notice of
should have allowed the parties to present evidence
municipal ordinances in force in the
thereon instead of practically assuming a valuation
municipality in which they sit.
without basis. While market value may be one of the
bases of determining just compensation, the same ■ The RTC should also take judicial notice of
cannot be arbitrarily arrived at without considering the the municipal ordinances in force in the
factors to be appreciated in arriving at the fair market municipalities within their jurisdiction but only
value of the property e.g., the cost of acquisition, the when so required by law. For example, the
current value of like properties, its size, shape, charter of the City of Manila requires all courts
location, as well as the tax declarations thereon. Since sitting therein to take judicial notice of all
these factors were not considered, a remand of the ordinances passed by the city council. (City of
case for determination of just compensation is Manila v. Garcia)
necessary. The power to take judicial notice is to be
exercised by courts with caution especially where the ■ The RTC must take judicial notice also of
case involves a vast tract of land. Care must be taken municipal ordinances in cases on appeal to it
that the requisite notoriety exists; and every from the inferior court in which the latter took
reasonable doubt on the subject should be promptly judicial notice of. (U.S. v. Hernandez)
resolved in the negative. To say that a court will take
judicial notice of a fact is merely another way of saying ■ The CA may take judicial notice of municipal
that the usual form of evidence will be dispensed with ordinances because nothing in the rules
if knowledge of the fact can be otherwise acquired. prohibits it from taking cognizance of an
This is because the court assumes that the matter is ordinance which is capable of unquestionable
so notorious that it will not be disputed. But judicial demonstration.
notice is not judicial knowledge. The mere personal
knowledge of the judge is not the judicial knowledge Social Justice Society vs. Atienza [2008]
of the court, and he is not authorized to make his

While courts are required to take judicial notice of the 1. In the pleadings
laws enacted by Congress, the rule with respect to 2. During trial, either verbal or written manifestation
local ordinances is different. Ordinances are not 3. During pre-trial
included in the enumeration of matters covered by 4. In other stages of the judicial proceedings
mandatory judicial notice under Section 1, Rule 129 of
the Rules of Court. CIR v. Petron (2012)
Even where there is a statute that requires a court to The CIR’s claim that Petron have participated in the
take judicial notice of municipal ordinances, a court is fraudulent issuance and transfer of the TCCs is
not required to take judicial notice of ordinances that negated by the Joint Stipulation it entered into with
are not before it and to which it does not have access. Petron in the proceedings before the CTA which states
The party asking the court to take judicial notice is that Petron did not participate in the procurement and
obligated to supply the court with the full text of the issuance of the TCCs, which TCCs were transferred to
rules the party desires it to have notice of. Counsel Petron and later utilized by Petron in payment of its
should take the initiative in requesting that a trial court excise taxes.
take judicial notice of an ordinance even where a
statute requires courts to take judicial notice of local This stipulation of fact by the CIR amounts to an
ordinances. admission and, having been made by the parties in a
stipulation of facts at pretrial, is treated as a judicial
A court will take judicial notice of its own acts and admission.
records in the same case. (Republic vs. CA)
Under Section 4, Rule 129 of the Rules of Court, a
General Rule: The courts are not authorized to take judicial admission requires no proof. The Court cannot
judicial notice of the contents of the records of other lightly set it aside, especially when the opposing party
cases even when such cases have been tried and are relies upon it and accordingly dispenses with further
pending in the same court. (LBP vs. Yatco Agricultural proof of the fact already admitted. The exception
Enterprises) provided in Rule 129, Section 4 is that an admission
may be contradicted only by a showing that it was
Exceptions: made through a palpable mistake, or that no such
admission was made. In this case, however, an
1. When in the absence of any objection and exception to the rule does not exist.
with the knowledge of the opposing party, the
contents of said other case are clearly referred Petron has not been shown or proven to have
to by title and number in a pending action and participated in the alleged fraudulent acts involved in
adopted and read into the records of the other the transfer and utilization of the subject TCCs. Petron
case; had the right to rely on the joint stipulation that
absolved it from any participation in the alleged fraud
2. When they are requested to form part of the pertaining to the issuance and procurement of the
record of the other case (Tabuena vs. CA) subject TCCs. The joint stipulation made by the
parties consequently obviated the opportunity of the
CIR to present evidence on this matter, as no proof is
JUDICIAL ADMISSION
required for an admission made by a party in the
course of the proceedings. Thus, the CIR cannot be
An admission, verbal or written, made by a party in the allowed to change its stand and renege on that
course of the proceedings in the same case, does not admission.
require proof. The admission may be contradicted only
by showing that it was made through a palpable
■ An admission made by the accused in the pre-trial
mistake or that no such admission was made. (Sec. 4,
of a criminal case is not necessarily admissible
Rule 129)
against him. To be admissible, the conditions set
forth by Rule 118, Sec. 2 must be complied with.
Requisites of Judicial Admission
(reduced in writing, signed by the accused and
counsel)
1) It must be made by a party to a case
2) It must be made in the course of the
■ Section 8, Rule 10, provides that when a pleading
proceedings in the same case
is amended, the amended pleading supersedes
3) It does not require a particular form.
the pleading that it amends and the admission in
the superseded pleading may be offered in
Manzanilla v. Waterfields Industries [2014] evidence against the pleader. But the admission
in a superseded pleading will be treated as
Judicial admission are admission in the following:

extra-judicial admission (Torres vs. CA) shall be deemed admitted unless the adverse party,
under oath, specifically denies them, and sets forth
Torres v. CA (1984) what he claims to be the facts; but the requirement of
an oath does not apply when the adverse party does
The Amended Complaint takes the place of the not appear to be a party to the instrument or when
original. The latter is regarded as abandoned and compliance with an order for an inspection of the
ceases to perform any further function as a pleading. original instrument is refused. (Sec. 8, Rule 8)
The original complaint no longer forms part of the
record. Allegations, not specifically denied are admissions
If petitioner had desired to utilize the original Material averment in the complaint, other than those
complaint she should have offered it in evidence. as to the amount of unliquidated damages, shall be
Having been amended, the original complaint lost its deemed admitted when not specifically denied.
character as a judicial admission, which would have Allegations of usury in a complaint to recover usurious
required no proof, and became merely an extrajudicial interest are deemed admitted if not denied under oath.
admission, the admissibility of which, as evidence, (Sec. 11, Rule 8)
required its formal offer. Contrary to petitioner's
submission, therefore there can be no estoppel by C. Object (Real) Evidence (Rule 130, A)
extrajudicial admission made in the original complaint,
for failure to offer it in evidence. Rule 130, Section 1. Object as evidence. – Objects as
evidence are those addressed to the senses of the court.
■ Admissions in pleadings that have been dismissed When an object is relevant to the fact in issue, it may
are merely extrajudicial admissions. be exhibited to, examined or viewed by the court.
■ Admission of a proposed state witness — If the Senses a court may have:

motion to discharge an accused as a state
witness is denied, his sworn statement, submitted 1. Sight
to support the motion, shall be inadmissible in 2. Hearing
evidence (Sec. 17, Rule 119) 3. Touch
4. Smell
■ Admissions by counsel are generally conclusive 5. Taste
upon a client. However, where reckless or gross
negligence of counsel deprives the client due Requisites for the admissibility of object evidence:
process of law, or when its application will result
in outright deprivation of the client’s liberty or 1) Evidence must be relevant;
property, or when the interest of justice so require, 2) Evidence must be competent;
relief is accorded to the client who suffered by 3) Evidence must be authenticated by a witness;
reason of the lawyer’s gross or palpable mistake 4) Object evidence must be formally offered in
or negligence. evidence.
EFFECT OF JUDICIAL ADMISSION Right against self-incrimination vis-à-vis object

evidence
Judicial admissions are legally binding on the party
making the admission. It is an established principle General Rule: The right against self-incrimination
that judicial admission cannot be contradicted by the cannot be invoked against object evidence because
admitter who is the party himself and binds the person the kernel of the right against self-incrimination is the
who makes the same, absent any showing that this right against testimonial compulsion.
was made through a palpable mistake, no amount of
rationalization can offset it (PCIC vs. Central Colleges Q: Can you decline that your body be examined?
of the Phil)
➔ A: NO, because you cannot invoke your right
How judicial admissions may be contradicted? against self incrimination as such is not a
testimonial compulsion. It does not apply to a
1. By showing that the admission was made case where the evidence sought to be
through palpable mistake excluded is not an incriminating statement but
2. The imputed admission was not, in fact, made an object evidence.
Implied admissions of actionable documents Q: Can the prosecution require the accused to give
a specimen of his handwriting?
The genuineness and due execution of the instrument

➔ A: NO. Writing is something more than moving or videos.

the body, or the hand, or the fingers; writing is
not a purely mechanical act because it Requisites for the admissibility of the documentary
requires the application of intelligence and evidence:
attention. (Beltran v. Samson)
1. The document must be relevant;
Categories of Object Evidence 2. The evidence must be authenticated;
3. The document must be authenticated by a
1) Objects that have readily identifiable marks competent witness; and
(unique object) 4. The document must be formally offered in
evidence.
■ Example: plate number, chassis
number
Q: May documentary evidence be likewise treated
■ Unique objects do not need to comply as object evidence?
with the chain.
➔ A: YES. A private document may be offered
2) Object that are made identifiable (object made and admitted in evidence both as
unique) documentary evidence and as object
evidence depending on the purpose for which
■ Example: kitchen knife recovered in a the document is offered. If offered to prove its
crime scene; how do you make such existence, condition or for any purpose other
object unique: if witness is able to than the contents of a document, the same is
identify the knife that is marked. considered as an object evidence. When the
private document is offered as proof of its
3) Object with no identifying mark contents, the same is considered as
documentary evidence. (Principle of multiple
■ Example: shabu, vinegar admissibility)
■ If the object evidence has no 2. Best Evidence rule [now ORIGINAL DOCUMENT
identifying mark, we have to comply RULE]
with the chain of custody.
Rule 130, Section 3. Original document must be
Links in the Chain of Custody produced; exceptions. – When the subject of inquiry is
the contents of a document, writing, recording,
1. First, the seizure and marking of the
photograph or other record, no evidence is admissible
confiscated drugs recovered from the
accused. other than the original document itself xxx
2. Second, the turnover of the illegal drug seized Judge Gito: The original document rule is offering the
by the apprehending officer to the original of a document. Always offer the original
investigating officer. document; if not offered as a documentary evidence,
do not apply the original document rule.
3. Third, the turnover by the investigating officer
of the illegal drug to the forensic chemist for
Example: An epitaph that says “here lies a lawyer
laboratory examination.
who, even in death, still lies.” If the purpose is to offer
the contents of the epitaph, it is a documentary
4. Fourth, the turnover and submission of the
evidence. If it is offered as a proof of death, it is an
marked illegal drug by the forensic chemist to
object evidence.
the court (People vs. Kamad)
D. Documentary Evidence (Rule 130, B) When do you apply the original document rule?
1. Definition
If the matter inquired into is the contents of the
document, then original document rule applies.
Rule 130, Section 2. Documentary evidence. –
Documents as evidence consist of writings, recordings, Note: Where the issue is only as to whether such
photographs or any material containing letters, words, document was actually executed, or exists, or on the
sounds, numbers, figures, symbols, or their equivalent, circumstances relevant to or surrounding its
or other modes of written expression offered as proof execution, the best evidence rule does not apply and
of their contents. Photographs include still pictures, testimonial evidence is admissible.
drawings, stored images, x-ray films, motion pictures

When a document is presented to prove its existence produced; exceptions. –

or condition, it is offered not as documentary, but as
real evidence. Parol evidence of the fact of execution xxx
of the documents is allowed (Hernaez, et al. vs.
McGrath) (a) When the original is lost or destroyed, or cannot be
produced in court, without bad faith on the part of the
Q: At the trial for violation of RA 9165, the offeror;
prosecution presented as evidence of selling drugs,
the xerox copy of the marked money used in buying (b) When the original is in the custody or under the
shabu. The defense objected to the presentation of control of the party against whom the evidence is
the xerox copy of the marked money for violation of offered, and the latter fails to produce it after
the original document rule. If you were the judge, reasonable notice, or the original cannot be obtained
how would you rule on the objection? by local judicial processes or procedures;
➔ A: I will overrule the objection. Original (c) When the original consists of numerous accounts
document rule applies when a document is or other documents which cannot be examined in
offered to prove the contents thereof. Here the court without great loss of time and the fact sought to
marked money is not offered as documentary be established from them is only the general result of
evidence but as object evidence. It was offered to the whole;
prove that selling of drugs occurred. Thus, the
original document rule does not apply. (d) When the original is a public record in the custody
of a public officer or is recorded in a public office; and
WHAT IS CONSIDERED TO BE THE ORIGINAL
DOCUMENT? (e) When the original is not closely-related to a
controlling issue.
Rule 130, Section 4. Original of document. –
(a) An “original” of a document is the document itself 3. Secondary evidence

or any counterpart intended to have the same effect by
a person executing or issuing it. An “original” of a Rule 130, Section 5. When original document is
photograph includes the negative or any print unavailable. – When the original document has been
therefrom. If data is stored in a computer or similar lost or destroyed, or cannot be produced in court, the
device, any printout or other output readable by sight offeror, upon proof of its execution or existence and the
or other means, shown to reflect the data accurately, is cause of its unavailability without bad faith on his or
an “original.” her part, may prove its contents by a copy, or by recital
of its contents in some authentic document, or by the
(b) A “duplicate” is a counterpart produced by the testimony of witnesses in the order stated.
same impression as the original, or from the same
matrix, or by means of photography, including
Requisites for the introduction of secondary
enlargements and miniatures, or by mechanical or
evidence in case of loss, destruction or
electronic re-recording, or by chemical reproduction,
unavailability of the original:
or by other equivalent techniques which accurately
reproduce the original.
1. The offeror must prove the execution and
existence of the original document;
(c) A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to 2. The offeror must show the cause of its
the authenticity of the original, or (2) in the unavailability; and
circumstances, it is unjust or inequitable to admit the
duplicate in lieu of the original. 3. The offeror must show that the unavailability
was not due to his bad faith.
Under the old rule, a xerox copy is not original; in the
new rule, a xerox copy may be considered a What is secondary evidence when the original
duplicate. Evidentiary value of a duplicate is as to the document is unavailable?
same extent as that of an original; a duplicate may be
treated as an original. 1. By a copy;
2. By recital of its contents in some authentic
EXCEPTIONS TO ORIGINAL DOCUMENT RULE document;
3. By the testimony of witnesses in the order
Rule 130, Section 3. Original document must be stated.

Rule 130, Section 6. When original document is in calculation.

adverse party’s custody or control. – If the document
is in the custody or under the control of the adverse Rule 130, Section 8. Evidence admissible when
party, he or she must have reasonable notice to original document is a public record. – When the
produce it. If after such notice and after satisfactory original of a document is in the custody of a public
proof of its existence, he or she fails to produce the officer or is recorded in a public office, its contents
document, secondary evidence may be presented as in may be proved by a certified copy issued by the public
the case of its loss. officer in custody thereof.
How to present secondary evidence when the How do you present secondary when the original
original is in adverse party custody or control? is in the custody of a public officer or is recorded
in a public office?
1) The offeror must prove its existence;
When the original of a document is in the custody of a
2) Document is under the custody or control of public officer or is recorded in a public office, its
the adverse party; contents may be proved by a certified copy issued by
the public officer in custody thereof.
3) Proponent has given the other party
reasonable opportunity to produce the
document; Dimaguila vs. Spouses Monteiro (2014)
4) The other party failed to produce the original Section 7 of the same Rule [130] provides that when
document despite the reasonable notice. the original of a document is in the custody of a public
officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the
Rule 130, Section 7. Summaries. – When the contents public officer in custody thereof. Section 24 of Rule
of documents, records, photographs, or numerous 132 provides that the record of public documents may
accounts are voluminous and cannot be examined in be evidenced by a copy attested by the officer having
court without great loss of time, and the fact sought to the legal custody or the record.
be established is only the general result of the whole,
the contents of such evidence may be presented in the
form of a chart, summary, or calculation.
4. Parol Evidence rule
The originals shall be available for examination or
copying, or both, by the adverse party at a reasonable Rule 130, Section 10. Evidence of written
time and place. The court may order that they be agreements. – When the terms of an agreement have
produced in court. (new) been reduced to writing, it is considered as containing
all the terms agreed upon and there can be, as between
Example: The court is only interested in the total sales the parties and their successors in interest, no evidence
of a corporation for two years. Instead of presenting of such terms other than the contents of the written
numerous receipts, you may present a summary agreement.
instead.
xxx
How do you introduce evidence, the documents of
which consist of numerous accounts and are The term “agreement” includes wills.
voluminous?
When is parol evidence applicable?
1) The offeror must show that the documents are
voluminous; 1. There must be an agreement; and
2. The parties reduced their agreement to
2) That they cannot be examined in court without writing.
great loss of time;
If there is an agreement, then the parties are
3) The fact sought to be established from them prohibited to change, modify, explain, or add to the
is only the general result. terms of the written agreement. Simply put, you
cannot present evidence outside the document; your
Q: What is the secondary evidence when the evidence must be confined therein.
original documents are voluminous?
If the agreement is not in writing, you do not apply the
➔ A: It will be in the form of a chart, summary, or parol evidence rule.

Parol evidence rule forbids any addition to, or the written agreement
contradiction of, the terms of a written agreement by
testimony or other evidence purporting to show that Intrinsic ambiguity means that the ambiguity is
different terms were agreed upon by the parties. latent in the agreement. The mistake can be
seen in the agreement itself. In its form, the
Rationale of the rule: We cannot rely on our agreement is valid, but intrinsically, it is
memories which get faulty as years pass by. ambiguous.
(Laguilles)
Illustration: Lito executed a will wherein he
Should the “writing” that embodies the agreement bequeathed the amount of 1 million pesos to
of the parties be in a particular form? Carla Rubio. Lito died. When his will was
probated and later on about to be executed, it
Inciong v. CA (1996) turned out that there were three (3) Carla
Rubios’ who are all friends of Lito. Assuming
Thus, for the parol evidence rule to apply, a written that this fact was put as an issue, may parol
contract need not be in any particular form, or be evidence be allowed to clarify the
signed by both parties. As a general rule, bills, notes ambiguity?
and other instruments of a similar nature are not
subject to be varied or contradicted by parol or A: Yes. Because there is intrinsic ambiguity in
extrinsic evidence. the will. Under the rules, will is included in the
word “agreement”.
Only the parties and successors-in-interest are bound
(b) The failure of the written agreement to express the
by the parol evidence rule. A total stranger to the
true intent and agreement of the parties thereto
writing is not bound by its terms and is allowed to
introduce extrinsic or parol evidence against the
Illustration: Lito sold the land to Carla for the
efficacy of the writing. (Lechugas v. CA)
amount of 200,000. The value of the land is
20M pesos. But, what the parties actually
The parol evidence rule can be waived by failure to
agreed was Lito would borrow from Carla the
invoke the benefits of the rule. This waiver may be
amount of 200,000 and use the land as
made by failure to object to the introduction of
security. In an action to recover the parcel of
evidence aliunde. Inadmissible evidence may be
land, may Lito introduce evidence of the
rendered admissible by failure to object. (Santiago v.
true agreement of the parties?
CA)
A: YES. Because of the failure of the written
Instances where a party may modify, explain, or agreement to express the true intent of the
add to the terms of written agreement parties thereto.
Rule 130, Section 10. Evidence of written (c) The validity of the written agreement;
agreements. —
Illustration: Lito sold the land to Carla for 1M.
xxx They executed a deed of sale. They both
signed the same. However, Carla has no cash
However, a party may present evidence to modify, of 1M. So she told Lito that she would just go
explain or add to the terms of the written agreement if to the bank to withdraw. Carla left Lito
he or she puts in issue in a verified pleading: together with the DOS and the title to the land.
Unknown to Lito, Carla went to the RD to have
(a) An intrinsic ambiguity, mistake or imperfection in the sale registered. In an action for
the written agreement; cancellation of sale, can Lito introduce
evidence to prove that there is no
(b) The failure of the written agreement to express the consideration?
true intent and agreement of the parties thereto;
A: YES. Because the issue is the validity of the
(c) The validity of the written agreement; or instrument.
(d) The existence of other terms agreed to by the (d) The existence of other terms agreed to by the
parties or their successors in interest after the parties or their successors in interest after the
execution of the written agreement. execution of the written agreement.
(a) An intrinsic ambiguity, mistake or imperfection in Illustration: Lito borrowed money from Carla
evidenced by PN which is due and

demandable on Jan. 4, 2017. Come Jan. 4, otherwise peculiar signification, and were so used and
2017, Lito did not pay. Carla sued Lito. Lito understood in the particular instance, in which case the
argued that Carla extended the maturity date agreement must be construed accordingly.
of the loan to Jan. 4, 2019. So the loan has
not yet matured. Lito offered evidence to Section 16. Written words control printed. – When an
prove the extension. Carla objected on the instrument consists partly of written words and partly of
ground of parol evidence rule. a printed form, and the two [(2)] are inconsistent, the
former controls the latter.
A: Lito may introduce terms agreed upon by
Section 17. Experts and interpreters to be used in
the parties or successor in interest after the
explaining certain writings. – When the characters in
execution of the written agreement. which an instrument is written are difficult to be
deciphered, or the language is not understood by the
Take note: A party must put them as issue in a court, the evidence of persons skilled in deciphering the
verified pleading. characters, or who understand the language, is admissible
to declare the characters or the meaning of the language.
Seaoil v. Autocorp Group (2008)
Section 18. Of two constructions, which preferred. –
Although parol evidence is admissible to explain the When the terms of an agreement have been intended in a
meaning of a contract, it cannot serve the purpose of diff erent sense by the diff erent parties to it, that sense is
incorporating into the contract additional to prevail against either party in which he or she
supposed the other understood it, and when diff erent
contemporaneous conditions which are not mentioned
constructions of a provision are otherwise equally proper,
at all in the writing unless there has been fraud or
that is to be taken which is the most favorable to the party
mistake. Evidence of a prior or contemporaneous in whose favor the provision was made.
verbal agreement is generally not admissible to vary,
contradict or defeat the operation of a valid contract. Section 19. Construction in favor of natural right. –
When an instrument is equally susceptible of two [(2)]
interpretations, one [(1)] in favor of natural right and the
5. Interpretation of documents other against it, the former is to be adopted.
Rule 130 Section 20. Interpretation according to usage. – An

instrument may be construed according to usage, in order
to determine its true character.
Section 11. Interpretation of a writing according to its
legal meaning. – The language of a writing is to be
interpreted according to the legal meaning it bears in the
place of its execution, unless the parties intended E. Testimonial Evidence (Rule 130, C)
otherwise. 1. Qualification of witnesses
Section 12. Instrument construed so as to give effect Rule 130, Section 21. Witnesses; their qualifications. –
to all provisions. – In the construction of an
All persons who can perceive, and perceiving, can
instrument[,] where there are several provisions or
make known their perception to others, may be
particulars, such a construction is, if possible, to be
adopted as will give effect to all.
witnesses.
Section 13. Interpretation according to intention; Religious or political belief, interest in the outcome of
general and particular provisions. – In the construction the case, or conviction of a crime, unless otherwise
of an instrument, the intention of the parties is to be provided by law, shall not be a ground for
pursued; and when a general and a particular provision disqualification.
are inconsistent, the latter is paramount to the former. So
a particular intent will control a general one that is The relationship of a witness does not ipso facto
inconsistent with it. render him a biased witness in criminal cases where
the quantum of evidence is proof beyond reasonable
Section 14. Interpretation according to circumstances. – doubt. There is no reason why the same principle
For the proper construction of an instrument, the
should not apply to a civil case where the quantum of
circumstances under which it was made, including the
evidence is only preponderance of evidence.
situation of the subject thereof and of the parties to it,
may be shown, so that the judge may be placed in the
(Northwest Airlines v. Chiong)
position of those whose language he or she is to interpret.
Rule on Examination of Child Witness
Section 15. Peculiar signification of terms. – The terms
of a writing are presumed to have been used in their Every child is presumed qualified to be a witness.
primary and general acceptation, but evidence is
admissible to show that they have a local, technical, or The court shall conduct a competency examination of

a child, motu proprio or on motion of a party, when it Consequently, W reported the incident she witnessed
finds that substantial doubt exists regarding the ability when they were still sweethearts.
of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the 1. May the prosecution present W as a witness in a
duty to tell the truth in court. murder case filed against H?
The court may allow leading questions in all stages of 2. Supposed W was called to testify after their
examination of a child if the same will further the marriage had been annulled, would your answer be
interests of justice. (Sec. 20, A.M. No. 004-07-SC) the same?
The court may order that the testimony of the child be ➔ A: 1. Over the objection of H, the prosecution
taken by live-link television if there is a substantial may not call W to testify against H. To call W to
likelihood that the child would suffer trauma from testify against H while their marriage is still
testifying in the presence of the accused, his counsel would violate the marital disqualification rule.
or the prosecutor as the case may be. The trauma
must be of a kind which would impair the 2. My answer would not be the same. Since the
completeness or truthfulness of the testimony of the marriage is not anymore existing, the marital
child. (Sec. 25[f], A.M. No. 004-07-SC) disqualification rule would not apply.
People v. Esugon (2015) Q: W filed a collection suit against the father of H.

The father of the H called H to testify against the W.
Under the Rule on Examination of a Child Witness W objected. Rule on the objection.
(A.M. No. 004-07-SC), every child is now presumed
qualified to be a witness. To rebut this presumption, ➔ A: The husband is barred from testifying against
the burden of proof lies on the party challenging the the wife if the latter objects. It is not a case by
child’s competency. Only when substantial doubt one spouse against the other but between a
exists regarding the ability of the child to perceive, spouse and the parent of the other.
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in Ordono vs. Daquigan (1975)
court will the court, motu proprio or on motion of a
party, conduct a competency examination of a child. When an offense directly attacks or directly and vitally
impairs the conjugal relation, it comes within the
exception to the statute that one shall not be a
MARITAL DISQUALIFICATION RULE
witness against the other except in a criminal
prosecution for a crime committed by one against the
Rule 130, Section 23. Disqualification by reason of other. Using this criterion, it can be concluded that in
marriage. – During their marriage, the husband or the the law of evidence the rape perpetrated by the father
wife cannot testify against the other without the against his daughter is a crime committed by him
consent of the affected spouse, except in a civil case by against his wife.
one against the other, or in a criminal case for a crime
committed by one against the other or the latter’s People vs. Quitado (1998)
direct descendants or ascendants.
As correctly observed by the court a quo, the
In order that the husband or wife may claim the disqualification is between husband and wife, the law
privilege, it is essential that they be validly married. If is not precluding the wife from testifying when it
they are not, there is no privilege. Thus, the rule does involves other parties or accused. Hence, Gina
not cover illicit cohabitation. Moreover, the prohibition Quidato could testify in the murder case against
can no longer be invoked after the marriage is Reynaldo and Eddie, which was jointly tried with
dissolved. Bernardo Quidato Jr. This testimony cannot, however,
be used against Bernardo Quidato Jr directly or
Objections to the competency of a husband and wife through the guise of taking judicial notice of the
to testify in a criminal prosecution against the other proceedings in the murder case without violating the
may be waived. The objection to the competency of marital disqualification rule. What cannot be done
the spouse must be made when he or she is first directly cannot be done indirectly.
offered as a witness, otherwise, it will be deemed
waived. Alvarez vs. Ramirez (2005)
Q: Before the marriage of H and W, W witnessed H Esperanza may testify over the objection of her
killing Y. W did not report the incident to the police. husband. The disqualification of a witness by reason
Later, H and W got married. They had fallen out. of marriage has its exceptions as where the marital

relations are so strained that there is no more harmony information was not received during marriage.
to be preserved. The acts of the petitioner stamp out
all major aspects of marital life. On the other hand, the Supposing the information was received by W from H
State has an interest in punishing the guilty and during their marriage, but W was called to testify
exonerating the innocent, and must have the right to after their marriage was annulled. Will W be allowed
offer the testimony of Esperanza over the objection of to testify over the objection of H?
her husband.
➔ A: No. W should not be allowed to testify against
H, if the latter objects. The wife who received the
MARITAL PRIVILEGED COMMUNICATION RULE
information in confidence may not be called to
testify thereon even after marriage.
Rule 130, Section 24. Disqualification by reason of
privileged communication[s] — The following ATTORNEY-CLIENT PRIVILEGE
persons cannot testify as to matters learned in
confidence in the following cases:
(b) An attorney or person reasonably believed by the
(a) The husband or the wife, during or after the client to be licensed to engage in the practice of law
marriage, cannot be examined without the consent of cannot, without the consent of the client, be examined
the other as to any communication received in as to any communication made by the client to him or
confidence by one from the other during the marriage her, or his or her advice given thereon in the course of,
except in a civil case by one against the other, or in a or with a view to, professional employment, nor can
criminal case for a crime committed by one against the an attorney’s secretary, stenographer, or clerk, or other
other or the latter’s direct descendants or ascendants. persons assisting the attorney be examined without
the consent of the client and his or her employer,
concerning any fact the knowledge of which has been
Elements:
acquired in such capacity, except in the following
cases:
1) There must be a valid marriage between the
husband and wife;
(i) Furtherance of crime or fraud. If the services or
2) There is a communication received in
advice of the lawyer were sought or obtained to enable
confidence by one from the other; and
or aid anyone to commit or plan to commit what the
3) The confidential communication was received
client knew or reasonably should have known to be a
during the marriage.
crime or fraud;
What would prohibit the spouse to testify against the
(ii) Claimants through same deceased client. As to a
other spouse is not the existence of marriage but the
communication relevant to an issue between parties
communication that one derived from the other, or the
who claim through the same deceased client,
information acquired during their marriage.
regardless of whether the claims are by testate or
intestate or by inter vivos transaction;
Note: confidential information received from a third
person is not covered by the privilege.
(iii) Breach of duty by lawyer or client. As to a
communication relevant to an issue of breach of duty
For the information to be confidential, it must be made
by the lawyer to his or her client, or by the client to his
during and by the reason of the marital relations and is
or her lawyer;
intended not to be shared with others.
(iv) Document attested by the lawyer. As to a
Communications made in the presence of a third
communication relevant to an issue concerning an
person are not confidential unless the third person
attested document to which the lawyer is an attesting
may be considered as agent of the spouses.
witness; or
Q: H and W were sweethearts. H confided something
(v) Joint clients. As to a communication relevant to
to W and told the latter not to tell the same to
a matter of common interest between two (2) or more
anyone. Later, they got married. After several years,
clients if the communication was made by any of them
their Marriage got annulled. It turned out that what
to a lawyer retained or consulted in common, when
was told by H to W was that he was the one who
offered in an action between any of the clients, unless
bombed the hotel. In the prosecution for terrorism
they have expressly agreed otherwise.
against H, the prosecution called W to the witness
stand. H objected on the ground of “marital privilege
communication. Rule on the objection. Who are covered by the privilege?
➔ A: Objection should be denied. The confidential 1. An attorney

2. Persons reasonably believed by the client to

be licensed to engage in the practice of law mean there is already an existing

3. Attorney’s secretary, stenographer, or clerk attorney-client relationship; there is
4. Other persons assisting the attorney none.
Matters covered by the privilege: 5) Joint clients.
a. Any communication made by the client ■ Example: Lito and Carlito secured
b. Advice given thereon in the course of, or with your services for a particular case.
a view to, professional employment Later on, these two clients had a
c. Any fact the knowledge of which has been misunderstanding. They then filed a
acquired in such capacity. case against each other. Can you
testify? Yes, unless both Lito and
Q: Is it required for the application of the privilege Carlito prohibited you to testify in
that there is already a lawyer-client relationship? favor of or against anyone of them.
➔ A: No. The rule says any advice or DOCTOR-PATIENT PRIVILEGE

communication given in the course of (there is
already a lawyer-client relationship), or with a (c) A physician, psychotherapist or person reasonably
view to (there is still an intention to secure the believed by the patient to be authorized to practice
services of a lawyer), that is already covered medicine or psychotherapy cannot in a civil case,
by the privilege. without the consent of the patient, be examined as to
any confidential communication made for the purpose
Q: Noli is a lawyer. His kumpare told him “Attorney of diagnosis or treatment of the patient’s physical,
inuman tayo.” Edi nakipag-inuman naman si Noli. mental or emotional condition, including alcohol or
While drinking, his kumpare said “Puta pare, drug addiction, between the patient and his or her
nakabuntis ako pare. Anong gagawin ko pare? Baka physician or psychotherapist. This privilege also
malaman ng asawa ko pare.” You gave him advice. applies to persons, including members of the patient’s
Now, you are also friends with the kumare. She family, who have participated in the diagnosis or
discovered kumpare’s secret. Kumare now took you treatment of the patient under the direction of the
as her witness because kumpare admitted the physician or psychotherapist.
pregnancy when both of you were drinking. While
you were being presented by the kumare, kumpare A “psychotherapist” is:
objected on the ground of lawyer-client relationship.
Is that covered by the privilege? (a) A person licensed to practice medicine engaged in
the diagnosis or treatment of a mental or emotional
➔ A: NO. There is no existing lawyer-client condition, or
relationship and the information you acquired is (b) A person licensed as a psychologist by the
not with a view to you being secured by government while similarly engaged.
kumpare to be his lawyer. So, that is not covered
by the privilege.
Who are covered by the privilege?
What are exceptions to this privilege?
1. Physician
1) Furtherance of crime or fraud. 2. Psychotherapist
3. Persons reasonably believed by the patient to
2) Claimants through same deceased client. be authorized to practice medicine or
psychotherapy
■ Example: The lawyer’s client is the 4. Persons, including members of the patient’s
one who died, the one who lent family, who have participated in the diagnosis
money to the deceased, and the or treatment of the patient under the direction
claimants to the deceased’s estate. In of the physician or psychotherapist
this situation, the lawyer can testify.
The purpose of this rule is to speedily What matters are considered privilege?
settle the estate of the deceased.
Any confidential communication made for the purpose
3) Breach of duty by lawyer or client. of diagnosis or treatment of the patient’s physical,
mental or emotional condition, including alcohol or
4) Document attested by the lawyer. drug addiction, between the patient and his or her
physician or psychotherapist.
■ If we become lawyers, we may have
to notarize documents. The fact that
Q: In a Guardianship proceedings, the oppositor filed
we notarize documents does not

a motion to have the subject of the petition be Any communication or confession made to or any
examined by a psychiatrist to determine his mental advice given by him or her.
capacity. The motion was granted by the Court. The
subject of the petition was examined. After the Under what circumstances should the
examination, the party examined requested for the communication or advice be given to be
result of the examination. The requesting party also considered privilege?
requested from the party examined, the result of the
report. During the proceedings, the requesting party It must be made in his or her professional character,
called to the witness stand the psychiatrist to testify and in the course of the discipline enjoined by the
on the examination conducted. The party examined church to which the minister or priest belongs.
objected on the ground of doctor-patient privilege.
Rule on the objection. Example: When you confided to the priest while
playing basketball or while drinking coffee, that is not
➔ A: Objection overruled. By requesting and covered by the privilege, because the priest or the
obtaining a report of the examination so ordered minister must be performing his or professional
or by taking the deposition of the examiner, the function, otherwise that is not covered by the
party examined waives any privilege he may privilege.
have in that action or any other involving the
same controversy, regarding the testimony of PUBLIC OFFICER
every other person who has examined or may
thereafter examine him in respect of the same
mental or physical examination. (e) A public officer cannot be examined during or after
his or her tenure as to communications made to him
In an action in which the mental or physical condition or her in official confidence, when the court finds that
of a party is in controversy, the court in which the the public interest would suffer by the disclosure.
action is pending may in its discretion order him to
submit to a physical or mental examination by a The communication shall remain privileged, even in
physician (Section 1, Rule 28) the hands of a third person who may have obtained
the information, provided that the original parties to
Q: In the prosecution for adultery filed by the the communication took reasonable precaution to
Husband against the wife, the prosecution called to protect its confidentiality.
the witness stand the OBGyne who examined the
Wife to testify that she was the one who attended the Who and what is covered by the privilege?
giving birth of the Wife. The husband is impossible to
sire a child with the Wife as he is impotent. The wife A public officer who received communication in official
objected on the ground of doctor-patient privilege. confidence. The communication received in official
Rule on the objection. confidence is privileged.
➔ A: Overruled. It is only applicable to civil cases. When you receive secrets from the State, even if you
The doctor-patient privilege is only applicable to severed your relationship with the government, that is
civil cases, but not in criminal cases. covered by this privilege.
PRIEST-PENITENT PRIVILEGE The communication shall remain privileged, even in

the hands of a third person who may have obtained
the information, provided that the original parties to
(d) A minister, priest or person reasonably believed to the communication took reasonable precaution to
be so cannot, without the consent of the affected protect its confidentiality.
person, be examined as to any communication or
confession made to or any advice given by him or her, Q: Can a public officer be examined after his
in his or her professional character, in the course of tenure on such communication?
discipline enjoined by the church to which the minister
or priest belongs. ➔ A: No. The Rule says, “A public officer cannot
be examined during or after his or her tenure
Who are covered by the privilege? as to communications made to him or her in
official confidence, when the court finds that
1. A minister the public interest would suffer by the
2. Priest disclosure.”
3. Person reasonably believed to be so
What matters are considered privilege? 2. Testimonial privilege

Rule 130, Section 27. Admission of a party. – The act,

Rule 130, Section 25. Parental and filial privilege. – declaration or omission of a party as to a relevant fact
No person shall be compelled to testify against his or may be given in evidence against him or her.
her parents, other direct ascendants, children or other
direct descendants, except when such testimony is The admission of a party is admissible only if that
indispensable in a crime against that person or by one admission is adverse to the party making such
parent against the other. admission. The act, declaration, or omission must be
presented as evidence against the party making the
Parental privilege act, declaration, or omission. It should not be in favor
of a party making the act, declaration, or omission.
■ A parent cannot be compelled to testify
against his child or direct descendants. Declarations of a party favorable to himself are not
admissible as proof of the facts asserted. Such
Filial Privilege declarations are ‘self-serving’.
■ A child may not be compelled to testify Self-serving evidence

against his parents or direct ascendants.
■ The statement of a party intended to serve his
Note: The privilege lies with the one who is called to own interest. It is a well established rule of
testify. evidence that declarations of a party favorable
to himself are not admissible. (People v Piring)
Example: I am called to testify against my son. I can
object. Not my son, but I am the one who can object ■ Q: I made a statement. My statement is “the
because the privilege belongs to me, not to my child. land in dispute is mine.” This statement was
heard by Roberto. Now, there came a case
Exception under the amendment involving that land. Sinong testigo ko?
Roberto. What will be the subject of his
When such testimony is indispensable in a crime testimony? That he heard me that the subject
against that person or by one parent against the other, land belongs to me. Will that be admitted as
the privilege will not apply. evidence?
People v. Invencion (2003) ➔ A: No, because that is self-serving.
The competency of Elven to testify is not affected by If, however, my statement is “The truth is,
Section 25, Rule 130 of the Rules of Court, otherwise that land is not mine.” Roberto heard it.
known as the rule on “filial privilege.” This rule is not Roberto, therefore, was made a witness of
strictly a rule on disqualification because a the opposing party, on my admission to him.
descendant is not incompetent or disqualified to Is my statement admissible as evidence?
testify against an ascendant. The rule refers to a
privilege not to testify, which can be invoked or ➔ A: Yes, because that statement is
waived like other privileges. As correctly observed by adverse to me.
the lower court, Elven was not compelled to testify
against his father; he chose to waive that filial privilege ■ Simply put, if a statement is in favor of me,
when he voluntarily testified against Artemio. Elven that is inadmissible because it is self serving.
declared that he was testifying as a witness against If the admission is against me, then that is
his father of his own accord and only “to tell the truth.” admissible as evidence.
Hence, his testimony is entitled to full credence.
ADMISSION CONFESSION
Rule 130, Section 26. Privilege relating to trade
secrets. – A person cannot be compelled to testify There is mere a There is an
about any trade secret, unless the non-disclosure will statement of fact not acknowledgement of
conceal fraud or otherwise work injustice. When directly involving an guilt. It is a statement of
disclosure is directed, the court shall take such acknowledgement of the accused that he
protective measure as the interest of the owner of the guilt or the criminal engaged in conduct
trade secret and of the parties and the furtherance of intent to commit the which constitutes a
justice may require. offense with which one crime.
is charged
3. Admissions and confessions A broader term which A specific type of

witness
includes confession admission
3) To negate a contention of undue delay
May be implied like Cannot be implied
admission by silence
4) To prove an effort to obstruct a criminal
May be a declaration, Only a declaration investigation or prosecution
act, or omission
Offer of Compromise in Criminal Cases
Except in criminal negligence, an offer of compromise

Rule 130, Section 28. Offer of compromise not by the accused may be received in evidence as an
admissible. – In civil cases, an offer of compromise is implied admission of guilt.
not an admission of any liability, and is not admissible
in evidence against the offeror. Neither is evidence of HOWEVER, an offer to pay, or the payment of
conduct nor statements made in compromise medical, hospital or other expenses occasioned by an
negotiations admissible, except evidence otherwise injury, is not admissible in evidence as proof of civil or
discoverable or offered for another purpose, such as criminal liability for the injury. (Good Samaritan Rule)
proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to Example of criminal negligence:
obstruct a criminal investigation or prosecution.
● Reckless imprudence resulting to homicide
In criminal cases, except those involving quasi-off ● Damage to property
enses (criminal negligence) or those allowed by law to ● Physical injuries
be compromised, an offer of compromise by the
accused may be received in evidence as an implied Even if you were the one who shot the victim, but you
admission of guilt. offered to pay, or you paid the medical expenses
incurred by the victim, it will NOT be treated as an
A plea of guilty later withdrawn or an unaccepted implied admission of guilt. However, when you offer to
offer of a plea of guilty to a lesser offense is not compromise, that is an implied admission of guilt.
admissible in evidence against the accused who made
the plea or offer. Neither is any statement made in the If your lawyer was the one who offered compromise
course of plea bargaining with the prosecution, which and it has your prior authority, then that is also an
does not result in a plea of guilty or which results in a implied admission of guilt.
plea of guilty later withdrawn, admissible.
RES INTER ALIOS ACTA
An offer to pay[,] or the payment of medical, hospital
or other expenses occasioned by an injury[,] is not First branch of Res Inter Alios Acta:
admissible in evidence as proof of civil or criminal
liability for the injury.
Rule 130, Section 29. Admission by third party. – The
rights of a party cannot be prejudiced by an act,
Offer of Compromise in Civil Cases declaration, or omission of another, except as
hereinafter provided.
It is clear in civil cases, an offer of compromise is not
an admission of liability and is not admissible against
the offeror. The first branch holds that whatever one says or does
or omits to do should only affect him but should not
Also evidence of conduct or statements during the affect or prejudice others.
compromise negotiation are inadmissible.
Illustration: If Roberto makes a statement before the
Can the statements or conduct made during media admitting his participation in the murder of
compromise negotiation be admissible in Carla, his statement is admissible against him under
evidence? Section 27, Rule 130. If he made a statement
implicating Lito and Carlos is not admissible against
A: In some instances, YES: Lito and Carlos applying the principle of res inter alios
acta under Section 29, Rule 130. Under such
1) Evidence of conduct or statements discovered principle, the statement of Roberto should not affect
other than during the negotiation. or prejudice Lito and Carlos upon their timely
objections.
2) If the offer is to prove bias or prejudice of a
Is this applicable to judicial admission?

A: No, because res inter alios acta is applicable only or act of the partner or agent.
to extra-judicial admission. It does not cover judicial
admission because the other accused has the Q: A, B, and C are partners. A, the managing partner
opportunity to cross-examine. (Yapyuco vs. sold the land owned by the partnership to D,
Sandiganbayan) claiming that B, and C consented to the sale. A made
such a manifestation in front of B and C which was
This rule only has reference to extrajudicial witnessed by X. Will the act of A, as testified to by X,
declarations. Hence, statements made in open court admissible against B and C?
by a witness implicating persons, aside from his own
judicial admissions, are admissible as declarations ➔ A: Yes. Provided that the existence of the
from one who has personal knowledge of the facts partnership is shown by evidence other than
testified to. such declaration or act.
EXCEPTIONS TO “RES INTER ALIOS ACTA” RULE Q: A, B, and C are partners. Later, they dissolved their
partnership. While the BIR was investigating the
dissolved partnership for tax liabilities, A admitted
1) Admission by a co-partner or agent (Sec. 30,
that they falsified receipts to evade tax liabilities. Is
Rule 130).
the statement of A admissible against B, and C?
2) Admission by co-conspirator (Sec. 31, Rule
➔ A: No. Because it was done outside the existence
130).
of the partnership.
3) Admission by privies (Sec. 32, Rule 130).
Q: Quezon applied for a loan with Navarro in the
amount of 200K. To secure the loan, N required Q to
4) Admission by silence (Sec. 33, Rule 130)
execute a PN and REM in favor of N. As proceeds of
the loan, N issued a check in favor of Q . Instead of
Why are these considered exceptions?
handing it personally to Q, N gave the check to Recto,
N’s agent, with the instruction not to give the check
Because these are extrajudicial admissions yet these
to Q, unless told by N. Recto did not give the check to
may be used as evidence against the party implicated.
Q, upon the instruction of N. Meanwhile, Navarro
(Gito)
foreclosed the REM on the ground that Quezon did
not pay his loan obligation. Quezon filed an action for
ADMISSION BY A CO-PARTNER OR AGENT annulment of REM. He claimed that the REM is void
because there is no contract of loan as he did not
Rule 130, Section 30. Admission by co-partner or receive the proceeds of the loan. Among his evidence
agent. – The act or declaration of a partner or agent is the representation of Recto that he is instructed by
authorized by the party to make a statement Navarro not to hand the check to him. Is Quezon’s
concerning the subject, or within the scope of his or representation binding to Navarro?
her authority[,] and during the existence of the
partnership or agency, may be given in evidence ➔ A: YES. The act or representation of Recto will
against such party after the partnership or agency is bind Navarro, the former being the agent of
shown by evidence other than such act or declaration. Navarro. This is on the assumption that there
The same rule applies to the act or declaration of a are other pieces of evidence which will prove the
joint owner, joint debtor, or other person jointly agency other than the act or representation of
interested with the party. Recto.
Requisites: ADMISSION BY A CO-CONSPIRATOR
1) The declaration or act of the partner or agent Rule 130, Section 31. Admission by conspirator. –
must have been made or done within the The act or declaration of a conspirator in furtherance
scope of his authority or when the agent is of the conspiracy and during its existence may be
authorized by the party to make a given in evidence against the co-conspirator after the
statement concerning the subject; conspiracy is shown by evidence other than such act of
declaration.
2) The declaration or act must have been done
during the existence of the partnership or
A conspiracy exists when two or more persons come
agency;
to an agreement concerning the commission of a
felony and decide to commit it (Art. 8, RPC).
3) The existence of partnership or agency is
proven by evidence other than the declaration
Once the conspiracy is proven, the act of one is the

act of all. Thus, the statement therefore of one may be conspiracy (People vs. Quidato, Jr)
admitted against the other co-conspirators as an
exception to the rule of res inter alios acta. People vs. Vda. De Ramos (2003)
Requisites: The res inter alios acta rule provides that the rights of
a party cannot be prejudiced by an act, declaration, or
1) The declaration or act be made or done during omission of another. Consequently, an extrajudicial
the existence of the conspiracy confession is binding only upon the confessant and is
not admissible against his co-accused. The reason for
2) The declaration or act must relate to or in the rule is that, on a principle of good faith and mutual
furtherance of the conspiracy convenience, a man's own acts are binding upon
himself, and are evidence against him. So are his
3) The conspiracy must be shown by evidence conduct and declarations. Yet it would not only be
other than such declaration rightly inconvenient, but also manifestly unjust, that a
man should be bound by the acts of mere
TAKE NOTE → For example, admission by a unauthorized strangers; and if a party ought not to be
co-conspirator, the one who is called to testify here is bound by the acts of strangers, neither ought their
not one of the conspirators. The one called to testify acts or conduct be used as evidence against him.
here is a third person who witnessed the act,
declaration, or omission of the coconspirator. In the
admission of a co-partner, it is not the co-partner who ADMISSION BY PRIVIES
is called to testify, but the third person who was able
to witness the act, declaration, or omission of a Rule 130, Section 32. Admission by privies. – Where
co-partner during the existence of a partnership. one derives title to property from another, the latter’s
Remember that the one called to testify here is a third act, declaration, or omission, in relation to the
person. property, is evidence against the former [if done] while
the latter was holding the title.
Q: A was arrested as a direct participant in the crime.
During a television interview, he admitted his
Who are privies
participation in the robbery. He also implicated B
and C as his other companions in planning and
Persons who are partakers or have an interest in any
executing the robbery. Is his statement admissible
action or thing, or any relation to another.
against B and C?
Examples:
➔ A: No, because the statement was done outside
the existence of conspiracy.
a) Lessor and lessee; grantor and grantee;
assignor and assignee = privies in a contract
Q: A, who was staying in a room adjacent to the room
of B, overheard B, instructing C and D that they b) executor/administrator and the estate of the
would serve as “lookouts” when B entered the house deceased = privies in representation
of E to commit robbery. A peaked at the hole and saw
c) Heir and ascendant = privies in blood or
B. But he was not able to see C and D. Later the house
succession
of E was robbed. Is the statement of B, as testified by
A, admissible against C and D?
Requisites:
➔ A: Yes. Provided that conspiracy must be shown
1) There must be an act, declaration or omission
by evidence other than such declaration or act.
by a predecessor-in-interest;
Q: A, B and C were prosecuted for conspiring to kill D.
2) The act, declaration, or omission of the
The evidence for the prosecution is the extra-judicial
predecessor-in interest must have occurred
confession of A and B executed in accordance with
while he was holding the title to the property
the constitution. In the extra-judicial confession, A
and B implicated C as the mastermind. Is the
3) The act, declaration or omission must be in
extra-judicial statement of A and B admissible
relation to the property.
against C?
Accordingly, when the former owner of the property
➔ A: No. The confessions were made after the
made the declaration after he ceased to be the owner
conspiracy had ended and after the
of the property, the rule on admission by privies does
consummation of the crime. Hence, it cannot be
not apply.
said that the execution of the affidavits were acts
or declarations made during the existence of

Who will testify here? Judge Gito was accused, he did nothing. He did not
deny, pinakinggan lang daw. Is this admissible as
A: Not the successor in-interest, but the one who evidence?
witnessed the act, declaration, or omission of the
predecessor-in-interest. ➔ A: Yes, as an exception to the res inter alios acta.
Technically, this is a statement of a third party
Q: Z inherited a house and lot from his father X. which is binding on Judge Gito because that is an
While X was alive he mortgaged this land to B. He exception to the principle of res inter alios acta.
openly told everyone that the land was mortgaged to
B. In a suit for judicial foreclosure of mortgaged CONFESSION
property against Z, B presented someone who heard
X saying that the inherited property was mortgaged
to B. Z objected on the ground that such statement Rule 130, Section 34. Confession. – The declaration of
would not bind him. Is the declaration X admissible an accused acknowledging his or her guilt of the
against Z? offense charged, or of any offense necessarily included
therein, may be given in evidence against him or her.
➔ A: Yes. The requisites are complied with.
Rule 133, Section 3. Extrajudicial confession, not
sufficient ground for conviction. – An extrajudicial
ADMISSION BY SILENCE
confession made by an accused shall not be sufficient
ground for conviction, unless corroborated by
Rule 130, Section 33. Admission by silence. – An act evidence of corpus delicti.
or declaration made in the presence and within the
hearing or observation of a party who does or says While a judicial confession may sustain a conviction,
nothing when the act or declaration is such as an extrajudicial confession is not sufficient for
naturally to call for action or comment if not true, and conviction. The rule requires that the confession be
when proper and possible for him or her to do so, may corroborated by evidence of corpus delicti.
be given in evidence against him or her.
Corpus delicti is the “body of the crime” or the
The idea of the rule is that if an accusation is made, offense. It means the actual commission of the crime
and a reasonable person would have denied the same and someone is criminally responsible therefor.
if it were false, the failure to deny the accusation by
the person accused may be construed as an implied Corpus delicti means the substance of the crime; it is
admission of the truth of the accusation and may be the fact that a crime has actually been committed,
given in evidence against him. (People vs Sota, 2017), or the actual commission by
someone of the particular crime charged (Cruz v.
Requisites: People, 2009)
1) He must have heard or observed the act or Corpus Delicti in certain crimes
declaration of the other person;
■ In the prosecution for illegal drugs, the corpus
2) He must have had the opportunity to deny it; delicti is the drug itself (Fajardo vs. People)
3) He must have understood the statement; ■ In theft, corpus delicti has two elements: 1)
property was lost by the owner; 2) that it was
4) He must have an interest to object as he
lost by felonious taking (Zapanta vs. People,
would naturally have done if the statement
2013)
was not true;
5) The facts are within his knowledge; and ■ In illegal possession of firearms, the accused
lack of license or authority to possess or carry
6) The fact admitted or the inference to be drawn firearms is the corpus delicti (Sayco vs. People)
from his silence is material to the issue.
(People vs. Ciobal) ■ In arson, the corpus delicti is generally
satisfied by proof of the bare occurrence of
Q: A lady accused Judge Gito in front of the public the fire, e.g., the charred remains of a house
that the child that was with her is his child. In a burned down and of its having been
petition for recognition, the petitioner called to the intentionally caused. Even the uncorroborated
witness stand a person who was present when that testimony of a single eyewitness, if credible,
lady accused Judge Gito that the son that was with may be enough to prove the corpus delicti
her is his son. Such witness would testify that when and to warrant conviction (People v. De Leon,

2009) you did or did not do a similar thing at another

time.
When extra-judicial confession admissible
When are similar acts or previous acts admissible?
An extra-judicial confession is admissible in evidence
if the following requisites have been satisfied: When the purpose of the offer is to prove:
1) It must be voluntary; 1. Specific intent

2) It must be made with the assistance of 2. Knowledge
competent and independent counsel; 3. Identity
3) It must be express; and 4. Plan
4) It must be in writing (People v. Reyes, 2009) 5. System
6. Scheme
4. Previous conduct as evidence 7. Habit
8. Custom
Second branch of Res Inter Alios Acta: 9. Usage, and the like
Rule 130, Section 35. Similar acts as evidence. – Q: Si accused, pinasok ang bahay ng victim para
Evidence that one did or did not do a certain thing at patayin si victim, pero wala doon si victim. Bale
one time is not admissible to prove that he or she did nakaligtas. After one month, pinasok na naman ni
or did not do the same or similar thing at another time; accused ang bahay ni victim. Wala ulit si victim sa
but it may be received to prove a specific intent or bahay. After a month, pinasok na naman pero wala
knowledge, identity, plan, system, scheme, habit, pa rin si victim. Now, on his fourth try, the victim is in
custom or usage, and the like. the house, so the accused stabbed the victim. The
victim died. Lahat ng pagpasok sa bahay were
blottered. Can you use these as evidence to prove
May similar conduct be admitted as evidence? that the accused was the one who killed the victim?
No. Evidence that one did or did not do a certain thing ➔ A: No, because that is a violation of the similar
at one time is not admissible to prove that he or she conduct rule.
did or did not do the same or similar thing at another
time. But, can you offer these instances of pagpasok sa
bahay ni victim as evidence?
The general rule is that the law will not consider
evidence that a person has done a certain act at a ➔ A: Yes, to prove plan, to prove intent, to prove
particular time as probative of a contention that he knowledge. But not to prove the fact that he was
has done a similar act at another time. A similar the one who killed the victim.
conduct which does not even sufficiently establish a
plan or scheme is not admissible (Enriquez vs. People) Example of previous conduct as evidence
Illustration: In a the prosecution for the felony of A confession voluntarily executed in another case by
serious physical injuries against the accused, the an accused, containing detailed recitals which could
prosecution called to the witness stand, the record not have been fabricated, where he admitted that
officer of PNP municipal police station to prove that before he was arrested in the case at bar, he became
the accused could have committed the felony obsessed with another child whom he raped (thereby
considering they have records in their blotter that the revealing that he has paedophiliac tendencies
accused had been involved in several mauling because he prefers young girls as sexual objects, a
incidents. The testimony of the record officer is sexual deviation or perversion belonging to the
inadmissible in evidence for violation of the res inter category of paedophilia erotica), may be admitted as
alios acta rule. an evidence of similar conduct on the part of the
accused which lends credibility to the declaration of
Q: You are known as a “basagulero.” You have many the 9-year old victim in the case at bar that she was
blotters in the barangay. Now, you have been charged sexually abused by the accused (People vs. De Jesus,
with attempted homicide and one of the evidence of 1978)
the prosecution is the blotters against you over the
years. This evidence is offered to prove that you 5. Testimonial knowledge
committed attempted homicide. Will it be admitted
as evidence?
Rule 130, Section 22. Testimony confined to personal
➔ A: No, because evidence that you did or did not knowledge. – A witness can testify only to those facts
do at one time is not admissible to prove that which he or she knows of his or her personal

knowledge; that is, which are derived from his or her witness is hearsay if it is offered to prove the
own perception. [old hearsay rule] substance of such testimony or to prove the matters
asserted by that statement.
Simply put, something that is a product of his or her
own perception. If what you are going to testify to is What is covered by the word “statement”?
not a product of your own perception, but a product of
another’s, then you are not allowed to testify because a) Oral or written assertion;
you lack personal knowledge.
■ Example: The prosecution presented
Roberto to testify that Lito confided to
Under the old rule, hearsay is equivalent to lack of
him that he saw Luis kill Juan.
personal knowledge. But under the new rule,
Roberto’s testimony is offered to
hearsay is different from lack of personal
prove that Luis killed Juan. The
knowledge. For example, you testified that A killed B,
testimony of Roberto is objectionable
but the truth of the matter is that you did not see it.
because it is hearsay. Roberto is
Nobody even informed you that A killed B. This can be
testifying on the statement made by
objected to. On what ground? Not hearsay, but on
Lito in order to prove the matters
the ground of lack of personal knowledge.
asserted by the latter’s statement. The
subject of testimony is an oral
6. Hearsay and exceptions to the hearsay rule
statement.
Rule 130, Section 37. Hearsay. – Hearsay is a b) Non-verbal conduct of a person, if it is

statement other than one made by the declarant while intended by him or her as an assertion.
testifying at a trial or hearing, offered to prove the
truth of the facts asserted therein. A statement is (1) an ■ Example1: The prosecution presented
oral or written assertion or (2) a non-verbal conduct of Roberto to testify that Lito handed to
a person, if it is intended by him or her as an assertion. him his written statement detailing
Hearsay evidence is inadmissible except as otherwise how Luis killed Juan. Roberto’s
provided in these Rules. xxx testimony is offered to prove that Luis
killed Juan. The testimony of Roberto
NOTE: The hearsay under the old rule is now the new is objectionable because it is hearsay.
Section 22. Under the old rule, hearsay is equivalent Roberto is testifying on the written
to lack of personal knowledge. However, under the statement made by Lito to prove the
amendment, hearsay is different from lack of personal matters asserted by the latter’s written
knowledge. statement. The subject of testimony is
a written statement.
What is hearsay?
■ Example2: The prosecution presented
1. Hearsay is a statement other than one made Roberto to testify that he saw Lito
by the declarant while testifying at a trial or pointing to Luis when asked who
hearing, offered to prove the truth of the facts killed Juan. The testimony of Roberto
asserted therein. is offered to prove that Luis killed
Juan. It is objectionable because it is
2. A statement is (1) an oral or written assertion hearsay. The subject of testimony
or (2) a non-verbal conduct of a person, if it is here is non-verbal act.
intended by him or her as an assertion.
Rule 130, Section 22. Testimony confined to personal
3. Hearsay evidence is inadmissible except as
knowledge. – A witness can testify only to those facts
otherwise provided in this Rule.
which he or she knows of his or her personal
knowledge; that is, which are derived from his or her
Elements of Hearsay
own perception.
1) There must be an out of court statement
which was not made by the declarant in the This section is applied when there is total lack of
hearing or trial. personal knowledge.
2) The statement is offered by the Example: Nobody is telling you that it was Luis who
witness-declarant in court to prove the truth of killed Juan. You just testified that Luis killed Juan. That
the matters asserted by the statement. is lack of personal knowledge. But if somebody told
you that Luis killed Juan, and you testified on the
Therefore, all out of court statements of an “in trial”

basis of what was told to you, that is hearsay. of court assertion of the witness.”
Rule 130, Section 37. Hearsay. xxx Objection overruled. It is not hearsay. Roberto is
cross-examined on how he is able to identify Juan.
A statement is not hearsay if the declarant testifies at
the trial or hearing and is subject to cross-examination EXCEPTIONS TO HEARSAY
concerning the statement, and the statement is
a) Dying declarations (Sec. 38, Rule 130)
(a) inconsistent with the declarant’s testimony, and
was given under oath subject to the penalty of perjury b) Statement of decedents or persons of
at a trial, hearing, or other proceeding, or in a unsound mind (Section 39, Rule 130)
deposition;
c) Declaration against interest (Sec. 40, Rule
(b) consistent with the declarant’s testimony and is 130)
offered to rebut an express or implied charge against
the declarant of recent fabrication or improper d) Act or declaration about pedigree (Sec. 41,
influence or motive; or Rule 130)
e) Family reputation or tradition regarding

(c) one of identification of a person made after
pedigree (Sec. 42, Rule 130)
perceiving him or her.
f) Common reputation (Sec. 43, Rule 130)
Example 1
g) Part of res gestae (Sec. 44, Rule 130)
Roberto testified that he saw Luis kill Juan. He was
being cross-examined by the counsel for the defense h) Record of regularly conducted business
on the statement he executed before the police which activity (Sec. 45, Rule 130)
is inconsistent with his present testimony.
i) Entries in the official records (Sec. 46, Rule
130)
“Objection your Honor. Hearsay because that is an out
of court statement of the witness.” j) Commercial Lists and the like (Sec. 47, Rule
130)
Objection overruled. It is not hearsay. Roberto is
cross-examined on his inconsistent statement. The k) Learned treatise (Sec. 48, Rule 130)
purpose is to impeach his testimony.
l) Testimony or deposition at the former
Example 2 proceeding (Sec. 49, Rule 130)
Roberto testified that he saw Luis kill Juan. He was m) Residual exception (Sec. 50, Rule 130)
cross-examined by the counsel for the defense on the
statement he executed before the police which is DYING DECLARATION
inconsistent with his present testimony. During
re-direct, the prosecution confronted Roberto with an
Affidavit he executed before the NBI which is Rule 130, Section 38. Dying declaration. – The
consistent with his testimony. declaration of a dying person, made under the
consciousness of an impending death, may be received
“Objection your Honor. Hearsay because that is an out in any case wherein his or her death is the subject of
of court statement of the witness.” inquiry, as evidence of the cause and surrounding
circumstances of such death.
Objection overruled. It is not hearsay. Roberto is
cross-examined on his consistent statement to rebut ELEMENTS:
the implied charge of fabrication.
1) The declaration concerns the cause and the
Example 3 surrounding circumstances of the declarant’s
impending death.
Roberto testified that he saw Luis killed Juan. He was
being cross-examined on how he was able to 2) It is made when the death appears to be
recognize Luis as the one who killed Juan. imminent and the declarant is under a
consciousness of an impending death.
“Objection your Honor. Hearsay because that is an out
3) The declarant would have been competent to

testify had he or she survived. hearsay.
4) The dying declaration is offered in case in Is dying declaration confined to criminal cases
which the subject of inquiry involves the only?
declarant’s death
No. Under Section 31 of the old rule, the declaration
Q: Juan stabbed Pedro. Judge Gito saw Pedro lying on of a dying person, made under the consciousness of
the ground. Judge Gito offered to bring Pedro to the an impending death, may be received in a criminal
hospital but Pedro refused and said “Wala ito pare. case wherein his death is the subject of inquiry, as
Hindi mamamatay ‘to. Matibay ‘to.” Judge Gito asked evidence of the cause and surrounding circumstances
Pedro who stabbed him. Pedro said “Pare, si Juan”. of such death.
Thereafter, Pedro died. Now, Judge Gito testifies in
court. Is the declaration made by Pedro considered a But under Section 38 of the new rule, the declaration
dying declaration? of a dying person, made under the consciousness of
an impending death, may be received in any case
➔ A: No, because when he uttered such statement, wherein his death is the subject of inquiry, as evidence
he was not under the consciousness of an of the cause and surrounding circumstances of such
impending death. death.
Q: Pedro had a wound in his finger. Judge Gito saw Is dying declaration admissible to prove the
him lying on the ground. Pedro said, “Pare, ang innocence of the accused?
laki-laki ng sugat ko sa daliri. Pare, mamatay na ako.”
Judge Gito replied, “E putang ina, kaliit-liit ng sugat Yes. The declarations of a deceased person while in
mo. Hindi ka mamamatay diyan.” Pedro insisted and anticipation of certain impending death, concerning
said, “Pare, mamamatay na talaga ako. Dalhin mo ako the circumstances leading up to the death, are
sa ospital.” Thereafter, Pedro got a heart attack but admissible in a prosecution of the person charged
before he got a heart attack he was able to say that it with killing the declarant. Such dying declarations are
was Juan who wounded him.” In the prosecution admissible in favor of the defendant as well as against
against Juan, can you admit Pedro’s dying him. (U.S. vs. Antipolo, 37 SCRA 726)
declaration?
STATEMENT OF DECEDENT OR PERSON OF
➔ A: Yes. In dying declaration, it must be the UNSOUND MIND
victim’s point of view that the death was
imminent. Remember that it is the victim’s point
of view not the witness. Rule 130, Section 39. Statement of decedent or
person of unsound mind. – In an action against an
Q: Juan stabbed Pedro. Judge Gito saw Pedro lying on executor or administrator or other representative of a
the ground. Judge Gito asked Pedro if he would like deceased person, or against a person of unsound
to be brought to the hospital and Pedro replied, “Oo, mind, upon a claim or demand against the estate of
pare. Mamamatay na ako. Pero pare, bago ako such deceased person or against such person of
mamatay e may sasabihin ako sa ‘yo. Alam mo ba unsound mind, where a party or assignor of a party or
‘yong inaalagaan ni kumare, ‘yong bunso niyo? Anak a person in whose behalf a case is prosecuted testifies
ko ‘yon.” Is Pedro’s declaration admissible as dying on a matter of fact occurring before the death of the
declaration? deceased person or before the person became of
unsound mind, any statement of the deceased or the
➔ A: NO, because it does not concern the person of unsound mind, may be received in evidence
circumstances surrounding his death. It is totally if the statement was made upon the personal
alien from the facts and circumstances of his knowledge of the deceased or the person of unsound
death. mind at a time when the matter had been recently
perceived by him or her and while his or her
Q: Juan stabbed Pedro. Judge Gito saw Pedro lying on recollection was clear. Such statement, however, is
the ground. Judge Gito asked Pedro who stabbed him. inadmissible if made under circumstances indicating
Pedro replied, “Sabi ni Lito, si Juan daw eh.” its lack of trustworthiness.
Thereafter, Pedro died. In the prosecution for
murder against Juan, Judge Gito was called to testify NOTE: The dead man statute is not anymore
on the dying declaration of Pedro. Is dying applicable. There is no more a dead man statute
declaration applicable? under the present Rule. Why? Because those who are
prohibited to testify under the dead man statute are
➔ A: NO, because even if Pedro survived, he is not now allowed to testify as an exception to the hearsay
competent to testify. His declaration was rule.

Section 39 is the former Section 23. However, unlike filed against him, the accused testified that Carlito,
the Section 23 of the old Rule, parties, assignor of before his death, acknowledged to have committed
parties or persons in whose behalf the case is the crime for which the accused was charged. Should
prosecuted are not anymore prohibited to testify in an such testimony be admitted?
action against an executor or administrator of the
deceased or person of an unsound mind upon a claim YES, provided that the offeror will present
or demand against the estate of such deceased corroborating circumstances that will clearly indicate
person or against such person of unsound mind. the trustworthiness of the statement.
The coverage of the testimony is any statement made ACT OR DECLARATION ABOUT PEDIGREE
by the deceased or person of unsound mind.
What are the conditions of the admissibility of Rule 130, Section 41. Act or declaration about
those statements? pedigree. – The act or declaration of a person deceased
or unable to testify, in respect to the pedigree of
The statement may be received in evidence if the another person related to him or her by birth[,]
statement was made upon the personal knowledge of adoption, or marriage or, in the absence thereof, with
the deceased or the person of unsound mind at a time whose family he or she was so intimately associated as
when the matter had been recently perceived by him to be likely to have accurate information concerning
or her and while his or her recollection was clear. his or her pedigree, may be received in evidence where
it occurred before the controversy, and the relationship
When may such statements be denied admission? between the two [(2)] persons is shown by evidence
other than such act or declaration. The word
Such statement, however, is inadmissible if made “pedigree” includes relationship, family genealogy,
under the circumstances indicating its lack of birth, marriage, death, the dates when and the places
trustworthiness. where these facts occurred, and the names of the
relatives. It embraces also facts of family history
intimately connected with pedigree.
DECLARATION AGAINST INTEREST
REQUISITES:
RUle 130, Section 40. Declaration against interest. –
The declaration made by a person deceased or unable 1) The declarant is dead or unable to testify;
to testify against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made 2) The declarant is related by birth, adoption or
so far contrary to the declarant’s own interest that a marriage to the person whose pedigree is in
reasonable person in his or her position would not issue; absence thereof, with whose family he
have made the declaration unless he or she believed it or she was so intimately associated as to be
to be true, may be received in evidence against himself likely to have accurate information concerning
or herself or his or her successors in interest and his or her pedigree;
against third persons. A statement tending to expose
the declarant to criminal liability and offered to 3) The declaration was made before the
exculpate the accused is not admissible unless controversy;
corroborating circumstances clearly indicate the
trustworthiness of the statement. 4) The relationship between the two persons is
shown by evidence other than such
Example 1 declaration.
In a settlement of Carlito, Luisa, the mother Carlo, "Pedigree" includes relationship, family genealogy,
presented a letter, purportedly sent by Carlito to Luisa, birth, marriage, death, the dates when and the places
acknowledging his responsibility as the father Carlo. where these facts occurred, and the names of the
The administrator of Carlito objected to said testimony relatives. It embraces also facts of family history
and the admission of the letter for being hearsay. intimately connected with pedigree.
Should the objection be sustained?
Example: The declaration of A who is dead already,
NO. Because such statement is in the nature of prior to his death and prior to any controversy, that B
declaration against interest under Section 40, Rule is his illegitimate son, is a declaration about pedigree.
130.
Q: Juan is disputing Judge Gito’s relationship with his
Example 2 grandfather. Before his grandfather died, he said that
Judge Gito really is his grandson considering the fact
In order to prove his innocence in the murder case that Judge Gito’s father is his son. This statement was

heard by Mario. Mario testifies in court. Is this Revised Rules on Evidence.

hearsay?
In the present case, the applicability of Rule 130,
➔ A: Technically this is hearsay but this is an Section 39 of the Revised Rules on Evidence to prove
exception to the hearsay rule. the victim's age is beyond question. xxx All the
preconditions are obtaining in the case at bar
FAMILY REPUTATION OR TRADITION REGARDING considering that the date of birth of the rape victim is
PEDIGREE being put in issue; that the declaration of the victim's
grandfather relating to tradition (sending a child to
school upon reaching the age of seven) existed long
Rule 130, Section 42. Family reputation or tradition before the rape case was filed; and that the witness
regarding pedigree. – The reputation or tradition testifying to the said tradition is the maternal
existing in a family previous to the controversy, in grandfather of the rape victim.
respect to the pedigree of any one of its members, may
be received in evidence if the witness testifying
thereon be also a member of the family, either by COMMON REPUTATION
consanguinity[,] affinity, or adoption. Entries in family
bibles or other family books or charts, engraving on Rule 130, Section 43. Common reputation. –
rings, family portraits and the like, may be received as Common reputation existing previous to the
evidence of pedigree. controversy, as to boundaries of or customs affecting
lands in the community and reputation as to events of
Judge Gito: This is another exception to the hearsay general history important to the community, or
rule. Your family is there. Your pictures are there. respecting marriage or moral character, may be given
These can be used to prove pedigree. Even traditions in evidence. Monuments and inscriptions in public
used by the family can be used to prove pedigree places may be received as evidence of common
provided the one who proves tradition is a member of reputation.
the family.
Common reputation cannot be used to prove
Example: Every December 30, the Gito family has a pedigree, but it can be used to prove marriage or
family reunion. Walang nakakapasok doon na hindi moral character.
part ng family. Now, the pedigree of one member is
contested. What evidence is offered? One family Can you use common reputation to delineate the
member said, “lagi naman kasama ‘yan sa reunion e.” boundaries between two parcels of land?
This can be used as evidence to such person, whose
pedigree is questioned, that he is indeed a member of Yes. Usually, when you ask an old person about the
the Gito family. boundary of their property, alam na alam nila ang
boundary ng lupa.
REQUISITES
Please take note: common reputation in community
1) There is controversy in respect to the pedigree cannot be admitted to prove pedigree, except
of any members of the family marriage which can be evidenced by common
reputation.
2) The reputation or traditions of the pedigree of
the person concerned existed previous to the
controversy. Jison v. Court of Appeals (1998)
3) The witness testifying to the refutation or [T]he weight of authority appears to be in favor of the
tradition regarding the pedigree of the person theory that it is the general repute, the common
is a member of the family of said person, reputation in the family, and not the common
either by consanguinity of affinity. reputation in community, that is a material element of
evidence going to establish pedigree. xxx [Thus]
matters of pedigree may be proved by reputation in
People v. Alegado
the family, and not by reputation in the neighborhood
or vicinity, except where the pedigree in question is
The testimonies of the prosecution witnesses, the
marriage which may be proved by common reputation
offended party herself and her maternal grandfather,
in the community.
Cornelio Villarosa, as to the fact that the victim was
born on September 5, 1976 do not constitute hearsay
evidence as claimed by the accused-appellant but PART OF RES GESTAE
rather fall under the exceptions to the hearsay rule as
provided under sections 39 and 40 of Rule 130 of the
Rule 130, Section 44. Part of the res gestae. –

Statements made by a person while a startling Gito’s statement be used as part of res gestae?
occurrence is taking place or immediately prior or
subsequent thereto[,] under the stress of excitement ➔ A: No, because it has nothing to do with the
caused by the occurrence with respect to the startling occurrence. The statement must be
circumstances thereof, may be given in evidence as related to the startling statement for it to be
part of the res gestae. So, also, statements considered res gestae.
accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as Please take note: the statement must be so near and
part of the res gestae. contemporaneous with the startling occurrence.
However, sometimes the reaction is delayed.
Kinds of Res Gestae
Example: Judge Gito saw Juan stab Pedro. Upon
1. Spontaneous statements seeing such, okay lang, parang wala lang.
2. Verbal acts Namalengke si Judge Gito, nag grocery, umuwi sa
bahay, nagluto, kumain ng dinner, humiga sa kama.
Elements of Res Gestae (Spontaneous statement) Noong nakahiga na, saka nagulat si Judge Gito. “O,
my G! Sinaksak ni Juan si Pedro.”
1) There is a startling occurrence.
When Judge Gito uttered such statement, was he
2) A statement was made while the event is still under the stress of excitement caused by the
taking place, or immediately prior or occurrence? Yes.
subsequent thereto.
Can it be used as part of res gestae? Yes., because
3) The statement was made before the declarant when he uttered that statement, he was still under
had time to contrive or devise falsehood. stress, despite the fact that there was a considerable
lapse of time.
4) The statement relates to the circumstances of
the startling event or occurrence.
People vs. Lupac (2012)
Q: Judge Gito saw Juan stab Pedro. He shouted, “O, my The requisites were meet in one case where the
G! Sinaksak ni Juan si Pedro!” Mario heard his victim went to her aunt’s house immediately after
statement. Note that it must be Mario who heard escaping from the crime scene and spontaneously,
Judge Gito’s statement that Juan stabbed Pedro, who unhesitatingly and immediately declared to her that
will be called to testify. the accused had sexually abused her. Such manner
of denunciation of him as rapist was confirmed by
Was there a startling occurrence? the aunt’s testimony about the victim’s
panic-stricken demeanor and her use of words
➔ Yes, that Juan stabbed Pedro. sufficiently indicating her being raped.
What about Judge Gito’s statement? People vs. Salafranca
➔ Yes. It is so contemporaneous with the When the deceased gave the identity of his
event because such was uttered when assailant to another, he was referring to a startling
Juan stabbed Pedro. occurrence, i.e., his stabbing by the accused. The
victim was then on board the taxicab that would
What about the third requisite? bring him to the hospital and had no time to
contrive his identification of the accused as the
➔ Because there was no lapse of time, it assailant. His utterance about the accused having
was automatic on Judge Gito’s part to stabbed him was made in spontaneity and only in
utter such statement that he had no reaction to a startling occurrence.
time to concoct falsehood.
People vs. Santillan (2017)
And as to the 4th requisite, is his statement
Ernesto's statement referred to a startling
related to what Judge Gito witnessed?
occurrence, that is, him being stabbed by Dodong,
Eugene, Ramil, and a certain "Palaka." At the time
➔ Yes.
he relayed his statement to Julie Ann, he was
wounded and blood oozed from his chest. Given his
Q: Judge Gito saw Juan kill Pedro. Then he exclaimed,
condition, it is clear that he had no time to contrive
“Ninakaw ni Lito ang Rolex ni Carlito.” Apparently,
the identification of his assailants. Hence, his
Lito and Carlito had a prior case of theft. Can Judge
utterance was made in spontaneity and only in

person with knowledge thereof, and kept in the

reaction to the startling occurrence. Definitely, such
regular course or conduct of a business activity, and
statement is relevant because it identified the
such was the regular practice to make the
authors of the crime.
memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are
Elements of Res Gestae (verbal acts) shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule on
1) The principal act to be categorized must be hearsay evidence.
equivocal
This is applicable in a business transaction.
2) The equivocal act must be material to the
issue
Example: A security guard has a record of persons in
3) The statement must accompany the equivocal vehicles who enter their compound. Nakajot down
act ‘yon sa log book, or in a CCTV. Now, who is the best
witness on this fact? Of course the security guard.
4) The statement gives a legal significance to Pero paano kung wala ‘yong guard? It may be testified
equivocal act by the custodian or other qualified witness.
Example: Who will testify on those records of business

activity?
In a collection suit filed by A against B where the loan
is not evidenced by a written document. The custodian of those records or other qualified
witness. This is considered an exception to the
Q. Mr. witness, did you testify that you saw the hearsay rule because the custodian is not actually the
plaintiff give money to the defendant? one who recorded the business activity.
A. I did, sir. ENTRIES IN OFFICIAL RECORDS
Q. What, if any, did anybody say at the time the Rule 130, Section 46. Entries in official records. –
money was handed over by the plaintiff to the Entries in official records made in the performance of
defendant? his or her duty by a public officer of the Philippines, or
by a person in the performance of a duty specially
A. As the plaintiff handed the money, he said to enjoined by law, are prima facie evidence of the facts
the defendant “This is the P10,000 you told me therein stated.
you were borrowing from me.”
Q. What did the defendant say, if any? REQUISITES
A. The defendant said, “Thank you. I will pay you 1) The entry was made by a public officer or by
after a year.” another person specifically enjoined by law to
do so.
What is the equivocal act here?
2) It was made by the public officer, or by such
other person in the performance of a duty
It is the act of giving money. You do not know the
specifically enjoined by law.
meaning of one giving money to another. Is it payment
of a debt? Is it a donation? Is it a gift or what? You do 3) The public officer had sufficient knowledge of
not know. It’s the statement accompanied by the act
the facts he stated which must have been
that gives legal significance to the act of giving
acquired by the public officer personally or
money. That is res gestae verbal acts.
through official information.
RECORDS OF REGULARLY CONDUCTED Q: Juan is a policeman. Mario reported an incident.

BUSINESS ACTIVITY “Mamang pulis, may nagsaksakan po sa aming lugar.
Sinaksak po si kapitan.” Juan asked, “Sino ang
Rule 130, Section 45. Records of regularly conducted sumaksak kay Kapitan?” to which Mario replied, “Si
business activity. – A memorandum, report, record or Konsehal po.” Juan asked Mario how did he know of
data compilation of acts, events, conditions, opinions, the incident. Mario replied, “Kitang-kita ko po noong
or diagnoses, made by writing, typing, electronic, sinaksak ni Konsehal si Kapitan.” Juan said, “Sige
optical or other similar means at or near the time of or isulat natin sa blotter yan.” In a prosecution for
from transmission or supply of information by a murder filed by the heirs of Kapitan against
Konsehal, one of the evidence of prosecution was the

blotter, to prove that Konsehal stabbed Kapitan. Is it Rule 130, Section 49. Testimony or deposition at a
an exception to the hearsay rule? former proceeding. – The testimony or deposition of a
witness deceased or out of the Philippines or who
➔ A: No, because the third requisite is not cannot, with due diligence, be found therein, or is
complied with. Because the public officer has unavailable or otherwise unable to testify, given in a
no sufficient knowledge of the facts he stated former case or proceeding, judicial or administrative,
therein. involving the same parties and subject matter, may be
given in evidence against the adverse party who had
What if the public officer investigated therein? He the opportunity to cross-examine him or her.
was able to learn, based on his investigation, that it
was indeed Konsehal who killed Kapitan, and he
Example: There is an administrative case in a criminal
entered into the records his investigation. He now
case. The proceeding in the administrative case can
has personal knowledge of it. During the hearing for
be used as evidence in the criminal case provided that
the prosecution of murder, the public officer is not
the witness is already deceased, or out of the
available anymore. Who is available now is the
Philippines, or cannot be, with due diligence, found, or
custodian of the blotter. Can it be used to prove that
is unavailable or otherwise unable to testify.
Konsehal killed Kapitan?
REQUISITES
➔ A: Yes, because Section 46 provides that it is
considered a prima facie evidence of what is
1) The witness is dead or out of the Philippines
contained therein.
or who cannot, with due diligence, be found
therein, or is unavailable or otherwise unable
DST Movers Corp. vs. People’s General Insurance to testify
(2016)
2) His testimony or deposition was given in a
It is plain to see that the matters indicated in the former case or proceeding, judicial or
Report are not matters that were personally known to administrative, between the same parties or
PO2 Tomas. The Report is candid in admitting that the those representing the same parties
matters it states were merely reported to PO2 Tomas
by "G. Simbahon of PNCC/SLEX." It was this "G. 3) The former case involved the same subject as
Simbahon," not PO2 Tomas, who had personal that in the present case, although on different
knowledge of the facts stated in the Report. Thus, cause of action
even as the Report embodies entries made by a
public officer in the performance of his duties, it fails 4) The issue testified to by the witness in the
to satisfy the third requisite for admissibility for entries former trial is the same issue involved in the
in official records as an exception to the Hearsay Rule. present case
5) The adverse party had the opportunity to

Rule 130, Section 47. Commercial lists and the like. cross-examine the witness in the former case
– Evidence of statements of matters of interest to (Manliclic vs. Calaunan)
persons engaged in an occupation contained in a list,
register, periodical, or other published compilation is
RESIDUAL EXCEPTION
admissible as tending to prove the truth of any
relevant matter so stated if that compilation is
published for use by persons engaged in that Rule 130, Section 50. Residual exception. – A
occupation and is generally used and relied upon by statement not specifically covered by any of the
them therein. foregoing exceptions, having equivalent circumstantial
guarantees of trustworthiness, is admissible if the
Rule 130, Section 48. Learned treatises. – A court determines that (a) the statement is offered as
published treatise, periodical or pamphlet on a subject evidence of a material fact; (b) the statement is more
of history, law, science, or art is admissible as tending probative on the point for which it is offered than any
to prove the truth of a matter stated therein if the court other evidence which the proponent can procure
takes judicial notice, or a witness expert in the subject through reasonable efforts; and (c) the general
testifi es, that the writer of the statement in the treatise, purposes of these [R]ules and the interests of justice
periodical or pamphlet is recognized in his or her will be best served by admission of the statement into
profession or calling as expert in the subject. evidence. However, a statement may not be admitted
under this exception unless the proponent makes
known to the adverse party, sufficiently in advance of
TESTIMONY OR DEPOSITION AT A FORMER
the hearing, or by the pre-trial stage in the case of a
PROCEEDING
trial of the main case, to provide the adverse party
with a fair opportunity to prepare to meet it, the

proponent’s intention to offer the statement and the newspaper can now be covered by residual exception.
particulars of it, including the name and address of the (Judge Gito)
declarant.
Residual evidence is related to “standard of totality
Judge Gito: If an evidence does not fall under the of evidence rule”
twelve exceptions, then it can be admitted as residual
exception. It is the consideration of all the pieces of evidence
adduced in their totality, and to consider any evidence
Before a residual exception may be admitted, the otherwise inadmissible under our usual rules to be
court must satisfy the substantive and procedural admissible if it is consistent with the admissible
requirements for the admissibility of residual evidence adduced. In other words, it is the reduction
exceptions. of the rules to the most basic test of reason — i.e., to
the relevance of the evidence to the issue at hand and
Substantive requirements for the admissibility of its consistency with all other pieces of adduced
residual exception: evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test (Razon,
1) Equivalent circumstantial guarantees of Jr. v. Tagitis)
trustworthiness.
7. Opinion rule
■ Simply put, dapat ito ay
kapanipaniwala, kahit na ito’y Rule 130, Section 51. General rule. – The opinion of a
hearsay, naniniwala ka pa rin na witness is not admissible, except as indicated in the
pwede itong tanggapin at paniwalaan following sections.
ng korte.
When opinion evidence is admissible; expert
2) The statement is offered as evidence of a
testimony
material fact;
3) The statement is more probative on the point Rule 130, Section 52. Opinion of expert witness. –
for which it is offered than any other evidence The opinion of a witness on a matter requiring special
which the proponent can procure through knowledge, skill, experience, training or education,
reasonable efforts. which he or she is shown to possess, may be received
in evidence.
4) The general purposes of these rules and the
interests of justice will be best served by Under the old Rule, Judges do not have standards of
admission of the statement into evidence. how to give weight to the opinion of an expert witness.
Procedural Requirement for Admission of residual Under the amendment, Judges can consider the
exception following:
1) It must advise the opposing party sufficiently a) Whether the opinion is based upon sufficient
in advance of the trial or hearing about the facts or data;
statement and the name and address of the
declarant. b) Whether it is the product of reliable principles
and methods;
■ This is to allow the opposing party
time to prepare its response to c) Whether the witness has applied the
arguments in support of the proposed principles and methods reliably to the facts of
admission. the case; and
■ Before you are allowed to present a d) Such other factors as the court may deem
residual exception, you must notify helpful to make such determination. (Sec. 5,
the other party that you are going to Rule 133)
present evidence by way of residual
exception. Bacalso v. Padigos
Example: Technically, a newspaper is inadmissible; it
Expert opinions are not ordinarily conclusive. When
is hearsay. But supposing the reputation of the person
faced with conflicting expert opinions, courts give
who wrote an article there is that he never lies to all of
weight and credence to that which is more complete,
the things that he reports, this can now be admitted
thorough and scientific.
as evidence. The article the person wrote in said

Lorzano v. Tabayag conformity therewith on a particular occasion, except:
A handwriting expert is not indispensable to prove that (a) In Criminal Cases:

the signature of Tabayag in the questioned deed of
sale was indeed a forgery. It is true that the opinion of (1) The character of the offended party may be
handwriting experts are not necessarily binding upon proved if it tends to establish in any reasonable degree
the court, the expert’s function being to place before the probability or improbability of the offense charged.
the court data upon which the court can form its own
opinion. Handwriting experts are usually helpful in the (2) The accused may prove his or her good
examination of forged documents because of the moral character[,] pertinent to the moral trait involved
technical procedure involved in analyzing them. But in the offense charged. However, the prosecution may
resort to these experts is not mandatory or not prove his or her bad moral character unless on
indispensable to the examination or the comparison of rebuttal.
handwriting. A finding of forgery does not depend
entirely on the testimonies of handwriting experts, (b) In Civil Cases:
because the judge must conduct an independent
examination of the questioned signature in order to Evidence of the moral character of a party in a
arrive at a reasonable conclusion as to its authenticity. civil case is admissible only when pertinent to the
issue of character involved in the case.
Dizon v. Tuazon
(c) In Criminal and Civil Cases:
The court is not bound by the findings of a
handwriting expert. Expert opinion evidence is to be Evidence of the good character of a witness is
considered or weighed by the court like any other not admissible until such character has been
testimony, in the light of its own general knowledge impeached.
and experience upon the subject of inquiry. The
probative force of the testimony of an expert does not In all cases in which evidence of character or a
lie in a mere statement of his theory or opinion, but trait of character of a person is admissible, proof may
rather in the aid that he can render to the courts in be made by testimony as to reputation or by testimony
showing the facts which serve as a basis for his in the form of an opinion. On cross-examination,
criterion and the reasons upon which the logic of his inquiry is allowable into relevant specific instances of
conclusion is founded. conduct.
In cases in which character or a trait of

Rule 130, Section 53. Opinion of ordinary witnesses.
character of a person is an essential element of a
– The opinion of a witness, for which proper basis is
charge, claim or defense, proof may also be made of
given, may be received in evidence regarding –
specific instances of that person’s conduct.
(a) [T]he identity of a person about whom he or she
has adequate knowledge; When is evidence of a person's character or trait of
character not admissible?
(b) A handwriting with which he or she has sufficient
familiarity; and Evidence of a person's character or a trait of character
is not admissible for the purpose of proving action in
(c) The mental sanity of a person with whom he or she conformity therewith on a particular occasion.
is sufficiently acquainted.
When is evidence of a person's character or trait of
The witness may also testify on his or her impressions character admissible in criminal cases?
of the emotion, behavior, condition or appearance of a
person. 1) The character of the offended party may be
proved if it tends to establish in any
reasonable degree the probability or
In any of the above instances, the opinion of an
improbability of the offense charged.
ordinary witness is admissible.
2) The accused may prove his or her good moral
8. Character evidence character, pertinent to the moral trait involved
in the offense charged. However, the
Rule 130, Section 54. Character evidence not prosecution may not prove his or her bad
generally admissible; exceptions. – Evidence of a moral character unless on rebuttal.
person’s character or a trait of character is not
admissible for the purpose of proving action in 3) Evidence of the good character of a witness is
not admissible until such character has been

impeached. Lorenzana v. Austria
When is evidence of a person's character or trait of In administrative cases, the complainant bears the
character admissible in civil cases? burden in proving the averments of his complaint by
substantial evidence. However, conjectures and
1) Evidence of the moral character of a party in a suppositions are not sufficient to prove accusations.
civil case is admissible only when pertinent to
the issue of character involved in the case. Homeowners Savings & Loan Bank v. Dailo
2) Evidence of the good character of a witness is The burden of proof that a debt was contracted lies
not admissible until such character has been with the creditor-plaintiff. He who asserts, not who
impeached. denies, must prove.
In case character or trait of character is Bognot v. RRI Lending

admissible, how is it proved?
He who pleads payment has the burden of proving it.
1) In all cases in which evidence of character or
a trait of character of a person is admissible, Test for determining where the burden of proof lies
proof may be made by testimony as to
reputation or by testimony in the form of an “Which party to an action or suit will fail if he
opinion. On cross-examination, inquiry is offers no evidence competent to show the facts
allowable into relevant specific instances of averred as basis for the relief he seeks to
conduct. obtain?”
2) In cases in which character or a trait of If the defendant has affirmative defenses, he has the
character of a person is an essential element burden of proving them. (Aznar Brothers Realty vs.
of a charge, claim or defense, proof may also Aying)
be made of specific instances of that person's
conduct. BURDEN OF EVIDENCE
F. Burden of proof and presumptions (Rule 131) Burden of evidence is the duty of a party to present
evidence sufficient to establish or rebut a fact in issue
Rule 131, Section 1. Burden of proof and burden of to establish a prima facie case. Burden of evidence
evidence. – Burden of proof is the duty of a party to may shift from one party to the other in the course
present evidence on the facts in issue necessary to of the proceedings, depending on the exigencies of
establish his or her claim or defense by the amount of the case (Section 1, Rule 131)
evidence required by law. Burden of proof never shifts.
People vs Galam [2019]
Burden of evidence is the duty of a party to present
evidence sufficient to establish or rebut a fact in issue People v. Villanueva ordains that the prosecution's
to establish a prima facie case. Burden of evidence may burden of proof does not shift to the defense but
shift from one party to the other in the course of the remains in the prosecution throughout the trial, except
proceedings, depending on the exigencies of the case. in case of self-defense. When the prosecution,
however, has succeeded in discharging the burden of
BURDEN OF PROOF proof by presenting evidence sufficient to convince
the Court of the truth of the allegations in the
Burden of proof is the duty of a party to present information or has established a prima facie case
evidence on the facts in issue necessary to establish against the accused, as in this case, the burden of
his or her claim or defense by the amount of evidence evidence shifts to the accused making it incumbent
required by law. Burden of proof never shifts. upon him or her to adduce evidence in order to meet
(Section 1, Rule 131) and nullify, if not to overthrow, that prima facie case.
NFF Industrial Corporation v. G& L Brokerage PRESUMPTION
In civil cases, it is a basic rule that the party making It is an assumption of fact resulting from the rule of
allegations has the burden of proving them by law which require such fact to be assumed from
preponderance of evidence. By preponderance of another fact or group of facts found or otherwise
evidence, it means that evidence adduced by one side established in an action. (Black Law Dictionary)
is, as a whole, superior to that of the other side.
It is an inference of the existence or nonexistence of a

fact which courts are permitted to draw from proof of representation which is considered conclusive
other facts. (In the matter of the Intestate of Delgado upon the establishment and it cannot deny or
and Rustia) disprove it as against a cardholder who relied
on the representation (Mandarin Villa vs. CA)
What is the effect of presumption?
3) Tenant not permitted to deny title of
A party in whose favor the legal presumption exists Landlord — A priest put by Catholic church in
may rely on and invoke such legal presumption to possession of a church building, is estopped
establish a fact in issue. One need not introduce from alleging ownership at the time he took
evidence to prove the fact for a presumption is prima possession either in himself or in third person
facie proof of the fact presumed. (Diesel Construction (Pascual vs. Angeles)
vs. UPSI Property)
Estoppel applies even though the lessor had
Kinds of presumption of law no title at the time of the relations of lessor
and lessee was created and may be asserted
1. Conclusive presumption — A presumption not only by the original lessor but also by
which becomes irrebuttable upon the those who succeeded to his title (Geminiano
presentation of the evidence and any vs. CA)
evidence tending to rebut the presumption is
not admissible; inferences which the law DISPUTABLE PRESUMPTIONS
makes so peremptory that it will not allow
them to be overturned by any contrary proof It is sufficient in itself to maintain the proposition
however strong. affirmed unless refuted by the adverse party against
whom the inference is invoked. This presumption
2. Disputable presumption — a presumption subsists until it is overcome by evidence or some
which may be contradicted or overcome by stronger presumption.
other evidence.
Effect of disputable presumption
CONCLUSIVE PRESUMPTIONS
The effect of a presumption upon a burden of proof is
Rule 131, Section 2. Conclusive presumptions. – The to create the need of presenting evidence to
following are instances of conclusive presumptions: overcome the prima facie case created by the
presumption. If no contrary proof is offered, the
(a) Whenever a party has, by his or her own presumption will prevail. (Diaz vs. People, 2013)
declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing Disputable Presumption Under the Rules
true, and to act upon such belief, he or she cannot, in
any litigation arising out of such declaration, act or Best example: Rule 131, Section 3 (m). That official
omission, be permitted to falsify it; and duty has been regularly performed.
(b) The tenant is not permitted to deny the title “To begin with, the presumption of regularity in the
of his or her landlord at the time of the commencement performance of official duties should not even be
of the relation of landlord and tenant between them. relied upon because there was concrete and
undeniable evidence of lapses committed by the
The conclusive presumptions under Sec. 2 are based arresting officers in their compliance with the
on the doctrine of estoppels. Under this doctrine, the affirmative safeguards. The presumption has been
person making the representation cannot claim benefit erected only for convenience, to excuse the State from
from the wrong he himself committed. (Phil. Pryce the duty to adduce proof that official duties have been
Assurance Corp. v. CA) regularly performed by its agents, because of the
physically impossible or time consuming task of
Example of estoppel detailing all the steps establishing the regular
performance of official duties. Moreover, it would be
1) Persons who assume to be a corporation unconstitutional to place a higher value in the
without legal authority to act as such shall be presumption of regularity in the performance of official
considered a corporation by estoppel and duties — a mere tool of evidence — than in the more
shall be liable as general partners (Sec. 21, substantial presumption of innocence favoring the
RCP) petitioner as an accused — a right enshrined no less
than in the Bill of Rights. (Casona vs. People, 2017)
2) A logo posted within an establishment that a
certain credit card is accepted therein is a The presumption of regularity in the performance of
official functions is applicable only when there is no

deviation from the regular performance of duty is founded upon weightier considerations of policy
(People vs. Casabuena, 2014). It is rebuttable by shall apply. If considerations of policy are of equal
affirmative evidence of irregularity or of failure to weight, neither presumption applies.
perform a duty (People vs. Alejandro, 2014)
What is the evidentiary obligation of a party
Disputable Presumption Based on Jurisprudence against whom the presumption is directed?
In the absence of satisfactory explanation, one found The party against whom it is directed has the burden
in possession of and used a forged document is the of going forward with evidence to rebut the
forger and therefore guilty of falsification. If a person presumption.
had in his possession a falsified document and made
use of it, taking advantage of it and profiting from it, Note: You have the burden of evidence, not the
the clear presumption is that he is the material author burden of proof.
of the falsification (Maliwat vs. CA)
Rule 131, Section 6. Presumption against an accused
Some Significant Disputable Presumptions
in criminal cases. – If a presumed fact that establishes
guilt, is an element of the offense charged, or negates a
a) That a person is innocent of crime or wrong;
defense, the existence of the basic fact must be proved
b) That an unlawful act was done with an beyond reasonable doubt and the presumed fact
unlawful intent; follows from the basic fact beyond reasonable doubt.
c) That a person intends the ordinary The provision simply means that if the presumed fact
consequences of his or her voluntary act; is an element of crime, the fact from which the
presumed fact was derived and the intimate
d) That a person takes ordinary care of his or her connection between the two must be proved beyond
concerns; reasonable doubt.
e) That evidence willfully suppressed would be
Example 1: BP 22
adverse if produced;
f) That money paid by one to another was due ■ One of the elements is — The knowledge of
to the latter; the maker, drawer, or issuer that at the time of
issue he does not have sufficient funds in or
g) That a thing delivered by one to another credit with the drawee bank for the payment
belonged to the latter; of such check in full upon its presentment.
h) That an obligation delivered up to the debtor ■ What is evidence of knowledge of

has been paid; insufficiency of funds? The making, drawing
and issuance of a check payment of which is
i) That prior rents or installments had been paid refused by the drawee because of insufficient
when a receipt for the later one is produced; funds in or credit with such bank, when
presented within ninety (90) days from the
j) That a person acting in a public office was date of the check, shall be prima facie
regularly appointed or elected to it; evidence of knowledge of such insufficiency
of funds or credit unless such maker or
k) That official duty has been regularly
drawer pays the holder thereof the amount
performed;
due thereon, or makes arrangements for
payment in full by the drawee of such check
l) That a court, or judge acting as such, whether
within (5) banking days after receiving notice
in the Philippines or elsewhere, was acting in
that such check has not been paid by the
the lawful exercise of jurisdiction.
drawee.
Rule 131, Section 5. Presumptions in civil actions ■ Therefore, under Section 6, Rule 130, the
and proceedings. – In all civil actions and prosecution must prove beyond reasonable
proceedings not otherwise provided for by the law or doubt the fact that the accused made, drew
these Rules, a presumption imposes on the party and issued of a check payment of which is
against whom it is directed the burden of going refused by the drawee because of insufficient
forward with evidence to rebut or meet the funds in or credit with such bank, when
presumption. presented within ninety (90) days from the
date of the check and the accused did not
If presumptions are inconsistent, the presumption that pay the same or make arrangements for

payment in full by the drawee of such check presumed. But a witness must answer to the fact of his
within (5) banking days after receiving notice or her previous final conviction for an offense.
that such check has not been paid by the
drawee. Foremost among the rights of a witness is the right not
to give an answer that will subject him to a penalty
Example 2: Estafa, through misappropriation under unless otherwise provided by law. This gives meaning
Article 315 par. 1(b). to the right of a person against self-incrimination.
■ The failure to return upon demand the It is established that the privilege against
properties which one has the duty to return is self-incrimination must be invoked at the proper time,
tantamount to appropriating the same for his and the proper time to invoke it is when a question
own personal use. calling for a criminating answer is propounded. A
person who has been summoned to testify cannot
■ The fact that the accused failed to return the decline to appear, nor can he decline to be sworn as a
property upon demand must be proved by witness and no claim of privilege can be made until a
proof beyond reasonable doubt because it is question calling for a criminating answer is asked; at
the basis fact from which the fact presumed is that time, and generally speaking, at that time only,
derived. the claim of privilege may properly be imposed.
(Bagadiong v. Gonzales)
G. Presentation of evidence (Rule 132)
1. Examination of witnesses Examination of child witness
OPEN COURT EXAMINATIONS The court may order that the testimony of the child be
taken by live-link television if there is a substantial
Sec. 1 of Rule 132 provides for the examination of the likelihood that the child would suffer trauma from
witness in open court, and unless the question calls testifying in the presence of the accused, his counsel
for a different mode, the answer of the witness shall or the prosecutor as the case may be. The trauma
be given orally. This method allows the court the should be of a kind which would impair the
opportunity to observe the demeanor of the witness completeness or truthfulness of the testimony of the
and also allows the adverse party to cross-examine child.
the witness.
KINDS OF EXAMINATION
The witness must take either an oath or an affirmation
but the option to do so is given to the witness and not
to the court. Rule 132, Section 4. Order in the examination of an
individual witness. – The order in which an
RIGHTS AND OBLIGATIONS OF WITNESS individual witness may be examined is as follows:
Rule 132, Section 3. Rights and obligations of a (a) Direct examination by the proponent;
witness. – A witness must answer questions, although
his or her answer may tend to establish a claim against (b) Cross-examination by the opponent;
him or her. However, it is the right of a witness:
(c) Re-direct examination by the proponent;
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting (d) Re-cross[-]examination by the opponent.
demeanor;
1. DIRECT EXAMINATION
(2) Not to be detained longer than the interests of
justice require; Direct examination is the examination-in-chief of a
witness by the party presenting him or her on the facts
(3) Not to be examined except only as to matters relevant to the issue. (Sec. 5, Rule 132)
pertinent to the issue;
This examination is subject to the Judicial Affidavit
(4) Not to give an answer which will tend to subject Rule.
him or her to a penalty for an offense unless
otherwise provided by law; or 2. CROSS-EXAMINATION
(5) Not to give an answer which will tend to degrade Upon the termination of the direct examination, the
his or her reputation, unless it be to the very fact at witness may be cross-examined by the adverse party
issue or to a fact from which the fact in issue would be on any relevant matter, with sufficient fullness and

freedom to test his or her accuracy and truthfulness discretion.

and freedom from interest or bias, or the reverse, and
to elicit all important facts bearing upon the issue. 4. RE-CROSS-EXAMINATION
(Sec. 6, Rule 132)
Upon the conclusion of the re-direct examination, the
Q: Supposing during cross-examination, you adverse party may re-cross-examine the witness on
questioned the witness on matters which are not matters stated in his or her re-direct examination, and
stated in the direct examination. The other party also on such other matters as may be allowed by the
objected. Would you sustain the objection? court in its discretion. (Sec. 8, Rule 132)
➔ A: No. Under the old rules, the The matters that should be threshed out are the
cross-examination must be related to the direct matters that came out during re-direct. But of course,
examination. Ngayon, on any relevant matter na, the court has discretion to allow questions even
whether such was mentioned or not in the though they are not related to the redirect.
cross-examination.
MAY A WITNESS BE RECALLED?
Effect of death or absence of a witness after the
direct examination by the proponent After the examination of a witness by both sides has
been concluded, the witness cannot be recalled
1) If the witness was not cross-examined without leave of court. Recalling a witness is a matter
because of causes attributable to the cross of judicial discretion and it shall be guided by the
examining party and the witness had always interests of justice.
made himself available for cross examination,
the direct testimony of the witness shall If you terminated the testimony of a witness, then you
remain on record and cannot be stricken off cannot recall him at will. You have to ask permission
because the cross-examiner is deemed to from the court.
have waived his right to cross-examine. (Dela
Paz v. IAC, 1987) LEADING AND MISLEADING QUESTIONS
2) If the witness was partially cross-examined

LEADING QUESTIONS
but died before the completion of his
cross-examination, his testimony on direct
Leading question is one which suggests to the witness
may be stricken out but only with respect to
the answer which the examining party desires.
the testimony not covered by the
cross-examination. (People v. Señeris, 1980)
Leading questions are not appropriate in direct and
re-direct examinations particularly when the witness is
3) The absence of a witness is not sufficient to
asked to testify about a major element of the cause of
warrant the striking out of his testimony for
action or defense.
failure to appear for further cross-examination
where the witness has already been
Leading questions are allowed in cross and re-cross
sufficiently cross-examined, and the matter on
examinations.
which cross examination is sought is not in
controversy.
Leading questions are allowed in a direct
examination in the following instances:
3. RE-DIRECT EXAMINATION
1) On preliminary matters;
After the cross-examination of the witness has been
concluded, he or she may be re-examined by the
2) When there is difficulty in getting direct and
party calling him or her to explain or supplement his or
intelligible answers from a witness who is
her answers given during the cross-examination. On
ignorant, a child of tender years, is of feeble
re-direct examination, questions on matters not dealt
mind, or a deaf-mute;
with during the cross-examination may be allowed by
the court in its discretion. (Sec. 7, Rule 132)
3) When the witness is an unwilling or hostile
witness; or
On re-direct examination, may questions matters
not dealt with during the cross examination be
4) When the witness is an adverse party or an
allowed?
officer, director, or managing agent of a public
or private corporation[,] or of a partnership or
YES. Questions on matters not dealt with in the
association which is an adverse party. (Sec.
cross-examination may be allowed by the court in its

10, Rule 132) acts, except that it may be shown by the examination
of the witness, or record of the judgment, that he or
Examples of leading question in a direct she has been convicted of an offense.
examination:
Note: You do not impeach a witness by verified
Example 1: The case is a collection case. A witness is complaint.
called to testify on the fact of payment.
HOW TO IMPEACH A WITNESS
“While the plaintiff and the defendant were engaged
in a conversation on the date and time you 1) By contradictory evidence
mentioned, did you see the defendant deliver
P50,000 to the plaintiff?” ■ Example: Your witness testified that
he was at the commission of the
➔ The question is objectionable on the ground crime. He testified as an eye witness.
that it is leading. Here, the examiner obviously You can impeach his testimony by
wants the witness to testify that money was presenting evidence that is impossible
delivered by the defendant to the plaintiff in for him to witness the commission of
his presence. The questions could have been the crime because the witness was
properly framed in this manner: “What have with you when it happened.
you observed, in any, while the plaintiff and
the defendant were engaged in a 2) By evidence that his general reputation for
conversation?” truth, honesty or integrity is bad
Example 2: The situation is a robbery case. The ■ Example: Mr. W is called by the
defense calls the accused to the witness stand. prosecution to testify that it was
indeed the accused who picked the
“While you were in the park with your children, the pocket of the victim when the latter
police officers arrived to arrest you, is that true?” accidentally tripped on the sidewalk.
The defense later presents Mr. D, a
➔ The question is leading. It suggests the next neighbor of Mr. W for thirty (30) years,
event in which the witness should testify. The who testifies that Mr. W has a
questions could have been properly framed in reputation in the community for telling
this manner: “What happened, if any, while lies. The testimony of Mr. D is an
you and your children were in the park?” impeaching testimony to discredit Mr.
W. Mr. D, who has testified on the
MISLEADING QUESTIONS reputation of Mr. W, may be
cross-examined like any witness. He
A misleading question is one which assumes as true a may be asked on cross-examination
fact not yet testified to by the witness, or contrary to about the extent of his familiarity with
that which he or she has previously stated. It is not the witness who is being impeached,
allowed in any type of examination. (Sec.10, Rule 132) together with any prejudice and
biases he may have against the
“You testified that you and the accused were in a car witness or his stake and interest in the
bound for Baguio City. How fast were you driving?” case.
➔ This question is objectionable as misleading 3) By evidence that he has made at other times
where there was no previous testimony from statements inconsistent with his present
the witness that he was driving the car. The testimony.
question assumes a fact not yet in evidence.
■ Example: The witness has a
IMPEACHMENT OF A WITNESS sinumpaang salaysay, and what he
testified in court is different from what
he stated in the sinumpaang salaysay.
Rule 132, Section 11. Impeachment of adverse party’s So, you can impeach him by the
witness. – A witness may be impeached by the party sinumpaang salaysay that he
against whom he or she was called, by contradictory previously executed and confront him
evidence, by evidence that his or her general with the inconsistency of his present
reputation for truth, honesty, or integrity is bad, or by testimony in court and what he has
evidence that he or she has made at other times stated in the sinumpaang salaysay.
statements inconsistent with his or her present
testimony, but not by evidence of particular wrongful ■ Remember that the reading of the

prior inconsistent statement must be the adverse party, but such cross-examination must
verbatim, not a mere summary. only be on the subject matter of his or her
examination-in-chief.
Take Note: A witness cannot be impeached by
evidence of bad character, only of bad reputation. EXCLUSION AND SEPARATION OF WITNESSES
MAY A WITNESS BE IMPEACHED BY EVIDENCE The court, motu proprio or upon motion, shall order
OF CONVICTION OF A CRIME? witnesses excluded so that they cannot hear the
testimony of other witnesses.
Under the New Rule, a witness my now be impeached
evidence that he or she has been convicted by final This rule does not authorize exclusion of:
judgment of a crime shall be admitted if:
a) a party who is a natural person,
a) the crime was punishable by a penalty in
excess of one year; or b) a duly designated representative of a juridical
entity which is a party to the case,
b) the crime involved moral turpitude, regardless
of the penalty. c) a person whose presence is essential to the
presentation of the party’s cause, or
However, evidence of a conviction is not admissible if
the conviction has been the subject of an amnesty or d) a person authorized by a statute to be
annulment of the conviction. (Sec. 12, Rule 132) present.
MAY A PARTY IMPEACH HIS OWN WITNESS? The court may also cause witnesses to be kept
separate and to be prevented from conversing with
GR: No, the party presenting the witness is not one another, directly or through intermediaries, until all
allowed to impeach his or her credibility. shall have been examined. (Sec. 15, Rule 132)
XPNs: 2. Authentication and proof of documents
1. Hostile and unwilling witness (Sec. 10(d), rule Why is authentication important?
132)
Authentication is very important in the presentation of
■ A witness may be considered as evidence. Object and documentary evidence must be
unwilling or hostile only if so declared authenticated. It is the preliminary step in showing the
by the court upon adequate showing admissibility of an evidence.
of his or her adverse interest,
unjustified reluctance to testify, or his Object and documentary evidence must be
or her having misled the party into authenticated by whom?
calling him or her to the witness
stand. (Sec. 13, Rule 132) By a witness because the object evidence and the
documentary evidence cannot speak for themselves.
■ If the answer of your witness is There must be a sponsor to authenticate these
adverse to you, then you have to ask documents.
the court to declare the witness
turned hostile. If that is the case, then Example: a weapon is found in the crime scene. To be
you can already conduct admissible in evidence, it must be authenticated. This
cross-examination, or ask leading means that it must be shown to the satisfaction of the
questions. (Judge Gito) court that the weapon is the very same weapon found
in the crime scene. To convince the court, the
2. Adverse party (Sec. 10(e), rule 132) proponent of the evidence must call someone to
identify the weapon and affirm: "This is the weapon I
How may a hostile or unwilling witness or an found in the crime scene." This someone could be the
adverse party be impeached? police investigator or someone else who handled the
evidence. When he affirms it is the same weapon, then
The unwilling or hostile witness so declared, or the the evidence is authenticated.
witness who is an adverse party, may be impeached
by the party presenting him or her in all respects as if Kinds of documents
he or she had been called by the adverse party,
except by evidence of his or her bad character. He or 1. Public document — does not require
she may also be impeached and cross-examined by authentication to be admissible. It enjoys the

presumption of regularity. You do not need to and authenticity.

have a witness to identify the signature in a
public document; due execution and Any other private document need only be identified as
authenticity are presumed in a public that which it is claimed to be. (Sec. 20, Rule 132)
document.
When authentication of private document required
2. Private document — requires authentication to
be admissible. The manner of authenticating a document, required by
Sec. 20 of Rule 132, applies only when a private
PUBLIC DOCUMENT document is offered as authentic as when it is offered
to prove that the document was truly executed by the
Public documents are: person purported to have made the same.
1) The written official acts, or records of the Where the document is offered in evidence not as
sovereign authority, official bodies and authentic, its genuineness and due execution need not
tribunals, and public officers, whether of the be proven as when the only purpose is for the offeror
Philippines, or of a foreign country; to show that a certain piece of document exists. When
the witness says, “I found these documents in the
2) Documents acknowledged before a notary drawer of my table”, the document only needs
public except last wills and testaments; identification and not authentication. But when the
witness wants to show that the deed was indeed
3) Documents that are considered public executed by his brother, the process of authentication
documents under treaties and conventions required by Sec. 20 must be complied with.
which are in force between the Philippines
and the country of source; and When is authentication of private document not
required?
■ When you offer a document coming
from abroad, you have to double
Where a private document is more than thirty (30)
authenticate it (kaya may red ribbon).
years old, is produced from a custody in which it
It will not be admitted as evidence
would naturally be found if genuine, and is
here in the Philippines if it’s not
unblemished by any alterations or circumstances of
doubly authenticated. Now, we do
suspicion, no other evidence of its authenticity need
away with double authentication.
be given. (Sec. 21, Rule 132)
When a foreign document is
apostillized, meaning it came from a
Even if it is a private document, but it is what is called
country that is also a signatory to the
an “aged document” or “ancient document,” a
Apostille Convention, then said
document which is thirty years old, then you also do
document will be admitted here as a
away with authentication. That is on the condition that
public document.
it be produced from a custody in which it would
4) Public records, kept in the Philippines, of naturally be found if genuine, and in unblemished by
any alterations or circumstances of suspicion.
private documents required by law to be
entered therein.
Other instances when requirement of authentication of
★ All other writings are private. private document is excused:
1) When the genuineness and authenticity of an

HOW DO YOU AUTHENTICATE PRIVATE
actionable document have not been
DOCUMENTS?
specifically denied under oath by the adverse
party;
Before any private document offered as authentic is
received in evidence, its due execution and 2) When the genuineness and authenticity of the
authenticity must be proved by any of the following document have been admitted under Sec. 4,
means: Rule 129
a) By anyone who saw the document executed 3) When the document is not being offered as
or written; authentic.
b) By evidence of the genuineness of the
HOW IS GENUINENESS OF HANDWRITING
signature or handwriting of the maker[;] or
PROVED?
c) By other evidence showing its due execution
Rule 132, Section 22. How genuineness of

handwriting proved. – The handwriting of a person from the Philippines.

may be proved by any witness who believes it to be
the handwriting of such person because he or she has For documents originating from a foreign country
seen the person write, or has seen writing purporting which is not a contracting party to a treaty or
to be his or hers upon which the witness has acted or convention referred to in the next preceding sentence,
been charged, and has thus acquired knowledge of the the certificate may be made by a secretary of the
handwriting of such person. Evidence respecting the embassy or legation, consul general, consul,
handwriting may also be given by a comparison, made vice-consul, or consular agent or by any officer in the
by the witness or the court, with writings admitted or foreign service of the Philippines stationed in the
treated as genuine by the party against whom the foreign country in which the record is kept, and
evidence is offered, or proved to be genuine to the authenticated by the seal of his [or her] office.
satisfaction of the judge.
A document that is accompanied by a certificate or its
Note that this rule does not require expert testimony to equivalent may be presented in evidence without
prove the handwriting of a person. further proof, the certificate or its equivalent being
prima facie evidence of the due execution and
The genuineness of a handwriting may be proved: genuineness of the document involved. The certificate
shall not be required when a treaty or convention
1) by any witness who believes it to be the between a foreign country and the Philippines has
handwriting of such person because: abolished the requirement, or has exempted the
document itself from this formality.
a) he has seen the person write; or
The new formulation of Section 34 incorporates the
b) he has seen writing purporting to be efficacy of the Apostille Convention. Thus, when the
his upon which the witness has acted record is kept in a foreign country, which is a party to
or been charged; Apostille Convention, the certificate or its equivalent
shall be in the form prescribed by such treaty or
2) by a comparison, made by the witness or the convention subject to reciprocity granted to public
court, with writings admitted or treated as documents originating from the Philippines.
genuine by the party, against whom the
evidence is offered, or proved to be genuine Thus, if a document is Apostillized, that is considered
to the satisfaction of the judge. proof of such document and prima facie proof of its
authenticity and due execution.
Section 22, Rule 132 of the Rules of Court explicitly
authorizes the court, by itself, to make a comparison How do you prove documents originating in a
of the disputed handwriting with writings admitted or country outside the Philippines which is not a party
treated as genuine by the party against whom the to the convention?
evidence is offered, or proved to be genuine to the
satisfaction of the judge. (Almeda v. Heirs of Almeda) It is proved by the certificate made by a secretary of
the embassy or legation, consul general, consul,
HOW TO PROVE AN OFFICIAL RECORD vice-consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
Rule 132, Section 24. Proof of official record. – The foreign country in which the record is kept, and
record of public documents referred to in paragraph authenticated by the seal of his or her office.
(a) of Section 19, when admissible for any purpose,
may be evidenced by an official publication thereof or Q: A document came from North Korea, a country not
by a copy attested by the officer having the legal a party to the Apostille Convention, how do you prove
custody of the record, or by his or her deputy, and the documents coming from here?
accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the ➔ A: It is proved by a certificate of a secretary of an
custody. embassy or legation, consul general, consul,
vice-consul, or consular agent, or by any officer
If the office in which the record is kept is in a foreign in the foreign service of the Philippines
country, which is a contracting party to a treaty or stationed in the foreign country in which the
convention to which the Philippines is also a party, or record is kept, and authenticated by the seal of
considered a public document under such treaty or his or her office.
convention pursuant to paragraph (c) of Section 19
hereof, the certificate or its equivalent shall be in the Orion Savings Bank vs. Suzuki, 2014
form prescribed by such treaty or convention subject to
reciprocity granted to public documents originating In this case, the petitioner is trying to prove the

existence of South Korean Law on conjugal ownership it as evidence, even without formal offer and
of property. In doing so, he presented a “Certificate admission, may draw unwarranted consequences.
from the Embassy of Korea” as to the existence of that Opposing parties will be deprived of their chance to
law. examine the document and to object to its
admissibility. On the other hand, the appellate court
SC said it is not enough. This certification, does not will have difficulty reviewing documents not previously
qualify as sufficient proof of the conjugal nature of the scrutinized by the court below. (Gotesco Properties v.
property for there is no showing that it was properly Solidbank Corp, 2017)
authenticated by the seal of his office, as required
under Section 24 of Rule 132. When evidence was not formally offered, the failure to
object to the omission and the cross-examination of
PROOF OF NOTARIZED DOCUMENTS the witness by the adverse party, taken together,
constitute a waiver of the defect. (People v. Libnao)
Every instrument duly acknowledged or proved and
certified as provided by law, may be presented in May evidence not formally offered be considered?
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the Yes. If the evidence was duly identified by the
execution of the instrument or document involved. testimony and duly recorded and the same must have
(Sec. 30, Rule 132) been incorporated in the records of the case. (People
v. Mate)
The above rule presupposes that the document was
notarized by a person duly authorized to perform Marking of document is not a formal offer
notarial functions. Without such authority, the private
document does not become a public document. It A document, or any article for that matter, is not
also presupposes that the document was properly evidence when it is simply marked for identification; it
notarized in the presence of the notary public. Thus, must be formally offered, and the opposing counsel
where the parties signed the document in the USA, given an opportunity to object to it or cross-examine
the witness in Makati City and the notarization took the witness called upon to prove or identify it.
place in Cavite City, the document was improperly (Candido v. CA)
notarized.
Judge Gito: If your evidence is an object evidence or
NOTE: the improper notarization stripped the a documentary evidence, tandaan na ‘yong marking
document of its public character and reduced it to a ay hindi offer. Pinamamarkahan mo lang ‘yong xerox
private document. copy. “Objection your Honor. Original document rule.”
The objection should be overruled because it is
A notarized document has in its favor the presumption premature; it is only being marked and not being
of regularity, and it carries the evidentiary weight offered.
conferred upon it with respect to its due execution. It
is admissible in evidence without further proof of its When formal offer of evidence is not required
authenticity and is entitled to full faith and credit upon
its face. The burden of proof to overcome the 1) In summary proceedings
presumption of due execution of a notarial document
lies on the party contesting the same. (Almeda v. Heirs 2) Documents judicially admitted or taken
of Almeda) judicial notice of
A birth certificate is a public document but a 3) Documents, affidavits and depositions used in
baptismal certificate is NOT a public document. a summary judgment
3. Offer and objection 4) Documents or affidavits and depositions used

in deciding quasi judicial or administrative
(Bantolino vs. Coca-Cola)
Rule 132, Section 34. Offer of evidence. – The court
shall consider no evidence which has not been
5) Lost objects, previously marked, identified,
formally offered. The purpose for which the evidence
described in the record and testified to by the
is offered must be specified.
witnesses who have been subjects of
cross-examination in respect to said objects
A formal offer is necessary, since judges are required (Tabuena vs. CA)
to base their findings of fact and their judgment solely
and strictly upon the evidence offered by the parties at WHEN TO MAKE AN OFFER
the trial. To allow parties to attach any document to
their pleadings and then expect the court to consider

All evidence must be offered orally. the ground or grounds relied upon. (Sec. 38, Rule 132)
The offer of the testimony of a witness in evidence Judge Gito: Dapat si Judge e magrule na right there
must be made at the time the witness is called to and then, hindi pwedeng nag-object, recess, “Puta,
testify. nag-aaral si judge. Hinahanap kung anong ground for
objection.” So, rule immediately after objecting.
The offer of documentary and object evidence shall be
made after the presentation of a party’s testimonial Do judges know all the ground for objection? Hindi
evidence. naman lahat but a judge needs to rule immediately,
whether it is correct or not. Lakasan mo na lang ang
OBJECTION boses mo kung hindi mo alam. “Objection, your
Honor.” “Sustained!” Edi wala na makakareklamo.
Pero you are not sure if the Judge's ruling is correct or
Objection to offer of evidence must be made orally
not.
immediately after the offer is made.
STRIKING OUT OF AN ANSWER
Objection to the testimony of a witness for lack of a
formal offer must be made as soon as the witness
Should a witness answer the question before the
begins to testify. Objection to a question propounded
adverse party had the opportunity to voice fully its
in the course of the oral examination of a witness must
objection to the same, or where a question is not
be made as soon as the grounds therefor become
objectionable, but the answer is not responsive, or
reasonably apparent.
where a witness testifies without a question being
posed or testifies beyond limits set by the court, or
The grounds for the objections must be specified.
when the witness does a narration instead of
(Sec. 36, Rule 132)
answering the question, and such objection is found
to be meritorious, the court shall sustain the objection
Continuing Objection
and order such answer, testimony or narration to be
stricken off the record.
When it becomes reasonably apparent in the course
of the examination of a witness that the questions
On proper motion, the court may also order the
being propounded are of the same class as those to
striking out of answers which are incompetent,
which objection has been made, whether such
irrelevant, or otherwise improper. (Sec. 39, Rule 132)
objection was sustained or overruled, it shall not be
necessary to repeat the objection, it being sufficient
Ground for striking out of an answer
for the adverse party to record his continuing
objection to such class of questions. (Sec. 37, Rule
1) When the answer is premature
132)
2) When the answer of the witness is irrelevant,
Judge Gito: Kapag ang line of questioning is incompetent or improper
objectionable, hindi ‘yong every question e object ka
ng object, maiirita si Judge. So, magmanifest ka na 3) When the answer is unresponsive
lang. “If this is the line of questioning of the opposing
counsel, your Honor, may we respectfully register our 4) When the witness becomes unavailable for
continuing objection to such line of questioning?” cross examination
Okay, the continuing objection is noted.
5) When the testimony is allowed conditionally
Ruling but the condition was not fulfilled
The ruling of the court must be given immediately after H. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
the objection is made, unless the court desires to take
a reasonable time to inform itself on the question Submission of Judicial Affidavits and Exhibits in
presented; but the ruling shall always be made during lieu of direct testimonies (Section 2)
the trial and at such time as will give the party against
whom it is made an opportunity to meet the situation Under the JAR, the parties shall file the judicial
presented by the ruling. affidavits of their witnesses with the court and serve
the same on the adverse party, personally or by
The reason for sustaining or overruling an objection licensed courier service, not later than five days before
need not be stated. However, if the objection is based pre-trial or preliminary conference or the scheduled
on two [(2)] or more grounds, a ruling sustaining the hearing with respect to motions. The judicial affidavits
objection on one [(1)] or some of them must specify of their witnesses shall take the place of the
witnesses' direct testimonies; and the parties'

documentary or object evidence, if any, shall be Application of rule to criminal actions (Section 9)
attached to the judicial affidavits.
In criminal cases, the JAR will only apply when:
Contents of Judicial Affidavit (Section 3)
a) the maximum of the imposable penalty does
The judicial affidavit will allege, among others: not exceed six years;
a) the name, age, address, and occupation of b) the accused agrees to the use of judicial
the witness; affidavits, irrespective of the penalty involved;
or
b) the name and address of the lawyer who
supervised the examination of the witness as c) with respect to the civil aspect of criminal
well as the place of examination; actions.
c) a statement that the witness is answering the Effect of non-compliance with the Judicial Affidavit
questions asked of him, fully conscious that Rule (Section 10)
he does so under oath, and that he may face
criminal liability for false testimony or perjury if A party who fails to submit the required judicial
he were to violate this; and affidavits and exhibits on time shall be deemed to
have waived their submission. The court may,
d) the questions asked of the witness and his however, allow only once the late submission of the
corresponding answers, consecutively same provided, the delay is for a valid reason, would
numbered. not unduly prejudice the opposing party, and the
defaulting party pays a fine of not less than P1,000.00
Sworn attestation of the lawyer (Section 4) nor more than P5,000.00, at the discretion of the
court.
The judicial affidavit shall contain a sworn attestation
at the end, executed by the lawyer who supervised the The court shall not consider the affidavit of any
examination of the witness that says: witness who fails to appear at the scheduled hearing
of the case as required. Counsel who fails to appear
1) he faithfully recorded or caused to be without valid cause despite notice shall be deemed to
recorded the questions he asked and the have waived his client’s right to confront by
corresponding answers that the witness gave; cross-examination the witnesses there present.
and
The court shall not admit as evidence judicial
2) Neither he nor any other person then present affidavits that do not conform to the content
or assisting him or her coached the witness requirements of Section 3 and the attestation
regarding the latter's answers. requirement of Section 4 above. The court may,
however, allow only once the subsequent submission
A false attestation shall subject the lawyer mentioned of the compliant replacement affidavits before the
to disciplinary action, including disbarment. hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party
Scope of JAR (Section 1) and provided further, that public or private counsel
responsible for their preparation and submission pays
The JAR will apply to all actions, proceedings, and a fine of not less than Pl,000.00 nor more than
incidents requiring the reception of evidence before: P5,000.00, at the discretion of the court.
a) First Level Courts (Metropolitan Trial Courts I. Weight and sufficiency of evidence (Rule 133)
and Municipal Trial Courts), but shall not apply
to small claims cases under A.M. 08-8-7-SC; Rule 133, Section 1. Preponderance of evidence,
how determined. – In civil cases, the party having the
b) Second Level Courts (Regional Trial Courts); burden of proof must establish his or her case by a
preponderance of evidence. In determining where the
c) Sandiganbayan, Court of Tax Appeals, and
preponderance or superior weight of evidence on the
Court of Appeals; and
issues involved lies, the court may consider all the
facts and circumstances of the case, the witnesses’
d) quasi-judicial bodies, or investigating offices.
manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which they
In simpler words, the JAR will apply to all civil and
are testifying, the nature of the facts to which they
administrative cases.
testify, the probability or improbability of their
testimony, their interest or want of interest, and also

their personal credibility so far as the same may adequate to justify a conclusion.
legitimately appear upon the trial. The court may also
consider the number of witnesses, though the THE QUANTUM OF PROOF IN ADMINISTRATIVE
preponderance is not necessarily with the greater CASES IS SUBSTANTIAL EVIDENCE
number.
Substantial evidence means such relevant evidence
THE QUANTUM OF EVIDENCE REQUIRED IN CIVIL as a reasonable mind might accept as adequate to
CASES IS PREPONDERANCE OF EVIDENCE support a conclusion (Ombudsman v. Torres)
“Preponderance of evidence" is the weight, credit, Cases which requires substantial evidence
and value of the aggregate evidence on either side
and is usually considered to be synonymous with the 1. Administrative or quasi-judicial proceedings
term greater weight of the evidence or greater weight 2. Labor cases
of the credible evidence. Preponderance of evidence 3. Agrarian cases
is a phrase which, in the last analysis, means 4. Petition for writ of amparo
probability of the truth. It is evidence which is more
convincing to the court as worthy of belief than that Will the acquittal in an administrative case result in
which is offered in opposition thereto (Encinas v. the dismissal of the criminal case?
National Bookstore, Inc.)
No. It will not follow. Administrative and criminal
Preponderance of evidence means that the evidence proceedings are two different proceedings. They
adduced by one side is, as a whole, superior to or has involve different procedures. Thus, the prosecution is
greater weight than that of the other; evidence which not precluded from adducing evidence to discharge
is more convincing to the court as worthy of belief that the burden of proof required in criminal cases.
that which is offered in opposition thereto. (Paredes vs. CA)
Rule 133, Section 2. Proof beyond reasonable doubt. CLEAR AND CONVINCING EVIDENCE
– In a criminal case, the accused is entitled to an
acquittal, unless his or her guilt is shown beyond It is clear and convincing if it produces in the mind of
reasonable doubt. Proof beyond reasonable doubt does the trier of fact a firm belief or conviction as to the
not mean such a degree of proof as, excluding allegation sought to be established. It is intermediate,
possibility of error, produces absolute certainty. Moral being more than preponderance of evidence, but not
certainty only is required, or that degree of proof to the extent of such certainty as is required beyond
which produces conviction in an unprejudiced mind. reasonable doubt in criminal cases.
Instances where clear and convincing evidence is

THE QUANTUM OF EVIDENCE IN CRIMINAL
required
CASES IS PROOF BEYOND REASONABLE DOUBT
1) To prove justifying circumstance (People vs.
Proof beyond reasonable doubt does not connote
Abina, 2018).
absolute certainty. It means the degree of proof which
produces moral certainty in an unprejudiced mind of 2) To prove bad faith and fraud (Aliling v.
the culpability of the accused. Such proof should Feliciano, April 25, 2012).
convince and satisfy the reason and conscience of
those who are to act upon it that the accused is in fact 3) To pierce the veil of corporate fiction (Manila
guilty (Ng vs. People) Hotel vs. NLRC, 2000).
Well-entrenched in jurisprudence is the rule that the 4) For the successful invocation of the defense
conviction of the accused must rest, not on the
weakness of the defense, but on the strength of the
prosecution. The burden is on the prosecution to
prove guilt beyond reasonable doubt, not on the
accused to prove his innocence. (Basilio v. People)
Rule 133, Section 6. Substantial evidence. – In cases

filed before administrative or quasi-judicial bodies, a
fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as

of alibi (People vs. Bation, 1999). Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data
5) To prove jurisdictional requirements in the accurately.
reconstitution of a destroyed or lost title (De
La Paz vs. Republic, 2017). The copies of the printout or output readable by sight
referred to in the immediately preceding paragraph are
6) In proving consented search (Villanueva vs. also deemed originals where the copies were
People, 2014). executed at or about the same time with identical
contents, or is a counterpart produced by the same
7) In granting bail in extradition proceedings impression as the original or from the same matrix, or
(Government of Hongkong vs. Munoz, 2016) by other means and which accurately reproduces the
original.
HIERARCHY OF QUANTUM OF EVIDENCE
Notwithstanding the foregoing, copies or duplicates
J. Rules on Electronic Evidence (A.M. No. shall not be admissible to the same extent as the
01-7-01-SC) original if:
Sec. 1 (h), Rule 2. "Electronic document" refers to a) a genuine question is raised as to the
information or the representation of information, data, authenticity of the original; or
figures, symbols or other modes of written expression,
described or however represented, by which a right is b) in the circumstances it would be unjust or
established or an obligation extinguished, or by which inequitable to admit the copy in lieu of the
a fact may be proved and affirmed, which is received, original.
recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed Is a printout of a facsimile transmission an
documents and any print-out or output, readable by electronic data message or electronic document?
sight or other means, which accurately reflects the
electronic data message or electronic document. For NO. The terms “electronic data message” and
purposes of these Rules, the term "electronic “electronic document,” as defined under the Electronic
document" may be used interchangeably with Commerce Act of 2000, do not include a facsimile
"electronic data message". transmission. Accordingly, a facsimile transmission
cannot be considered as electronic evidence. It is not
An electronic document, also known interchangeably the functional equivalent of an original under the Best
as electronic data message, based on the definition of Evidence Rule and is not admissible as electronic
the Rules, does not only refer to the information itself. evidence. (MCC Industrial Sales Corp. v. Ssangyong
It also refers to the representation of that information. Corp.)
Whether it be the information itself or its
representation, for the document to be deemed Authentication of Electronic Documents
'electronic," it is important that it be received,
recorded, transmitted, stored, processed, retrieved or Before any private electronic document offered as
produced electronically. authentic is received in evidence, its authenticity must
be proved by any of the following means:
Electronic documents are the functional
equivalents of paper-based documents. a) by evidence that it had been digitally signed
by the person purported to have signed the
Since an electronic document is the functional same;
equivalent of a paper-based document, whenever a
rule of evidence makes reference to the terms of a b) by evidence that other appropriate security
writing, document, record instrument, memorandum procedures or devices as may be authorized
or any other form of writing, such terms are deemed to by the Supreme Court or by law for
include electronic documents. It is, therefore, but authentication of electronic documents were
logical to consider the rules on evidence in the Rules applied to the document; or
of Court, including statutes containing rules of
evidence, to be of suppletory application to the Rules c) by other evidence showing its integrity and
on Electronic Evidence in all matters not specifically reliability to the satisfaction of the judge.
covered by the latter.
A document electronically notarized in accordance
Best Evidence Rule with the rules promulgated by the Supreme Court shall
be considered as a public document and proved as a
An electronic document shall be regarded as the notarial document under the Rules of Court.
equivalent of an original document under the Best


PART 2: reconsideration;
APPELLATE PRACTICE, PROCEDURE IN THE (b) An order denying a petition for relief or any
COURT OF APPEALS, COURT OF TAX similar motion seeking relief from judgment;
APPEALS, AND THE SUPREME COURT
(c) An interlocutory order;
I. APPEALS; GENERAL PRINCIPLES (d) An order disallowing or dismissing an appeal;
A. Nature of the right to appeal (e) An order denying a motion to set aside a
judgment by consent, confession or
The right to appeal is not a natural right and is not part compromise on the ground of fraud, mistake
of due process, but merely a statutory privilege to be or duress, or any other ground vitiating
exercised only in accordance with the law. Being the consent;
party who sought to appeal, he must comply with the
requirements of the relevant rules; otherwise, he (f) An order of execution;
would lose the statutory right to appeal. It cannot be
over-emphasized, indeed, that the procedures (g) A judgment or final order for or against one or
regulating appeals as laid down in the Rules of Court more of several parties or in separate claims,
must be followed because strict compliance with them counterclaims, cross-claims and third-party
was indispensable for the orderly and speedy complaints, while the main case is pending,
disposition of justice. unless the court allows an appeal therefrom;
and
B. Judgments and final orders subject to appeal
(h) An order dismissing an action without
An appeal may be taken from a judgment or final order prejudice.
that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be Difference between a dismissal with prejudice and
appealable. one without prejudice
Final order vs Interlocutory order Dismissal with prejudice disallows and bars the refiling
of the complaint; whereas, the same cannot be said of
The distinction between a final order and an a dismissal without prejudice. Likewise, where the law
interlocutory order is well known. The first disposes of permits, a dismissal with prejudice is subject to the
the subject matter in its entirety or terminates a right of appeal.
particular proceeding or action, leaving nothing more
to be done except to enforce by execution what the Dismissals that are based on the following grounds, to
court has determined, but the latter does not wit: (1) that the cause of action is barred by a prior
completely dispose of the case but leaves something judgment or by the statute of limitations; (2) that the
else to be decided upon. An interlocutory order deals claim or demand set forth in the plaintiff's pleading
with preliminary matters and the trial on the merits is has been paid, waived, abandoned or otherwise
yet to be held and the judgment rendered. The test to extinguished; and (3) that the claim on which the
ascertain whether or not an order or a judgment is action is founded is unenforceable under the
interlocutory or final is: “does the order or judgment provisions of the statute of frauds, bar the refiling of
leave something to be done in the trial court with the same action or claim. Logically, the nature of the
respect to the merits of the case?” If it does, the order dismissal founded on any of the preceding grounds is
or judgment is interlocutory; otherwise, it is final. "with prejudice" because the dismissal prevents the
refiling of the same action or claim. Ergo, dismissals
The remedy against an interlocutory order not subject based on the rest of the grounds enumerated are
of an appeal is an appropriate special civil action without prejudice because they do not preclude the
under Rule 65, provided that the interlocutory order is refiling of the same action.
rendered without or in excess of jurisdiction or with
grave abuse of discretion. Remedy against judgments and orders which are
not appealable
C. Matters not appealable; available remedies
In all the above instances where the judgment or final
No appeal may be taken from: order is not appealable, the aggrieved party may file
an appropriate special civil action under Rule 65.
(a) An order denying a motion for new trial or

D. Doctrine of finality/immutability of judgment; negligence; or

exceptions
2) When the petitioner has been prevented from
DOCTRINE OF IMMUTABILITY OF JUDGMENT taking an appeal by fraud, accident, mistake,
excusable negligence.
A judgment becomes 'final and executory' by
operation of law. Finality becomes a fact when the Mistake
reglementary period to appeal lapses and no appeal is
perfected within such period. As a consequence, no As used in Section 1, Rule 38 of the Rules of Court,
court (not even this Court) can exercise appellate "mistake" refers to mistake of fact, not of law, which
jurisdiction to review a case or modify a decision that relates to the case. The word "mistake," which grants
has became final. relief from judgment, does not apply and was never
intended to apply to a judicial error which the court
When a final judgment is executory, it becomes might have committed in the trial. Such errors may be
immutable and unalterable. It may no longer be corrected by means of an appeal.
modified in any respect either by the court which
rendered it or even by this Court. The doctrine is Fraud
founded on considerations of public policy and sound
practice that, at the risk of occasional errors, "Fraud," must be extrinsic or collateral, that is, the
judgments must become final at some definite point in kind which prevented the aggrieved party from having
time. a trial or presenting his case to the court, or was used
to procure the judgment without fair submission of the
Exceptions controversy.
The doctrine on immutability of final judgments admits Excusable Negligence

of exceptions:
Negligence to be excusable must be one which
1. clerical errors ordinary diligence and prudence could not have
2. nunc pro tunc entries which cause no guarded against. Under Section 1, the "negligence"
prejudice to any party must be excusable and generally imputable to the
3. void judgments party because if it is imputable to the counsel, it is
binding on the client.
II. POST-JUDGMENT REMEDIES OTHER
Who may file
THAN APPEAL
A petition for relief from judgment is a remedy
A. Petition for relief from judgment (Rule 38) available only to parties in the proceedings where the
assailed judgment is rendered.
A petition for relief from judgment is an equitable
remedy that is allowed only in exceptional cases A person who was never a party to the case, or even
where there is no other available or adequate remedy. summoned to appear therein, cannot avail of a
When a party has another remedy available to him, petition for relief from judgment.
which may be either a motion for new trial or appeal
from an adverse decision of the trial court, and he was When to file
not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking The petition shall be filed within sixty (60) days after
such appeal, he cannot avail himself of this petition. the petitioner learns of the judgment, final order or
Indeed, relief will not be granted to a party who seeks proceeding, and NOT more than six (6) months after
avoidance from the effects of the judgment when the such judgment or final order was entered, or such
loss of the remedy at law was due to his own proceeding was taken.
negligence; otherwise the petition for relief can be
used to revive the right to appeal which had been lost The period fixed by Rule 38 of the Rules of Court is
through inexcusable negligence. non-extendible and never interrupted. It is not subject
to any condition or contingency, because it is itself
Grounds for a petition for relief devised to meet a condition or contingency.
1) When a judgment or final order is entered, or Will the filing of petition for relief from judgment
any other proceeding is thereafter taken stay the execution of judgment?
against the petitioner in any court through
fraud, accident, mistake, excusable No. Because a final and executory judgment is the
subject of a petition for relief, the judgment may be

subject to execution. A person who files a petition must be brought before it is barred by laches
under Rule 38 may file a preliminary injunction to or estoppel.
preserve the rights of the parties upon filing of a bond.
The bond is conditioned upon the payment to the GROUNDS FOR ANNULMENT
adverse party of all damages and costs that may be
awarded to such adverse party by reason of the The annulment may be based only on:
issuance of the preliminary injunction. Such injunction
1) Extrinsic fraud
shall not discharge any lien which the adverse party
may have acquired upon the property of the petitioner. ■ Fraud is regarded as extrinsic where it
prevents a party from having a trial or
Is petition for relief available in the Supreme Court from presenting his entire case to the
or Court of Appeals? court or where it operates upon
matters pertaining not to the judgment
No. There is no provision in the Rules of Court making itself but the manner in which it is
the petition for relief applicable in the CA or this Court. procured. The overriding
The procedure in the CA from Rules 44 to 55, with the consideration when extrinsic fraud is
exception of Rule 45 which pertains to the Supreme alleged is that the fraudulent scheme
Court, identifies the remedies available before said of the prevailing party litigant
Court such as annulment of judgments or final orders prevented a party from having his day
or resolutions (Rule 47), motion for reconsideration in court.
(Rule 52), and new trial (Rule 53). Nowhere is a petition
for relief under Rule 38 mentioned. If a petition for 2) Lack of jurisdiction
relief from judgment is not among the remedies
available in the CA, with more reason that this remedy ■ Lack of jurisdiction as a ground for
cannot be availed of in the Supreme Court. This Court annulment of judgment refers to either
entertains only questions of law. A petition for relief lack of jurisdiction over the person of
raises questions of facts on fraud, accident, mistake, the defending party or over the
or excusable negligence, which are beyond the subject matter of the claim. In a
concerns of this Court. (Purcon v. MRM Philippines, petition for annulment of judgment
Inc) based on lack of jurisdiction,
petitioner must show not merely an
B. Annulments of judgment by the Court of abuse of jurisdictional discretion but
Appeals (Rule 47) an absolute lack of jurisdiction.
This Rule shall govern the annulment by the Court of Denial of Due Process
Appeals of judgments or final orders and resolutions in
Although Section 2 of Rule 47 of the Rules of Court
civil actions of Regional Trial Courts for which the
provides that annulment of a final judgment or order of
ordinary remedies of new trial, appeal, petition for
the RTC may be based “only on the grounds of
relief or other appropriate remedies are no longer
extrinsic fraud and lack of jurisdiction,” jurisprudence
available through no fault of the petitioner.
recognizes as additional ground therefor denial of due
process.
This remedy is not available to decisions of
quasi-judicial bodies. Rule 47 limits its application to Effects of Judgment of Annulment
Regional Trial Courts and Municipal Trial Courts.
A judgment of annulment shall set aside the
Requirements that must be satisfied before a Rule questioned judgment or final order or resolution and
47 petition can prosper render the same null and void, without prejudice to the
original action being refiled in the proper court.
1) The remedy is available only when the However, where the judgment or final order or
petitioner can no longer resort to the ordinary resolution is set aside on the ground of extrinsic fraud,
remedies of new trial, appeal, petition for relief the court may on motion order the trial court to try the
or other appropriate remedies through no fault case as if a timely motion for new trial had been
of the petitioner. granted therein.
2) An action for annulment of judgment may be The prescriptive period for the refiling of the aforesaid
based only on two grounds: extrinsic fraud original action shall be deemed suspended from the
and lack of jurisdiction. filing of such original action until the finality of the
judgment of annulment. However, the prescriptive
3) If based on extrinsic fraud, it must be filed period shall not be suspended where the extrinsic
within four years from the discovery of the fraud is attributable to the plaintiff in the original
extrinsic fraud; if based on lack of jurisdiction,

action. or any officer exercising judicial or

quasi-judicial functions;
C. Collateral attack on judgments, when proper
2) such tribunal, board or officer has acted
A collateral attack is made when, in another action to without or in excess of jurisdiction, or with
obtain a different relief, an attack on the judgment is grave abuse of discretion amounting to lack or
made as an incident in said action. This is proper only excess of jurisdiction; and
when the judgment, on its face, is null and void, as
where it is patent that the court, which rendered said 3) there is no appeal or any plain, speedy and
judgment, has no jurisdiction. adequate remedy in the ordinary course of
law.
Direct attack, on the other hand, is made through an
action or proceeding the main object of which is to The phrase "without jurisdiction" means that the
annul set aside, or enjoin the enforcement of such court acted with absolute lack of authority or want of
judgment, if not yet carried into effect; or, if the legal power, right or authority to hear and determine a
property has been disposed of, the aggrieved party cause or causes, considered either in general or with
may sue for recovery. reference to a particular matter. It means lack of
power to exercise authority.
Under our rules of procedure, the validity of a
judgment or order of the court, which has become "Excess of jurisdiction" occurs when the court
final and executory, may be attacked only by a direct transcends its power or acts without any statutory
action or proceeding to annul the same, or by motion authority; or results when an act, though within the
in another case if, in the latter case, the court had no general power of a tribunal, board or officer (to do) is
jurisdiction to enter the order or pronounce the not authorized, and invalid with respect to the
judgment (Section 44, Rule 39). The first proceeding is particular proceeding, because the conditions which
a direct attack against the order or judgment, because alone authorize the exercise of the general power in
it is not incidental to, but is the main object of, the respect of it are wanting.
proceeding. The other one is the collateral attack, in
which the purpose of the proceedings is to obtain While that of "grave abuse of discretion" implies
some relief, other than the vacation or setting aside of such capricious and whimsical exercise of judgment
the judgment, and the attack is only an incident. as to be equivalent to lack or excess of jurisdiction;
simply put, power is exercised in an arbitrary or
Void judgments may also be collaterally attacked. A despotic manner by reason of passion, prejudice, or
collateral attack is done through an action which asks personal hostility; and such exercise is so patent or so
for a relief other than the declaration of the nullity of gross as to amount to an evasion of a positive duty or
the judgment but requires such a determination if the to a virtual refusal either to perform the duty enjoined
issues raised are to be definitively settled. or to act at all in contemplation of law.
D. Rule 65 as a remedy from judgment Basic is the rule that a writ of certiorari will not issue
where the remedy of appeal is available to an
A special civil action for Certiorari, or simply a Petition aggrieved party. A remedy is considered "plain,
for Certiorari, under Rule 65 of the Revised Rules of speedy and adequate" if it will promptly relieve the
Court is intended for the correction of errors of petitioner from the injurious effects of the judgment
jurisdiction only or grave abuse of discretion and the acts of the lower court or agency.
amounting to lack or excess of jurisdiction. Its
principal office is only to keep the inferior court within The remedies of appeal in the ordinary course of law
the parameters of its jurisdiction or to prevent it from and that of certiorari under Rule 65 of the Revised
committing such a grave abuse of discretion Rules of Court are mutually exclusive and not
amounting to lack or excess of jurisdiction. alternative or cumulative. The special civil action of
Certiorari cannot be used as a substitute for a lost
A writ of certiorari may be issued only for the appeal41 where the latter remedy is available;
correction of errors of jurisdiction or grave abuse of especially if such loss or lapse was occasioned by
discretion amounting to lack or excess of jurisdiction. one’s own negligence or error in the choice of
Such cannot be used for any other purpose, as its remedies.
function is limited to keeping the inferior court within
the bounds of its jurisdiction. RULE 45 vs RULE 65
For a petition for certiorari to prosper, the essential

RULE 45 RULE 65
requisites that have to concur are:
CERTIORARI AS A CERTIORARI AS A
MODE OF APPEAL SPECIAL CIVIL ACTION
1) the writ is directed against a tribunal, a board

Certiorari under Rule 45 The petition shall be filed MODES OF APPEAL FROM JUDGMENTS
is to be filed within not later than sixty (60) OR FINAL ORDERS OF VARIOUS
fifteen (15) days from days from notice of the COURTS/TRIBUNALS
receipt of judgment or judgment, order or
final order. resolution.
Seeks to review final May be directed against

judgment or an interlocutory order of
final orders. the court or where no
appeal or plain or
speedy remedy is
available in the
ordinary course of law.
Raises only questions of Raises questions of

law (if directly from RTC), jurisdiction — that is,
or law, fact or both (if whether a tribunal, board
from other courts). or officer exercising A. Rule 40 – Appeal from Municipal Trial Courts to
judicial or quasi-judicial the Regional Trial Courts
functions has acted
without jurisdiction or in Where to appeal: RTC exercising jurisdiction over the
excess of jurisdiction or area to which the MTC pertains.
with grave abuse of
discretion amounting to When to appeal:
lack of jurisdiction.
● Notice of appeal → 15 days from notice of
Stays the judgment Does not stay the judgment;
appealed from. judgment or order
subject of the petition, ● Record on appeal → 30 days from notice of
unless enjoined or judgment.
restrained.
How to appeal/Perfection of Appeal:
Certiorari under Rule 45 In Certiorari under Rule
does not require filing of 65, motion for ● Notice of appeal → perfected as to him upon
motion for reconsideration is a the filing of the notice of appeal in due time;
reconsideration. condition precedent,
subject to exceptions. ● Record on appeal → perfected as to him with
respect to the subject matter thereof upon the
Parties are the original The tribunal, board, approval of the record on appeal filed in due
parties with the officer exercising judicial time.
appealing party as the or quasi-judicial
petitioner and the functions is impleaded Payment of docket fees
adverse party as the as primary respondent;
respondent without with adverse party in the The Court has consistently ruled in a number of cases
impleading the lower lower court (if any) as the that the payment of the full amount of docket fees
court or its private respondent. within the prescribed period is both mandatory and
judge. jurisdictional. It is a condition sine qua non for the
appeal to be perfected and only then can a court
Certiorari under Rule 45 May be filed with the acquire jurisdiction over the case. The requirement of
may only be filed before Supreme Court, Court of an appeal fee is not a mere technicality of law or
the Supreme Court. Appeals, procedure and should not be undermined except for
Sandiganbayan, or the most persuasive of reasons. Non-observance
Regional Trial Court. The would be tantamount to no appeal being filed thereby
principle of hierarchy of rendering the challenged decision, resolution or order
courts must be final and executory.
observed.
Nevertheless, the failure to pay appellate court docket
fee within the reglementary period allows only
discretionary dismissal, not automatic dismissal, of
III. APPEALS IN CIVIL PROCEDURE: the appeal. Such power should be used in the

exercise of the Court’s sound discretion "in When to appeal:

accordance with the tenets of justice and fair play and
with great deal of circumspection considering all ● Notice of appeal → 15 days from notice of
attendant circumstances." judgment;
Procedure in the Regional Trial Court ● Record on appeal → 30 days from notice of
judgment.
1) Upon receipt of the complete record or the
record on appeal, the clerk of court of the How to appeal/Perfection of Appeal:
Regional Trial Court shall notify the parties of
such fact. ● Notice of appeal → perfected as to him upon
the filing of the notice of appeal in due time;
2) Within fifteen (15) days from such notice, it
shall be the duty of the appellant to submit a In appeals by notice of appeal, the court loses
memorandum which shall briefly discuss the jurisdiction over the case upon the perfection
errors imputed to the lower court, a copy of of the appeals filed in due time and the
which shall be furnished by him to the adverse expiration of the time to appeal of the other
party. Within fifteen (15) days from receipt of parties.
the appellant’s memorandum, the appellee
may file his memorandum. Failure of the ● Record on appeal → perfected as to him with
appellant to file a memorandum shall be a respect to the subject matter thereof upon the
ground for dismissal of the appeal. approval of the record on appeal filed in due
time.
3) Upon the filing of the memorandum of the
appellee or the expiration of the period to do In appeals by record on appeal, the court
so, the case shall be considered submitted for loses jurisdiction only over the subject matter
decision. The Regional Trial Court shall decide thereof upon the approval of the records on
the case on the basis of the entire record of appeal filed in due time and the expiration of
the proceedings had in the court of origin and the time to appeal of the other parties.
such memoranda as are filed.
COURT’S RESIDUAL JURISDICTION
APPEAL FROM ORDERS DISMISSING CASE
WITHOUT TRIAL; LACK OF JURISDICTION Prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the
If an appeal is taken from an order of the lower court protection and preservation of the rights of the parties
dismissing the case without a trial on the merits, the which do not involve any matter litigated by the
Regional Trial Court may affirm or reverse it, as the appeal, approve compromises, permit appeals of
case may be. In case of affirmance and the ground of indigent litigants, order execution pending appeal in
dismissal is lack of jurisdiction over the subject matter, accordance with Section 2 of Rule 39, and allow
the Regional Trial Court, if it has jurisdiction thereover, withdrawal of the appeal.
shall try the case on the merits as if the case was
originally filed with it. In case of reversal, the case The "residual jurisdiction" of the trial court is available
shall be remanded for further proceedings. at a stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject
If the case was tried on the merits by the lower court matter involved in the appeal. This stage is reached
without jurisdiction over the subject matter, the upon the perfection of the appeals by the parties or
Regional Trial Court on appeal shall not dismiss the upon the approval of the records on appeal, but prior
case if it has original jurisdiction thereof, but shall to the transmittal of the original records or the records
decide the case in accordance with the preceding on appeal. In either instance, the trial court still retains
section, without prejudice to the admission of its so-called residual jurisdiction to issue protective
amended pleadings and additional evidence in the orders, approve compromises, permit appeals of
interest of justice. indigent litigants, order execution pending appeal, and
allow the withdrawal of the appeal.
B. Rule 41 – Appeal from the Regional Trial Courts
Dismissal of appeal
RTC acting in its original jurisdiction — to Court of
Appeals Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial court
Where to appeal: Court of Appeals may, motu proprio or on motion, dismiss the appeal
for having been taken out of time or for non-payment
of the docket and other lawful fees within the

reglementary period. Where to appeal: Court of Appeals
The power of the trial court to disallow or disapprove a When to appeal: 15 days from notice of the award,
notice of appeal that has been filed out of time is judgment, final order or resolution, or from the date of
expressly recognized by the Rules of Court. The its last publication, if publication is required by law for
approval of the notice becomes a ministerial duty of its effectivity, or of the denial of petitioner’s motion for
the court only when the appeal is filed on time. new trial or reconsideration duly filed in accordance
Otherwise, the court has the discretion to refuse or with the governing law of the court or agency a quo.
disallow it in accordance with the Rules.
Upon proper motion and the payment of the full
C. Rule 42 – Petition for Review from the Regional amount of the docket fee before the expiration of the
Trial Courts to the Court of Appeals reglementary period, the Court of Appeals may grant
an additional period of fifteen (15) days only within
RTC acting in its appellate jurisdiction — to Court of which to file the petition for review. No further
Appeals extension shall be granted except for the most
compelling reason and in no case to exceed fifteen
Where to appeal: Court of Appeals (15) days.
When to appeal: 15 days from notice of the decision How to appeal: Filing a verified petition for review in
sought to be reviewed or of the denial of petitioner’s seven (7) legible copies with the Court of Appeals,
motion for new trial or reconsideration filed in due time with proof of service of a copy thereof on the adverse
after judgment. party and on the court or agency a quo.
Upon proper motion and the payment of the full Only one (1) motion for reconsideration shall be
amount of the docket fee before the expiration of the allowed.
reglementary period, the Court of Appeals may grant
an additional period of fifteen (15) days only within Will the filing of the Petition stay the judgment or
which to file the petition for review. No further order appealed from?
extension shall be granted except for the most
compelling reason and in no case to exceed fifteen No. The appeal shall not stay the award, judgment,
(15) days. final order or resolution sought to be reviewed unless
the Court of Appeals shall direct otherwise upon such
How to appeal/Perfection of appeal: File a verified terms as it may deem just.
petition for review with the Court of Appeals, paying at
the same time to the clerk of said court the E. Rule 45 – Appeals by Certiorari to the Supreme
corresponding docket and other lawful fees, Court
depositing the amount of P500.00 for costs, and
furnishing the Regional Trial Court and the adverse CA, Sandiganbayan, CTA, RTC, and other courts — to
party with a copy of the petition. Supreme Court
Upon the timely filing of a petition for review and the Where to appeal: Supreme Court
payment of the corresponding docket and other lawful
fees, the appeal is deemed perfected as to the When to appeal: 15 days from notice of the judgment
petitioner. or final order or resolution appealed from, or of the
denial of the petitioner’s motion for new trial or
Will the filing of the Petition stay the judgment or reconsideration filed in due time after notice of the
order appealed from? judgment.
Yes. Except in civil cases decided under the Rule on On motion duly filed and served, with full payment of
Summary Procedure, the appeal shall stay the the docket and other lawful fees and the deposit for
judgment or final order unless the Court of Appeals, costs before the expiration of the reglementary period,
the law, or these Rules shall provide otherwise. the Supreme Court may for justifiable reasons grant
an extension of thirty (30) days only within which to file
D. Rule 43 – Appeals from the Court of Tax the petition.
Appeals, Civil Service Commission, and
Quasi-Judicial Agencies How to appeal: Filing a verified petition for review on
certiorari
Court of Tax Appeals
In all cases where only questions of law are raised or
Quasi-judicial agencies — to Court of Appeals involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with

Rule 45.
GROUNDS FOR DISMISSAL OF APPEAL
Grave abuse of discretion is not an allowable ground
under Rule 45. An appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the appellee, on the
FACTUAL-ISSUE-BAR RULE following grounds:
Petition for review under Rule 45 is discretionary. It a) Failure of the record on appeal to show on its
may only be availed if the appeal is on pure question face that the appeal was taken within the
of law. Thus, question of fact is not allowed to be period fixed by these Rules;
raised because the Supreme Court is not a trier of
facts. Consequently, calibration of evidence, as a rule b) Failure to file the notice of appeal or the
may not be entertained by the Supreme Court. record on appeal within the period prescribed
by these Rules;
F. Rule 64 – Review of judgments or final orders
of the Commission on Audit and the c) Failure of the appellant to pay the docket and
Commission on Elections other lawful fees as provided in section 5 of
Rule 40 and section 4 of Rule 41;
COA, COMELEC — to Supreme Court
d) Unauthorized alterations, omissions or
Where to appeal: Supreme Court additions in the approved record on appeal as
provided in section 4 of Rule 44;
When to appeal: 30 days from notice of the judgment
or final order or resolution sought to be reviewed. e) Failure of the appellant to serve and file the
required number of copies of his brief or
The filing of a motion for new trial or reconsideration memorandum within the time provided by
of said judgment or final order or resolution, if allowed these Rules;
under the procedural rules of the Commission
concerned, shall interrupt the period. f) Absence of specific assignment of errors in
the appellant’s brief, or of page references to
How to appeal: File a petition for certiorari under Rule the record as required in section 13,
65. paragraphs (a), (c), (d) and (f) of Rule 44;
The decision must be a final decision or resolution of g) Failure of the appellant to take the necessary
the Comelec en banc, not of a division, certainly not steps for the correction or completion of the
an interlocutory order of a division. record within the time limited by the court in
its order;
The ground upon which the petition must be filed is on
jurisdictional ground, that is, the COLEMEC or COA h) Failure of the appellant to appear at the
acted without jurisdiction or committed grave abuse of preliminary conference under Rule 48 or to
discretion amounting to lack or excess of jurisdiction. comply with orders, circulars, or directives of
the court without justifiable cause; and
Does Neypes or “fresh period” rule apply to
judgment or final order of COMELEC and COA? i) The fact that the order or judgment appealed
from is not appealable.
No. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but which Withdrawal of appeal
shall not be less than five (5) days in any event,
reckoned from notice of denial. An appeal may be withdrawn as of right at any time
before the filing of the appellee’s brief. Thereafter, the
Effect of filing withdrawal may be allowed in the discretion of the
court.
The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution
IV. APPEALS IN CRIMINAL CASES:
sought to be reviewed, unless the Supreme Court
shall direct otherwise upon such terms as it may deem MODES OF APPEAL FROM JUDGMENTS
just. OR FINAL ORDERS OF VARIOUS
COURTS/ TRIBUNALS
G. Dismissal, reinstatement, and withdrawal of
appeal A. Rule 122

1. Appeals from the Municipal Trial Courts An appeal from the sentence of the trial court implies
2. Appeals from the Regional Trial Courts a waiver of the constitutional safeguard against
3. Appeals from the Court of Appeals double jeopardy and throws the whole case open to a
a. Section 13, Rule 124 review by the appellate court. The latter is then called
upon to render judgment as law and justice dictate,
An appeal in a criminal proceeding throws the whole whether favorable or unfavorable to the appellant. This
case open for review and it becomes the duty of the is the risk involved when the accused decides to
appellate court to correct an error as may be found in appeal a sentence of conviction. Indeed, appellate
the appealed judgment whether they are made the courts have the power to reverse, affirm or modify the
subject of the assignment of errors or not. judgment of the lower court and to increase or reduce
the penalty it imposed.
Once an appeal in a case, whether civil or criminal, the
court a quo has been perfected, the court a quo loses WHERE TO APPEAL
jurisdiction over the case both over the record and
over the case's subject matter. Failure to serve a copy The appeal may be taken as follows:
to the prosecutor is not a defect which can nullify the
appeal or prejudice the unquestionable rights of the (a) To the Regional Trial Court, in cases decided
accused. by the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or
WHO MAY APPEAL Municipal Circuit Trial Court;
Any party may appeal from a judgment or final order, (b) To the Court of Appeals or to the Supreme
unless the accused will be placed in double jeopardy. Court in the proper cases provided by law, in
cases decided by the Regional Trial Court;
Clearly, both the accused and the prosecution may and
appeal a criminal case, but the government may do so
only if the accused would not thereby be placed in (c) To the Supreme Court, in cases decided by
double jeopardy. Furthermore, the prosecution cannot the Court of Appeals.
appeal on the ground that the accused should have
been given a more severe penalty. On the other hand, HOW APPEAL TAKEN
the offended parties may also appeal the judgment
with respect to their right to civil liability. If the The right to appeal is not a natural right nor a part of
accused has the right to appeal the judgment of due process but merely a statutory privilege and may
conviction, the offended parties should have the same be exercised only in the manner and in accordance
right to appeal as much of the judgment as is with the provisions of the law.
prejudicial to them.
APPEAL FROM APPEAL TO METHOD OF APPEAL
MTC/MeTC/MCTC Regional Trial Court Notice of Appeal (Rule 40)
RTC (original jurisdiction) Court of Appeals Notice of Appeal (Rule 41)
RTC (appellate jurisdiction) Court of Appeals Petition for Review (Rule 42)
RTC (penalty imposed is reclusion Notice of Appeal (Rule 41)

perpetua or life imprisonment or where a Court of Appeals
lesser penalty is imposed but for
offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more
serious offense for which death,
reclusion perpetua, or life imprisonment
is imposed)
RTC (penalty imposed is death penalty) Court of Appeals Automatic review (no need for notice of
appeal)
Court of Appeals (penalty imposed is not Supreme Court Petition for Review on Certiorari (Rule 45)

death, reclusion perpetua, or life

imprisonment)
Court of Appeals (penalty imposed is Supreme Court CA renders judgment, but refrains from
death) making an entry of judgment and
certifies the case and elevates to SC for
Review
Court of Appeals (penalty imposed is Supreme Court Notice of Appeal (Rule 41)
reclusion perpetua, or life imprisonment)
WHEN APPEAL TO BE TAKEN raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct
An appeal must be taken within fifteen (15) days from new trial and further proceedings.
promulgation of the judgment or from notice of the
final order appealed from. This period for perfecting an QUORUM OF THE COURT; CERTIFICATION OR
appeal shall be suspended from the time a motion for APPEAL OF CASES TO SUPREME COURT (Sec. 13,
new trial or reconsideration is filed until notice of the Rule 124)
order overruling the motion has been served upon the
accused or his counsel at which time the balance of Three (3) Justices of the Court of Appeals shall
the period begins to run. constitute a quorum for the sessions of a division. The
unanimous vote of the three (3) Justices of a division
SUBJECT MATTER FOR REVIEW ON APPEAL shall be necessary for the pronouncement of a
judgment or final resolution, which shall be reached in
In criminal cases, an appeal throws the case wide consultation before the writing of the opinion by a
open for review and the reviewing court can correct member of the division. In the event that the three (3)
errors or even reverse the trial court’s decision on Justices can not reach a unanimous vote, the
grounds other than those that parties raised as errors Presiding Justice shall direct the raffle committee of
(Guy vs. People) the Court to designate two (2) additional Justices to sit
temporarily with them, forming a special division of
EFFECT OF APPEAL BY ANY OF SEVERAL five (5) members and the concurrence of a majority of
ACCUSED such division shall be necessary for the
pronouncement of a judgment or final resolution. The
An appeal taken by one or more of several accused designation of such additional Justices shall be made
shall not affect those who did not appeal, except strictly by raffle and rotation among all other Justices
insofar as the judgment of the appellate court is of the Court of Appeals.
favorable and applicable to the latter.
Whenever the Court of Appeals finds that the penalty
The appeal of the offended party from the civil aspect of death, reclusion perpetua, or life imprisonment
shall not affect the criminal aspect of the judgment or should be imposed in a case, the court, after
order appealed from. discussion of the evidence and the law involved, shall
render judgment imposing the penalty of death,
Upon perfection of the appeal, the execution of the reclusion perpetua, or life imprisonment as the
judgment or final order appealed from shall be stayed circumstances warrant. However, it shall refrain from
as to the appealing party. entering the judgment and forthwith certify the case
and elevate the entire record thereof to the Supreme
APPEAL FROM THE CIVIL ASPECT Court for review.
The appeal period accorded to the accused should GROUNDS FOR DISMISSAL OF APPEAL
also be available to the offended party who seeks
redress of the civil aspect of the decision—the period The following are the grounds for dismissal of an
to appeal granted to the offended party is the same as appeal:
that granted to the accused (Ching v. Nicdao)
1) Failure to serve and file the required number of
POWER OF THE COURT OF APPEALS TO RECEIVE copies of his brief or within the time provided
EVIDENCE by these Rules;
The Court of Appeals shall have the power to try

cases and conduct hearings, receive evidence and
perform all acts necessary to resolve factual issues

2) Appellant escapes from prison or

confinement, jumps bail, or flees to a foreign
country during the pendency of the appeal;
3) Failure of the record on appeal to show on its

face that the appeal was taken within the
period fixed by the Rules;
4) Failure to file the notice of appeal or the

record on appeal within the period prescribed
by the Rules;
5) Failure of the appellant to pay docket and

other lawful fees;
6) Unauthorized alterations, omissions, or

additions in the approved record on appeal
7) Absence of specific assignment of error in the

appellant’s brief, or of page references to the
record as required; and
8) Failure of the appellant to take the necessary

steps for the correction or completion of the
record within the time limited by the court in
its order.
B. Appeals from the Office of the Ombudsman
The Court of Appeals has jurisdiction over orders,

directives and decisions of the Office of the
Ombudsman in administrative disciplinary cases only.
It cannot, therefore, review the orders, directives or
decisions of the Office of the Ombudsman in criminal
or non-administrative cases.
Appeals from decisions of the Office of the

Ombudsman in administrative disciplinary cases
should be taken to the Court of Appeals under Rule
43 of the Rules of Civil Procedure.
Parties seeking to question the resolutions of the

Office of the Ombudsman in criminal cases or
non-administrative cases, may file an original action
for certiorari with the Supreme Court, not with the
Court of Appeals, when it is believed that the
Ombudsman acted with grave abuse of discretion.
(Estrada v. Desierto)
C. Appeals from resolutions of the Office of the

City Prosecutor
D. Appeals from the Sandiganbayan
Decisions and final orders of the Sandiganbayan may

be appealed to the Supreme Court through a petition
for review on certiorari involving pure questions of law,
as provided for in Rule 45 of the Rules of Court.

V. PROCEDURE IN TAX CASES reconsideration within the 30-day period,

the BIR has 180 days to decide on the
A. Tax Remedies under the National Internal protest filed.
Revenue Code of 1997, as amended
From the filing of the admin protest, two
TAX ASSESSMENT AND RELATED PROCESSES things may happen: (a) BIR may sleep on
your protest; or (b) BIR may issue a denial
The tax assessment process can be divided into: of the protest in the form of Final Decision
on Disputed Assessment (FDDA).
1. Administrative Stage - these are all
proceedings that are happening at the BIR;
and ASSESSMENT
2. Judicial Stage - the proceeding after the ■ It is a written notice and demand made by BIR on
administrative stage. This is already the the taxpayer for the settlement of a due tax
appeal to the CTA up to the Supreme Court liability that is definitely set and fixed.
Tax Assessment Process: ■ A process by which the BIR inspects the books
and records of the taxpayer for tax leakages.
1) The Tax Assessment Process starts with
the issuance of a Letter of Authority ■ Tupaz v. Ulep — An assessment contains not
(LOA) only a computation of tax liabilities, but also a
demand for payment within a prescribed period.
2) After the issuance of the LOA, the The ultimate purpose of an assessment is to
authorized RO will conduct investigations of ascertain the amount that each taxpayer has to
the records submitted by the taxpayer and pay. It is a notice to the effect that the amount
it will be able to produce the initial therein stated is due with a demand for payment
assessment. The initial assessment will be thereof.
communicated through the Notice of
Discrepancy (ND). ■ SMI-ED Philippines Technology, Inc. v. CIR —
an assessment is the determination of amounts
3) If after the discussion of discrepancy, the due from a person obligated to make payments. In
BIR is still not satisfied with the defenses the context of national internal revenue collection,
and arguments raised by the taxpayer, it refers to the determination of the taxes due from
within 10 days from the conclusion of the a taxpayer under the NIRC.
discussion of discrepancy, the BIR will
endorse the tax assessment for the CIR v. Fitness by Design Inc. (2016)
issuance of a Preliminary Assessment
Notice (PAN). There is a 15-day period for The assessment process starts with the filing of tax
the taxpayer to file a reply to the PAN. return and payment of tax by the taxpayer. The initial
assessment evidenced by the tax return is a
4) If the BIR is not satisfied with the reply or if self-assessment of the taxpayer. The tax is primarily
the 15-day period lapsed without the computed and voluntarily paid by the taxpayer without
taxpayer filing a reply to the PAN, the BIR need of any demand from the government. If tax
will then issue a Final Assessment Notice obligations are properly paid, the Bureau of Internal
(FAN). From the receipt of the FAN, the Revenue may dispense with its own assessment.
taxpayer is given 30 days to respond. If you
failed to respond within the 30-day period After filing a return, the Commissioner or his or her
from the issuance of the FAN, the representative may allow the examination of any
assessment will become final and taxpayer for assessment of proper tax liability. The
executory. failure of a taxpayer to file his or her return will not
hinder the Commissioner from permitting the
5) The admin protest must be filed within the taxpayer's examination. The Commissioner can
30-day period from the receipt of the FAN. examine records or other data relevant to his or her
inquiry in order to verify the correctness of any return,
6) From the filing of the admin protest, which or to make a return in case of noncompliance, as well
is either: from the submission of relevant as to determine and collect tax liability.
supporting documents within the 60-day
period or the filing of the request for

Landmark case of CIR v. Benipayo [1962] accounting records, in order to determine the
taxpayer’s correct internal revenue tax
This case involves the re-computation of the present liabilities.
revenue based on past years ratio, particularly the
ratio of adult patrons to minor patrons, so when you ■ The LOA must be served within thirty (30)
go to theaters, a different price applies to adults and a days from the date of its issuance; otherwise,
different price applies to minors (tickets). So for the it shall become void. After the 30-day period,
past 3 years, the ratio of adult watching against minor the taxpayer shall have the right to refuse the
patrons is 3:1. And on the basis of that ratio, the BIR service of the LOA, unless it is revalidated.
examiner assumed that the 3:1 ratio is applicable in
the current year. So, it re-computed the revenue of ◆ How is LOA revalidated? How often can
Lucena theater based on that historical ratio. And it it be revalidated?
found a discrepancy so the BIR estimated what
should be the revenue this year if the ratio of adult to ● The LOA can be revalidated through
minor patrons would still be the same. So, BIR came the issuance of a new LOA.
with its own estimation of the revenue. It compared its
estimated revenue against the revenue declared in the ● Revalidation can be done only once if
annual income tax return and in the audited financial it was issued by the Regional Office;
statement. And there was a discrepancy. So on that and twice if issued by the National
ground, BIR assessed deficiency taxes. Office.
Assessments should not be based on mere CIR v. Linde Philippines, Inc., C.T.A. EB Case No.
presumptions no matter how reasonable or logical 2194 (C.T.A. Case No. 8783) [2021]
said presumptions may be. In order to stand the test
of judicial scrutiny, the assessment must be based on In the exercise of his assessment powers, the CIR is
actual facts. also empowered to conduct by himself in the
examination of any taxpayer, or he may authorize
Meaning to say, the BIR examiner should conduct other tax officers to conduct such examination.
actual examination of records and not just re-compute Section 6 (A) of the 1997 NIRC likewise vested the
based on assumptions or presumptions even if the CIR's duly authorized representatives the power to
assumption is based on historical data. authorize the examination of any taxpayer for the
purpose of collecting the correct amount of tax. The
The presumption of correctness of assessment being term "duly authorized representative" under Section 6
a mere presumption cannot be made to rest on (A) of the 1997 NIRC which may authorize examination
another presumption. Assessment based on of taxpayers refers to a Revenue Regional Director,
assumption is null and void. Otherwise, the right to in accordance with Sections 10 and 13 of the 1997
due process is violated. NIRC. The term likewise refers to other tax officials
with the rank equivalent to a division chief or
PROCEDURE IN THE ISSUANCE OF higher, pursuant to the CIR's authority to delegate
ASSESSMENTS powers vested in him under Section 7 of the 1997
NIRC.
■ The NIRC expressly provides that the
Commissioner of Internal Revenue (“CIR”) or CIR vs. Sony Philippines, Inc. [2010]
his duly authorized representative has the
power to examine tax returns and determine Based on Section 13 of the Tax Code, a Letter of
the corresponding tax due thereon. Authority or LOA is the authority given to the
appropriate revenue officer assigned to perform
■ Although the CIR or his/her duly authorized assessment functions. It empowers or enables said
representative has the power to issue revenue officer to examine the books of account and
assessments however, these cannot be other accounting records of a taxpayer for the
issued arbitrarily. purpose of collecting the correct amount of tax. The
very provision of the Tax Code that the CIR relies on is
1. LETTER OF AUTHORITY (LOA) unequivocal with regard to its power to grant authority
to examine and assess a taxpayer.
■ The first step in the assessment process is the
issuance of a Letter of Authority. There must be a grant of authority before any revenue
officer can conduct an examination or assessment.
■ It is an official document that empowers a Equally important is that the revenue officer so
Revenue Officer to examine and scrutinize a authorized must not go beyond the authority given. In
taxpayer’s books of accounts and other the absence of such an authority, the assessment or

examination is a nullity. have 30 days from the taxpayer's receipt of

the NOD to discuss the BIR’s findings of
Only one LOA should be issued for each taxable year alleged discrepancies in tax payment
under audit to include specific internal revenue tax (Discussion of Discrepancy).
liabilities. A LOA issued for “unverified prior years” is
void. ■ The Discussion of Discrepancy may either be
verbal or written and it shall not exceed thirty
Medicard Philippines vs. CIR [2017] (30) days from receipt by the taxpayer of the
Notice of Discrepancy. Here, the taxpayer is
The Court cannot convert the Letter Notice (LN) into given an opportunity to present his side and
the Letter of Authority (LOA) required under the law explain the discrepancies noted by the
even if the same was issued by the CIR himself. Under examiner and submit documents to support
RR No. 12-2002, LN is issued to a person found to the cancellation of the said discrepancies. The
have underreported sales/receipts per data generated taxpayer’s opportunity to submit all necessary
under the RELIEF system. Upon receipt of the LN, a documents that support his/her explanation
taxpayer may avail of the BIR's Voluntary Assessment shall likewise be within such 30-day period.
and Abatement Program. If a taxpayer fails or refuses
to avail of the said program, the BIR may avail of ■ If the taxing authority still finds the taxpayer
administrative and criminal remedies, particularly, liable for deficiency tax or the taxpayer is
closure, criminal action, or audit and investigation. unable to sufficiently address the items of the
Since the law specifically requires a LOA and RMO alleged tax discrepancy, the PAN may be
No. 32-2005 requires the conversion of the previously issued within 10 days from the conclusion of
issued LN to an LOA, the absence thereof cannot be the Discussion.
simply swept under the rug, as the CIR would have it.
In fact RMC No. 40-2003 considers an LN as a notice 3. PRELIMINARY ASSESSMENT NOTICE (PAN)
of audit or investigation only for the purpose of
disqualifying the taxpayer from amending his returns. ■ The PAN is a written communication issued by
the Commissioner of Internal Revenue or his
The following differences between an LOA and LN are duly authorized representative informing a
crucial. First, an LOA addressed to a revenue officer is taxpayer who has been audited of the findings
specifically required under the NIRC before an of his deficiency tax/es, showing in details the
examination of a taxpayer may be had while an LN is facts and the law, rules and regulations,
not found in the NIRC and is only for the purpose of and/or jurisprudence on which the
notifying the taxpayer that a discrepancy is found assessment is based.
based on the BIR's RELIEF System. Second, an LOA
is valid only for 30 days from date of issue while an LN ■ If the taxpayer disagrees with the findings
has no such limitation. Third, an LOA gives the stated in the PAN, he shall then have fifteen
revenue officer only a period of 10days from receipt of (15) days from his receipt of the PAN to file a
LOA to conduct his examination of the taxpayer written reply contesting the proposed
whereas an LN does not contain such a limitation. assessment.
Simply put, LN is entirely different and serves a
different purpose than an LOA. Due process demands, ■ Failure to file a reply to the PAN will not bar
as recognized under RMO No. 32-2005, that after an the taxpayer from protesting the FLD/FAN
LN has served its purpose, the revenue officer should because PAN is not the final assessment
have properly secured an LOA before proceeding with which can be protested as contemplated
the further examination and assessment of the under the NIRC.
petitioner. Unfortunately, this was not done in this
case. When is PAN not required?
2. NOTICE OF DISCREPANCY (a.k.a Notice of 1) When the finding for any deficiency tax is the
Informal Conference) result of Mathematical error in the
computation of the tax appearing on the face
■ If a taxpayer is found to be liable for of the tax return filed by the taxpayer; or
deficiency tax or taxes by the Revenue Officer,
he/she shall be informed through a Notice of 2) When the Excise tax due on excisable articles
Discrepancy which would fully afford him/her has not been paid; or
an opportunity to present and explain his
side.. 3) When a Discrepancy has been determined
between the tax withheld and the amount
■ Under RR 22-2020, the taxpayer and the BIR actually remitted by the withholding agent; or

4) When an article locally purchased or imported received by the taxpayer.

by an Exempt person, such as, but not limited
to, vehicles, capital equipment, machineries ■ The taxpayer has 30 days from receipt of the
and spare parts, has been sold, traded or FAN to protest the assessment by filing an
transferred to non-exempt persons (Sec. 228, administrative protest. Failure to file a reply to
NIRC); or FAN will make the assessment final and
executory.
5) When a taxpayer who opted to claim a refund
or tax credit of excess creditable withholding CIR v. Fitness by Design Inc. [2016]
tax for a taxable period was determined to
have Carried over and automatically applied Although the disputed notice provides for the
the same amount claimed against the computations of respondent's tax liability, the amount
estimated tax liabilities for the taxable quarter remains indefinite. It only provides that the tax due is
or quarters of the succeeding taxable year. still subject to modification, depending on the date of
payment. Second, there are no due dates in the Final
In the above-cited cases, Final Assessment Notice Assessment Notice. For FAN to be valid, it must
shall be issued outright. contain a definite demand to pay. For it to have a
definite demand to pay, the amount being collected
CIR vs. Metro Star Superama Inc. [2010] should be definite and the due date for payment
should also be definite.
Section 228 of the Tax Code clearly requires that the
taxpayer must first be informed that he is liable for The rationale behind the requirement that taxpayers
deficiency taxes through the sending of a PAN. He should be informed of the facts and the law on which
must be informed of the facts and the law upon which the assessments are based conforms with the
the assessment is made. The law imposes a constitutional mandate that no person shall be
substantive, not merely a formal requirement. To deprived of his or her property without due process of
proceed heedlessly with tax collection without first law. Between the power of the State to tax and an
establishing a valid assessment is evidently violative individual's right to due process, the scale favors the
of the cardinal principle in administrative right of the taxpayer to due process.
investigations — that taxpayers should be able to
present their case and adduce supporting evidence. The purpose of the written notice requirement is to aid
the taxpayer in making a reasonable protest, if
The sending of a Preliminary Assessment Notice (PAN) necessary. Merely notifying the taxpayer of his or her
to the taxpayer to inform him of the assessment made tax liabilities without details or particulars is not
is but part of the due process requirement in the enough.
issuance of a deficiency tax assessment, the absence
of which senders nugatory any assessment made by CIR vs. Enron Subic Power Corp. [2009]
the tax authorities.
Just because the CIR issued an advice, a preliminary
3. FORMAL LETTER OF DEMAND/FINAL letter during the pre-assessment stage and a final
ASSESSMENT NOTICE (FLD/FAN) notice, in the order required by law, does not
necessarily mean that Enron was informed of the law
■ An FLD/FAN is a written demand to pay and facts on which the deficiency tax assessment was
deficiency taxes issued to a taxpayer who fails made.
to respond to a PAN within the prescriptive
period of time, or whose reply to the PAN was The law requires that the legal and factual bases of
found to be without merit, whether in full or in the assessment be stated in the formal letter of
part. demand and assessment notice. The alleged “factual
bases” in the advice, preliminary letter and “audit
■ The FAN/FLD calling for payment of the working papers” did not suffice. There was no going
taxpayer’s deficiency tax or taxes shall state around the mandate of the law that the legal and
the facts, the law, rules and regulations, or factual bases of the assessment be stated in writing in
jurisprudence on which the assessment is the formal letter of demand accompanying the
based, otherwise, the FAN/FLD shall be void. assessment notice.
■ The FLD/FAN must (a) be in writing and CIR v. Pascor Realty and Development
signed by the BIR, (b) contain the law and Corporation [1999]
facts on which the assessment was based, (c)
contain a demand for payment within the An assessment contains not only a computation of tax
prescribed period,and (d) be served upon and liabilities, but also a demand for payment within a

prescribed period. It also signals the time when reason.

penalties and interests begin to accrue against the
taxpayer. To enable the taxpayer to determine his CIR vs. Transitions Optical Philippines [2017]
remedies thereon, due process requires that it must
be served on and received by the taxpayer. A PAN merely informs the taxpayer of the initial
Accordingly, an affidavit which was executed by findings of the BIR, it does not contain a demand for
revenue officers stating the tax liabilities of a taxpayer payment but usually requires the taxpayer to reply
and attached to a criminal complaint for tax evasion, within 15 days from receipt. Otherwise, the CIR will
cannot be deemed an assessment that can be finalize an assessment and issue a FAN. The PAN
questioned before the CTA. gives both the taxpayer and the CIR the opportunity to
settle the case at the earlies possible time without the
In the present case, the revenue officers’ affidavit need for the issuance of a FAN.
merely contained a computation of respondents’ tax
liability. It did not state a demand or a period of On the other hand, a FAN contain not only a
payment. Worse, it was addressed to the Justice computation of tax liabilities but also demand for
Secretary, not to the taxpayers. That the BIR payment within a prescribed period. It also signals the
examiners’ Joint Affidavit attached to the Criminal time when penalties and interests begin to accrue
Complaint contained some details of the tax liabilities against the taxpayer.
of private respondents does not ipso facto make it an
assessment. The purpose of the Joint Affidavit was Considering the functions and effects of a PAN vs a
merely to support and substantiate the Criminal FAN, it is clear that the assessment contemplated in
Complaint for tax evasion. Clearly, it was not meant to Sections 203 and 222 of the NIRC refers to the service
be a notice of the tax due and a demand to the private of the FAN upon the taxpayer.
respondents for payment thereof. On that ground, the
affidavit cannot be considered a FAN and since there CIR vs. Pacific Bayview Properties [2018]
is no administrative assessment then there could be
no administrative protest. A taxpayer has fifteen days from receipt of the PAN to
file a protest thereto with the BIR. If during the said
CIR v. Avon Products [2018] period, the taxpayer failed to file a protest to the PAN,
it is only then that the CIR or his duly authorized
Avon was deprived of due process. It was not fully representative can consider the taxpayer in default,
apprised of the legal and factual bases of the and correspondingly cause the issuance of a FLD and
assessments issued against it. The Details of assessment notice, which shall be subsequently
Discrepancy attached to the Preliminary Assessment served to the said taxpayer. In other words, the CIR or
Notice, as well as the Formal Letter of Demand with his duly authorized representative is duty bound to
the Final Assessment Notices, did not even comment wait for the expiration of 15 days from the date of
or address the defenses and documents submitted by receipt of the PAN before issuing the FLD and FAN.
Avon. Thus, Avon was left unaware on how the Such a process or procedure is part and parcel of the
Commissioner or her authorized representatives due process requirement in the issuance of a
appreciated the explanations or defenses raised in deficiency tax assessment.
connection with the assessments. There was clear
inaction of the Commissioner at every stage of the The BIR issued the FAN on the 14th day. Imagine,
proceedings. hindi pa nag lalapse yung period to reply, meron na
agad decision. The CTA En Banc held that there was
According to the SC, it is true that the Commissioner a violation of the right to dues process for the
is not obliged to accept the taxpayer's explanations, premature service of FAN.
as explained by the Court of Tax Appeals. However,
when he or she rejects these explanations, he or she What if the PAN was issued within the 3-year
must give some reason for doing so. He or she must period but the FAN was issued outside the 3-year
give the particular facts upon which his or her period? Is the assessment deemed issued on
conclusions are based, and those facts must appear time?
in the record. Hindi katulad nung nangyari dito,
nagreply sa NOD, PAN, FAN until it reached the FFDA, ■ No. As clarified in the case of CIR v.
but these documents – NOD, PAN, FAN, FDDA – Transitions Optical, the assessment notice
contained similar findings without any explanation on referred to in Section 203 which provides for
why the supporting documents and allegations of the the regular prescriptive period for assessment
taxpayer were brushed aside. Wala man lang sinabi and in Section 222 which provides for the
kung bakit dinisregard yung explanation of the extraordinary prescriptive period for
taxpayer. The right to be heard, which includes the assessment and collection, the assessment
right to present evidence, is meaningless if the notice referred to in those two provisions is
Commissioner can simply ignore the evidence without

the Final Assessment Notice. Meaning to say, 248, NIRC)

it is the FAN which must be issued within the
3-year period or the 10-year period. Thus, if CIR vs. United Salvage and Towage (Phils.), Inc.
the PAN was issued within the 3-year period [2014]
but the FAN was issued outside the 3-year
period, then the assessment cannot be When BIR validly issues an assessment within the
deemed as a valid assessment because the three (3)-year period, it has another three (3) years
assessment has already prescribed. within which to collect the tax due by distraint, levy, or
court proceeding. The assessment of the tax is
PRESCRIPTIVE PERIOD FOR ASSESSMENT deemed made and the three (3)-year period for
collection of the assessed tax begins to run on the
General rule: Internal revenue taxes shall be assessed date the assessment notice had been released, mailed
within three years after the last day prescribed by or sent to the taxpayer.
law for the filing of the return or from the day the
return was actually filed whichever comes later. (Sec. CIR vs. Phoenix Assurance [1965]
203, NIRC)
The rule is that internal revenue taxes shall be
■ Ex. The due date for the filing is April 15, assessed within three years after the last day
2022. The actual return was filed on April 10, prescribed by law for the filing of the return. However,
2022. So whichever is later — April 15, 2022. if the return originally filed is amended substantially,
We add 3 years — April 15, 2025 that will be the counting of the three-year period starts from the
the last day allowed by law for the BIR to date the amended return was filed.
issue a FAN if it is a regular assessment.
Example: The taxpayer filed the annual income tax
Exception: In case of Failure to File, False, or return for the year 2021 on April 12, 2021. A few
Fraudulent Returns: (Sec. 222, NIRC) months after (May 2021), the taxpayer discovered that
there were some errors - some over declaration and
■ (a) tax may be assessed, or (b) a proceeding some underdeclaration. As a result, the taxpayer filed
in court for the collection of such tax may an Amended Return on May 22, 2021. You will count
be filed without assessment, at any time the three year prescriptive period from May 22, 2021
within 10 years after the discovery of which is the filing of the amended return.
falsity, fraud, or omission.
Basilan Estates vs. CIR [1967]
■ Any internal revenue tax, which has been
assessed within the 10-year prescriptive The assessment is deemed made when notice to this
period may be collected within five (5) years effect is released, mailed, or sent by the BIR to the
from date of assessment. taxpayer [within the prescriptive period], and it is not
required that the notice be received by the taxpayer
What constitutes prima facie evidence of a false or within the prescriptive period.
fraudulent return to justify extension of period of
assessment, and the imposition of 50% surcharge The important reckoning point would be the point of
on the deficiency tax due from the taxpayer? mailing or sending to the taxpayer such that if it is
mailed before the lapse of the 3-yr period but the FAN
■ There is a prima facie evidence of false or was received outside the 3-year period, then the
fraudulent return when the taxpayer assessment is still issued on time. So it is the date of
substantially under declared his taxable sales, mailing or the date of sending that is controlling not
receipts or income, or substantially overstated the date of receipt.
his deductions.
What is important is that the final assessment notice
When can you say that the under declaration or has been released already as of the lapse of the
over declaration is substantial? three-year prescriptive period even if it is received
after.
■ The taxpayer’s failure to report sales, receipts
or income in an amount exceeding 30% of CIR vs. GJM Philippines [2016]
that declared per return, and a claim of
deduction in an amount exceeding 30% of When an assessment is made within the prescriptive
actual deduction shall render the taxpayer period, receipt by the taxpayer may or may not be
liable for substantial under declaration and within said period. But the rule does not dispense with
over declaration, respectively, and will justify the requirement that the taxpayer should actually
the imposition of the 50% surcharge on the receive the assessment notice, even beyond the
deficiency tax due from the taxpayer (Sec.

prescriptive period. If the taxpayer denies having prescriptive period for collection which is five
received the assessment from the BIR, it then years. It should be the same for the regular
becomes incumbent upon the latter to prove by prescriptive period for collection.
competent evidence that such notice was indeed
received by the addressee. CIR vs. United Salvage and Towage [2014]
While it is true that an assessment is made when the When BIR validly issues an assessment within the
notice is sent within the prescriptive period, the three year period, it has another three years within
release, mailing, or sending of the same must still be which to collect the tax due by distraint, levy, or court
clearly and satisfactorily proved. If the taxpayer proceeding. The assessment of the tax is deemed
denied having received the assessment notice, it is made and the three year period for collection of the
incumbent now upon the BIR to prove that the FAN assessed tax begins to run on the date the
was actually received by the taxpayer. assessment notice had been released, mailed, or sent
to the taxpayer.
CIR vs. Primetown Property Group [2007]
The rule on the prescriptive period for collection here
The Administrative Code should govern, being a later is just an obiter.
law than the Civil Code. So a year means 12 calendar
months. We no longer compute the exact number of
Can the BIR initiate an action with the court for the
days. We only need to add 3 to the year to get the last
collection of taxes without undergoing through the
date or the due date for the BIR to file an assessment
assessment process?
because a year means 12 calendar months. Just add
3 to the year.
General Rule: No proceeding in court without
assessment for the collection of such taxes shall
PRESCRIPTIVE PERIOD FOR COLLECTION begin after the expiration of the 3-year prescriptive
period for the assessment. (Section 203, NIRC)
Unfortunately, the Tax Code is silent on the regular
prescriptive period for collection. The regular Exception: In case of False or Fraudulent Return or
prescriptive period for collection is not specified in the Failure to File a return (Section 222, NIRC)
Tax Code.
What is the repercussion if there is prima facie
In practice, there are two schools of thought for evidence of false or fraudulent return?
prescriptive period for collection:
■ Aside from the fact that the BIR can impose a
■ 5 years with reference to Sec 222; surcharge of 50%, if there is prima facie
evidence of a False or Fraudulent Return when
■ 3 years (CIR v. United Salvage and Towage; the taxpayer substantially under declares his
obiter). revenue or sales by 30% or substantially over
declares his expenses by 30%, more
What is the justification for saying that the regular importantly the effect would be that the BIR
prescriptive period for collection is three years? can now impose the provisions of Section
222, in which case it can apply the
○ In case of ambiguity in the tax law, it should extraordinary prescriptive period of
be construed against the government assessment of ten years.
because it is the government who drafted and
created the law provision. So, in case of ■ The regular surcharge is 25%. From 25%, it
ambiguity it should be construed against will increase to 50% if there is prima facie
them. Lesser prescriptive period means, evidence of FFF.
limiting the power of the government to
assess and collect.
CIR v. Fitness by Design Inc. [2016]
Explanation for the 5-year prescriptive period for
This Court held that there is a difference between
collection:
"false return" and a "fraudulent return." A false return
simply involves a "deviation from the truth,
○ From the perspective of the BIR, there should
whether intentional or not" while a fraudulent
be an additional five years prescriptive period
return "implies intentional or deceitful entry with
for collection with reference to Sec. 222, the
intent to evade the taxes due."
extraordinary prescriptive period for collection.
BIR says that it should be the same. In
Here, the taxpayer was assessed deficiency taxes.
Section 222, we defined the extraordinary
One of the grounds raised by the taxpayer is

prescription. According to the taxpayer, the ● There would be tolling of the running
assessment has already prescribed because it was of the statute of limitations only if your
issued beyond the three-year regular prescriptive administrative protest is a request for
period. The defense of BIR is that the three-year reinvestigation.
period should not be used as a reference considering
that there is fraud. It is the extraordinary prescriptive ● NOTE: The term granted does not
period of 10 years which shall apply. mean that your position will be
accepted.
However, according to the SC, it is incumbent upon
the BIR to clearly state the allegations of fraud 3) When the taxpayer cannot be located in the
committed by the taxpayer to serve the purpose of an address given by him in the return filed upon
assessment notice to aid the taxpayer in filing an which a tax is being assessed or collected;
effective protest. Fraud is a question of fact that except if the taxpayer informs the
should be alleged and duly proven. Therefore, it is Commissioner of any change in address;
indispensable for the BIR to include the basis for its
allegations of fraud in the assessment notice. Mere 4) When the warrant of distraint or levy is duly
allegation of fraud without proof would not warrant the served upon the taxpayer, his authorized
application of the extraordinary prescriptive period of representative, or a member or his household
10-years. with sufficient discretion, and no property
could be located; and
CIR v. Pilipinas Shell Petroleum Corp. [ 2018]
5) When the taxpayer is out of the Philippines.
In the normal course of tax administration and (Section 223, NIRC)
enforcement, the BIR must first make an assessment
then enforce the collection of the amounts so WAIVER OF THE STATUTE OF LIMITATIONS
assessed. "An assessment is not an action or
proceeding for the collection of taxes. x x x It is a step A taxpayer, believing that he cannot present his books
preliminary, but essential to warrant distraint, if still of accounts and/or other accounting records, who
feasible, and, also, to establish a cause for judicial intends to request for more time to present these
action." The BIR may summarily enforce collection documents may execute what is referred to as a
only when it has accorded the taxpayer administrative Waiver of the Defense of Prescription under the
due process, which vitally includes the issuance of a Statute of Limitations of the NIRC. This recourse does
valid assessment. ASSESS FIRST BEFORE YOU not apply when a Subpoena Duces Tecum has
COLLECT. already been issued.
GROUNDS FOR THE SUSPENSION OF RUNNING What is the effect of executing the waiver of
OF THE STATUTE OF LIMITATIONS FOR statute of limitations?
ASSESSMENT AND COLLECTION
■ It will extend the prescriptive period for
1) For the period during which the Commissioner assessment or collection.
is prohibited from making the assessment or
beginning distraint or levy or a proceeding in What are instances where you may be compelled
court and for sixty (60) days thereafter; to execute the waiver of the statute of limitations?
● Example: The hard lockdown during a. Jeopardy Assessment

the pandemic in 2020. BIR offices b. Subpoena Duces Tecum
were closed. Walang nag-aassess,
walang nagpupunta sa taxpayer and Requisites of a valid waiver of statute of limitations
because of this limitation, that
revenue officers could not conduct a) The waiver must be in the proper form
audit, could not serve warrants of prescribed by the BIR. Expiry date should be
distraints or levy, BIR issued a indicated.
revenue memorandum circular stating
the suspension of the statute of b) The waiver must be signed by the taxpayer
limitations. himself or his duly authorized representative.
In the case of a corporation, the waiver must
2) When the taxpayer requests for a be signed by any of its responsible officials.
reinvestigation which is granted by the
Commissioner; c) The waiver should be duly notarized.
d) The CIR or the revenue official authorized by

him must sign the waiver indicating that the extend the period to a date certain, within which the
BIR has accepted and agreed to the waiver. latter could still assess or collect taxes due.
The date of such acceptance by the BIR
should be indicated. CIR vs. Transitions Optical Philippines [2017]
e) Both the date of execution by the taxpayer In the case at bar, respondent performed acts that
and date of acceptance by the Bureau should induced the BIR to defer the issuance of the
be before the expiration of the period of assessment. Records reveal that to extend the BIR's
prescription or before the lapse of the period prescriptive period to assess respondent for
agreed upon in case a subsequent agreement deficiency taxes for taxable year 2004, respondent
is executed. executed two (2) waivers. The first Waiver dated
October 2007 extended the period to assess until
f) The waiver must be executed in three copies, June 20, 2008, while the second Waiver extended the
the original copy to be attached to the docket period to assess the taxes until November 30, 2008.
of the case, the second copy for the taxpayer As a consequence of the issuance of said waivers,
and the third copy for the Office accepting the petitioner delayed the issuance of the assessment.
waiver. (Revenue Memorandum Order No.
20-90) The Court of Tax Appeals, both its First Division and
En Banc, declared as defective and void the two (2)
★ The most important requisite is to remember Waivers of the Defense of Prescription for non-
the THREE DATES: compliance with the requirements for the proper
execution of a waiver as provided in RMO No. 20-90
1. Date of expiration of the prescriptive and RDAO No. 05-01. Specifically, the Court of Tax
period Appeals found that these Waivers were not
2. Date of execution by the taxpayer accompanied by a notarized written authority from
3. Date of acceptance by the BIR respondent, authorizing the so-called representatives
to act on its behalf. Likewise, neither the Revenue
● The date of execution and the date of District Office's acceptance date nor respondent's
acceptance must be before the date receipt of the Bureau of Internal Revenue's
of expiration. acceptance was indicated in either document.
★ The other important requisite, at least based on Can the respondent claim the invalidity of the waivers
jurisprudence, is that the signatory to the waiver thereby resulting in cancellation of the assessment on
should be duly authorized. the ground of prescription?
CIR v. The Stanley Works Sales (Phils.), Indeed, the Bureau of Internal Revenue was at fault
Incorporated [2014] when it accepted respondent's Waivers despite their
non-compliance with the requirements of RMO No.
A waiver of the defense of prescription was executed 20-90 and RDAO No. 05-01. Nonetheless,
but it was not signed by the Commissioner or any of respondent's acts also show its implied admission of
his authorized representatives and did not state the the validity of the waivers.
date of acceptance.
First, respondent never raised the invalidity of the
Has the right to collect of the Commissioner Waivers at the earliest opportunity, either in its
prescribed? Protest to the PAN, Protest to the FAN, or
Supplemental Protest to the FAN. It thereby impliedly
YES. The Court held that the Commissioner’s right to recognized these Waivers' validity and its
collect has prescribed. The period to assess and representatives' authority to execute them.
collect deficiency taxes may be extended only upon a Respondent only raised the issue of these Waivers'
written agreement between the Commissioner and validity in its Petition for Review filed with the Court of
the taxpayer prior to the expiration of the three-year Tax Appeals.
prescribed period. The BIR cannot claim the benefits
of extending the period when it was the BIR’s inaction Second, respondent does not dispute petitioner's
which is the proximate cause of the defects of the assertion that respondent repeatedly failed to comply
waiver. with petitioner's notices, directing it to submit its
books of accounts and related records for
A waiver of the statute of limitations, whether on examination by the Bureau of Internal Revenue.
assessment or collection, should not be construed as Respondent also ignored the Bureau of Internal
a waiver of the right to invoke the defense of Revenue's request for an Informal Conference to
prescription but, rather, an agreement between the discuss other "discrepancies" found in the partial
taxpayer and the Bureau of Internal Revenue (BIR) to documents submitted. The Waivers were necessary to

give respondent time to fully comply with the Bureau Remedial Law.
of Internal Revenue notices for audit examination and
to respond to its Informal Conference request to Under the Best Evidence Obtainable Rule, the BIR can
discuss the discrepancies. Thus, having benefited rely on some other records and documents from
from the Waivers executed at its instance, respondent government offices and from third parties even if they
is estopped from claiming that they were invalid and are not related parties to the taxpayer. This source of
that prescription had set in. information and document can be a valid basis of
assessment.
To clarify, the waiver is void. It is just that the SC ruled
against the taxpayer on the ground of estoppel.
COLLECTION OF DELINQUENT ACCOUNTS
There was a defect on the part of the taxpayer,
What alternatives are open to the Government for
there was likewise a defect on the execution on
collection of delinquent accounts?
the part of the BIR. So the waivers were not valid,
but can the taxpayer invoke the invalidity of the
Once an assessment or any part thereof becomes
waiver to argue prescription?
final, executory and demandable, the Government
may employ any or all, of the following remedies for
■ NO on the ground of estoppel. According to
the collection of delinquent accounts:
the SC, the Waivers were necessary to give
respondent time to fully comply with the
1) Distraint of Personal Property belonging to the
Bureau of Internal Revenue notices for audit
taxpayer;
examination and to respond to its Informal
2) Levy upon real property and on the interest in
Conference request to discuss the
or rights to real property;
discrepancies. Thus, having benefited from
3) Tax Lien (Sec. 219, NIRC);
the Waivers executed at its instance,
4) Forfeiture (Sec. 224, NIRC);
respondent is estopped from claiming that
5) Civil Action;
they were invalid and that prescription had
set in.
6) Criminal Action.
JEOPARDY ASSESSMENT
Either of these remedies or simultaneously may be
pursued, at the discretion of the authorities charged
A Jeopardy Assessment is a tax assessment made by
with the collection of such taxes, if the taxpayer fails
an authorized Revenue Officer (RO) without the
to pay the delinquent taxes voluntarily. (Section 205,
benefit of complete or partial audit, in light of the RO’s
NIRC)
belief that the assessment and collection of a
deficiency tax will be jeopardized by delay caused by
You need not choose one among the remedies. You
the Taxpayer’s failure to:
may choose one or two or three or all of them. They
may be instituted successively or simultaneously.
a. Comply with audit and investigation
requirements to present his books of
The remedy by distraint of personal property and levy
accounts and/or pertinent records, or
on real property may be repeated, if necessary, until
the full amount of the tax liability, including the
b. Substantiate all or any of the deductions,
increments incident to the delinquency is collected.
exemptions or credits claimed in his
return.
DISTRAINT OF PERSONAL PROPERTY
A jeopardy assessment is valid.
Distraint of personal property involves the seizure by
the Government of any goods, chattels or effects, and
“BEST EVIDENCE OBTAINABLE RULE”
the personal property, including stocks and other
securities, debts, credits, bank accounts, and interest
In the conduct of a tax audit, the BIR may resort to
in and rights to personal property of the delinquent
any document material to the inquiry, information
taxpayer in sufficient quantity to satisfy the tax liability,
from government offices, testimony of other persons
including any increment thereto incident to
when the report or records requested from the
delinquency. All seized personal properties shall be
taxpayer is not forthcoming (i.e. records are lost,
sold at public auction after due notice to the
refusal of taxpayer to submit such records), or the
owner/possessor of the property and the publication
reports submitted are false, incomplete or erroneous.
or posting of such notice.
This is not the same with the Best Evidence Rule in
Garnishment is one way of distraining a personal
property of a delinquent taxpayer. It is effected by

serving a warrant of garnishment upon a third party this lien shall not be valid against any mortgagee,
who is in possession and control of the following purchaser or judgment creditor until notice of
properties among others, of the delinquent taxpayer: such lien shall be filed by the Commissioner in the
office of the Register of Deeds of the province or
a) Salaries of the taxpayer; city where the property of the taxpayer is situated
b) Deposits with the bank; or located. (Section 219, NIRC)
c) Stocks and bonds from any private or
government offices that safe-keep stocks and ★ If there is a previously annotated lien, the tax
bond certificates e.g. Stock Brokers, lien under Sec. 219 will be subordinated to the
Philippine Stock Exchange (PSE), the Bureau previously annotated lien in the Registry of
of Treasury (BTR) etc.; Deeds.
d) Rental income of the taxpayer from the
lessee/tenant; and REMEDIES ARE AVAILABLE TO THE TAXPAYER IN
e) Trade and other receivables from customers THE SETTLEMENT OF HIS TAX LIABILITIES
and other debtors.
1) Payment in full or in installment, including
What’s the difference of garnishment from a usual delinquency penalties;
distriant? 2) Payment through compromise settlement
(Revenue Regulations No. 30-2002); and
■ The warrant of distraint, this is served upon 3) Payment through abatement of penalties
the taxpayer himself because the taxpayer is (Revenue Regulations No. 13-2001)
in possession of the personal property being
seized. Compromise – asking for reduction of tax liability
Abatement – cancellation of tax liability
■ In garnishment, the warrant of garnishment is
served to the 3rd party possessing the Grounds for compromise settlement
personal property of the taxpayer.
a) A reasonable doubt as to the validity of the
If the property to be seized is in the possession of the claim against the taxpayer exists (Doubtful
taxpayer, the warrant of distraint/garnishment is to be validity); or
served on the taxpayer, but if the property to be b) The financial position of the taxpayer
seized is in the possession of a third party, the warrant demonstrates a clear inability to pay the
of distraint/garnishment will be served to that third assessed tax (Financial Incapacity)
party.
When compromise is not available (RR 30-2002)
LEVY ON REAL PROPERTY
1) Withholding tax cases, unless the taxpayer
Levy on real property refers to the same act of seizure invokes provisions of law that cast doubt on
but, in this case, on real property and the interest in the taxpayer’s obligation to withhold;
and rights to such property in order to enforce the
collection of the tax unpaid, including delinquency 2) Delinquent accounts with duly approved of
penalties. Levy on real property is effected by filing a installment payment
Notice of Levy with the Register of Deeds where the
property of the delinquent taxpayer is located. 3) Criminal tax fraud cases confirmed by the CIR
or his duly authorized representative;
TAX LIEN
● If it is a Tax Fraud case, it is not a
The Tax Lien under the NIRC is the general lien in requirement that the criminal
favor of the government of the Philippines upon all complaint should be filed already.
property and rights belonging to the taxpayer. ● Upon the mere confirmation of the
BIR or the authorized representative
If any person, corporation, partnership, joint-account that what is involved is a criminal tax
(cuentas en participación), association or insurance fraud case, then it will no longer be
company liable to pay an internal revenue tax, subject of a compromise application.
neglects or refuses to pay the same after demand,
the amount shall be a lien in favor of the Government 4) Criminal violations already filed in court;
of the Philippines from the time when the assessment
was made by the Commissioner until paid, with ● Other criminal violations other than
interests, penalties, and costs that may accrue in tax fraud cases, the requirement is not
addition thereto upon all property and rights to mere confirmation by the BIR. The
property belonging to the taxpayer: Provided, That requirement is filing a complaint with

the court. in his protest:
5) Cases where final reports of reinvestigation or a) The nature of protest whether reconsideration
reconsideration have been issued resulting to or reinvestigation, specifying the desire for
reduction in the original assessment and the submission of newly discovered or additional
taxpayer is agreeable to such decision by evidence he intends to present if it is a request
signing the required agreement form for the for reinvestigation,
purpose;
b) date of the assessment notice, and
6) Cases which became final and executory after
final judgment of the court where compromise c) the applicable law, rules and regulations or
is requested on the ground of doubtful validity jurisprudence on which his protest is based,
of the assessment; otherwise, his protest will be considered void
and without force and effect.
● But there can still be compromise on
the ground of financial incapacity. KINDS OF ADMINISTRATIVE PROTEST
7) Estate tax cases where compromise is 1) Request for reconsideration — refers to a

requested on the ground of financial plea for re-evaluation of an assessment on the
incapacity basis of existing records without need of
additional evidence. It may involve both a
What is the minimum compromise settlement? question of fact or of law or both. It does not
toll the prescriptive period.
a) Doubtful validity of the assessment. - 40%
of the basic tax is the minimum offered 2) Request for reinvestigation — refers to a
amount. plea for re-evaluation of an assessment on the
basis of newly discovered or additional
What do you mean by basic tax? evidence that a taxpayer intends to present in
the reinvestigation. It may also involve a
○ Basic tax excludes interest, question of fact or of law or both. It tolls the
surcharges, and penalties. It refers prescriptive period.
only to the deficiency assessed tax
excluding increments. ■ Submission of supporting
documents - For requests for
b) Financial incapacity. - 10% of the basic tax reinvestigation, the taxpayer shall
is the minimum offered amount. submit all relevant supporting
documents in support of his protest
Grounds for abatement or cancellation of tax within sixty (60) days from date of
liabilities filing of his letter of protest.
Otherwise, the assessment shall
a) Tax or any portion thereof appears to be become final.
unjustly or excessively assessed. (Sec. 204)
■ NOTE: The failure of the taxpayer who
b) Administrative and collection costs involved requested for a reinvestigation to
do not justify the amount to be collected. submit all relevant supporting
(Sec. 204) documents within the 60-day period
shall render the FLD/FAN “final” by
c) Taxpayer is dead, leaving no operation of law.
distrainable/leviable property.
What happens after you file your admin protest?
d) Collection of the delinquent account has been
prescribed. ■ After you file your admin protest, the BIR is
given 180 days to decide. Two things may
ADMINISTRATIVE PROTEST happen: (1) the BIR may issue a final decision
on the disputed assessment, or (2) the BIR will
What are the characteristics of a valid protest? sleep on your protest, in which case it will be
deemed a denial by inaction.
The taxpayer must file a protest within thirty (30) days
from the date of receipt of the FLD/FAN and shall state CIR v. Liquigaz Philippines Corp. [2016]

It is undisputed that the Final Decision on Disputed Allied Banking Corporation vs. CIR [2010]
Assessment (FDDA) merely showed Liquigaz’ tax
liabilities without any details on the specific A careful reading of the Formal Letter of Demand with
transactions which gave rise to its supposed tax Assessment Notices leads us to agree with petitioner
deficiencies. While it provided for the legal bases of that the instant case is an exception to the rule on
the assessment, it fell short of informing Liquigaz of exhaustion of administrative remedies, i.e., estoppel
the factual bases thereof. The CIR erred in claiming on the part of the administrative agency concerned.
that Liquigaz was informed of the factual bases of the
assessment because the FDDA made reference to “xxx. This is our final decision based on investigation.
the PAN and FAN/FLD, which were accompanied by If you disagree, you may appeal the final decision
details of the alleged discrepancies. Revenue within 30 days from receipt hereof, otherwise said
Regulations No. 12-99 specifically require that the deficiency tax assessment shall become final,
decision of the CIR or his duly authorized executory and demandable.”
representative on a disputed assessment shall state
the facts, law and rules and regulations, or Nevertheless, we cannot blame petitioner for not filing
jurisprudence on which the decision is based. Failure a protest against the Formal Letter of Demand with
to do so would invalidate the FDDA. Assessment Notices since the language used and the
tenor of the demand letter indicate that it is the final
What is peculiar in this case is that the FDDA contains decision of the respondent on the matter. We have
the legal basis but not the factual basis for the denial time and again reminded the CIR to indicate, in a clear
of the protest. The factual and legal basis is a and unequivocal language, whether his action on a
requirement not only on the FAN, but also the FDDA. disputed assessment constitutes his final
determination thereon in order for the taxpayer
The SC held that it is not enough that the BIR refers to concerned to determine when his or her right to
the PAN and/or FAN. There is no going around the appeal to the tax court accrues. Viewed in the light of
requirement of alleging the legal and factual basis for the foregoing, respondent is now estopped from
the FDDA. In this case, the FDDA is therefore invalid. claiming that he did not intend the Formal Letter of
Demand with Assessment Notices to be a final
However, a void FDDA does not ipso facto render decision.
the assessment void. The assessment remains valid
notwithstanding the nullity of the FDDA because the The language used and the tenor of the demand letter
assessment itself differs from a decision on the indicate that it is the final decision of the BIR on the
disputed assessment. An FDDA that does not inform matter. There being a final decision, it can be a subject
the taxpayer in writing of the facts and law on which matter of a judicial protest
it is based renders the decision void. Therefore, it is
as if there was no decision rendered by the CIR. It is
tantamount to a denial by inaction by the CIR, JUDICIAL PROTEST
which may still be appealed before the CTA and the
assessment evaluated on the basis of the available Remedies available to taxpayer in case of decision
evidence and documents. or inaction of the BIR
SC said that the CTA validly obtains jurisdiction

because a void FDDA means as if the BIR failed to PAGCOR v. BIR [2016]
issue a decision at all, which means it is a denial by
inaction, which can be a subject matter of a petition Timeline:
for review.
● January 17, 2008 - PAGCOR received a
FAN
● January 24, 2008 - PAGCOR filed a protest
to the FAN addressed to the Regional
What is the effect of an invalid FAN?
Director
● August 14, 2008 - elevated its protest to
■ If the FAN is invalid, the whole assessment is
CIR
invalid.
● March 11, 2009 (412 days from protest to
the FAN) - PAGCOR filed a petition for
■ A void FDDA does not ipso facto render the
Review before the CTA alleging
whole assessment void. It is as if the BIR
respondent’s inaction.
made no decision on the protest. There being
no decision on the protest, it is therefore a
Were the remedies taken by PAGCOR proper?
denial by inaction.
Did the CTA acquire jurisdiction over the tax

assessment? is inaction by the RD, protest cannot be elevated to

the CIR. The remedy is to lodge a judicial protest
NO. A protesting taxpayer only has three options: within 30 days from the expiration of the 180-day
period.
1. If the protest is wholly or partially denied by
the CIR or his authorized representative, The other mistake committed by PAGCOR is that
then the taxpayer may appeal to the CTA they thought that the CIR will be given a fresh 180
within 30 days from receipt of the whole or days from the elevation of the protest. Note that
partial denial of the protest. 180-day period will be reckoned from the filing
of administrative protest; not from the time that
● Denial is either by the CIR himself the appeal was made to the CIR.
or his authorized representative
which is the Regional Director. DOCTRINE: Failure to act on the part of the BIR’s
● Remedy: appeal to the CTA within authorized representative, appeal to the CIR is NOT
30 days from receipt of the denial an available remedy.
2. If the protest is wholly or partially denied by

the CIR's authorized representative, then
the taxpayer may appeal to the CIR within
SIMPLIFIED RULES:
30 days from receipt of the whole or partial
denial of the protest.
1) A whole or partial denial by the authorized
representative
● Denial is by the CIR’s authorized
representative. ● Remedy: either appeal to the CIR or
● Remedy: appeal to the CIR within to the CTA
30 days from receipt. This appeal is
2) A whole or partial denial by the CIR
in the form of a request for
reconsideration. ● Remedy: appeal to the CTA
3) CIR or CIR’s authorized representative’s failure
3. If the CIR or his authorized representative
to act → denial by inaction
failed to act upon the protest within 180
days from submission of the required ● Remedy: appeal to the CTA
supporting documents, then the taxpayer
may appeal to the CTA within 30 days from Option to await for the decision of the BIR
the lapse of the 180-day period.
Lascona Land Co., Inc. v. CIR [2012]
● Denial by inaction.
● The 180 days is counted from It must be emphasized, however, that in case of
submission of the required the inaction of the CIR on the protested
supporting documents. That is 180 assessment, while we reiterate — the taxpayer has
days from your admin protest. two options, either:
● Remedy: appeal to the CTA within
30 days from the lapse of the (1) file a petition for review with the CTA within
180-day period. 30 days after the expiration of the 180-day
period; or
There is no mention of an appeal to the CIR from
the failure to act by the CIR's authorized (2) await the final decision of the
representative. Commissioner on the disputed assessment
and appeal such final decision to the CTA
When PAGCOR filed its petition before the CTA, it is within 30 days after the receipt of a copy of
clear that PAGCOR failed to make use of any of the such decision.
three options described above. A petition before the
CTA may only be made after a whole or partial These options are mutually exclusive and resort
denial of the protest by the CIR or the CIR's to one bars the application of the other.
authorized representative. When PAGCOR filed its
petition before the CTA on 11 March 2009, there Accordingly, considering that Lascona opted to
was still no denial of PAGCOR's protest by either await the final decision of the Commissioner on the
the RD or the CIR. Therefore, under the first option, protested assessment, it then has the right to
PAGCOR's petition before the CTA had no cause of appeal such final decision to the Court by filing a
action because it was prematurely filed. Since there

petition for review within thirty days after receipt of final decision of the Commissioner on the disputed
a copy of such decision or ruling, even after the assessment and appeal this final decision to the
expiration of the 180-day period fixed by law for Court of Tax Appeals within 30 days from receipt of
the Commissioner of Internal Revenue to act on the it, "are mutually exclusive and resort to one bars
disputed assessments. the application of the other.“
The collection letter received by Avon on July 14,

2003 constitutes the final decision of the
Commissioner that is appealable to the Court of
Example: Say, the 180-day period lapse, the taxpayer
Tax Appeals. The Collection Letter dated July 9,
opted to file a petition for review within 30 days with
2004 demanded from Avon the payment of the
the CTA division.
deficiency tax assessments with a warning that
should it fail to do so within the required period,
The CTA Division ruled against the taxpayer, and for
summary administrative remedies would be
some reason, the BIR, despite the decision rendered
instituted without further notice. Hence, Avon's
by the CTA Division, still issued a FDDA. The CTA
appeal to the Court of Tax Appeals filed on August
decision was rendered Jan. 30. A month after, Feb. 28,
13, 2004 was not time-barred.
BIR issued a decision.
Here, the CTA acquired jurisdiction because the
Can there be a protest? Or a judicial protest or a
taxpayer opted to avail of the second option under
filing of a petition for review with the CTA Division
the Lascona Land Co. case. Remember, in the
on the basis of the FDDA issued by the BIR?
Lascona case, there are two options available. In
the case of Avon, the latter did not avail of the first
■ No. This is because you have already availed
remedy. It did not file an appeal within 30 days from
of the first remedy-filing a petition for review
the expiration of the 180-day period and yet it filed
with the CTA Division upon the expiration of
an appeal upon the unfavorable or against the
the 180-day period. Availment of one remedy
unfavorable action by the BIR which is the receipt
precludes the application of the other.
of the collection letter.
Until when can you wait?
■ Literally forever. There is no limit. There is no

restriction and no limit under the tax The requirement is only receipt of the unfavorable
regulations. decision by the BIR. In the case of Avon, there is
already a collection letter. We do not need a decision
here because the BIR is already collecting. It is as if
CIR v. Avon Products [2018]
the BIR is denying your protest. So this could be the
reckoning point.
Timeline:
In the case of PAGCOR, CIR had no decision. When it
● Protest against FAN/FLD – May 9, 2003
was elevated in the CTA, it means wala pang decision
yung BIR. Since nagexpire na din yung 180-days, it is
● Expiration of 180 day period for BIR to
deemed awaiting for the decision of the CIR.
decide – November 5, 2003
Why is the Court in the case of PAGCOR held that
● Deadline for appeal to CTA if reckoned from
the assessment had become final and executory?
expiration of 180 day period – December 5,
2003
■ Because they have availed of the wrong
remedy. They have protested it already,
● Receipt of Collection Letter from the BIR –
elevated it by judicial protest without awaiting
July 14, 2004
for the decision. kaya siya naging final and
executory.
● Filing of appeal with the CTA Division –
August 13, 2004
■ What PAGCOR should have done in this case
is to await the decision of the BIR. And upon
The appeal to CTA was made on time.
receipt of that decision, that is the reckoning
point for the filing of the petition for review
This Court stressed that these two (2) options of the
with the CTA. But since PAGCOR availed of
taxpayer, i.e.,to (1) file a petition for review before
the wrong remedy, then that will be prejudicial
the Court of Tax Appeals within 30 days after the
to its interest. Hence, assessment became
expiration of the 180-day period; or (2) to await the

final and executory. Moral Lesson of the Story: If the protest or FDDA or
decision rendered by the BIR contains a direction,
When can belated filing of judicial protest be exhausting all administrative remedies like filing of an
allowed? appeal with the CIR, then it will be better to follow that
direction and exhaust all administrative remedies.
Misnet, Inc. v. Commissioner of Internal Revenue
[2019]
TAX REFUND
Misnet received the Amended Assessment Notice and
FDDA on March 28, 2011. The Amended Assessment In Tax Refund, it is the taxpayer who is running after
Notice contains the following provision: the government/BIR for taxes paid excessively
erroneously or illegally.
“IF YOU DISAGREE WITH THIS ASSESSMENT, FILE YOUR
PROTEST IN WRITING INDICATING YOUR REASONS CLAIM FOR REFUND UNDER SEC. 229 OF NIRC,
WITH THE COMMISSIONER OF INTERNAL REVENUE, AS AMENDED
BIR DILIMAN, QUEZON CITY OR THE REGIONAL
DIRECTOR WITHIN 30 DAYS FROM RECEIPT HEREOF: x
x x” The grounds for refund are:
On April 8, 2011 petitioner filed a letter-reply to the 1. Excessive collected taxes;

Amended assessment notice and FDDA which was 2. Erroneously collected taxes; or
received by the CIR on April 11. On May 9, 2011, CIR 3. Illegal collected taxes
sent a letter to petitioner which states in part that
petitioner's letter-reply produced no legal effect. CBK Power Co. vs. CIR [2015]
According to the CIR, the proper remedy should have
been to file a petition for review directly with the CTA. Sections 204 and 229 of the NIRC pertain to the
refund of erroneously or illegally collected taxes.
On June 29, 2011, petitioner received a Preliminary Section 204 applies to administrative claims for
Collection Letter dated June 22, 2011, which is refund, while Section 229 to judicial claims for refund.
deemed a denial of petitioner's Petition for Relief. On In both instances, the taxpayer’s claim must be filed
July 26, 2011, petitioner filed a Petition for Review within two (2) years from the date of payment of the
with the CTA. tax or penalty. However, Section 229 of the NIRC
further states the condition that a judicial claim for
Did the CTA acquire jurisdiction? Or was the refund may not be maintained until a claim for refund
appeal to the CTA Division made on time? or credit has been duly filed with the Commissioner.
Reckoned from this date of receipt of the FDDA on DOCTRINE: Both the administrative and judicial claim
March 28, 2011, it has until April 27, 2011, within must be brought within the 2-year prescriptive period.
which to appeal with the CTA. However, Misnet filed
its appeal (Petition for Review) only on July 26, 2011 Reckoning point: For tax refund, the 2-year
or after the lapse of 93 days from its receipt of the prescriptive period is reckoned from the date of
FDDA. payment of taxes, as a general rule. The 2-year
prescriptive period covers both administrative and
HOWEVER, Petitioner's belated filing of an appeal judicial claims.
with the CTA is not without strong, compelling reason.
We could say that petitioner was merely exhausting Example: Say, the taxpayer filed a claim for
all administrative remedies available before refund with the BIR on day 10 of the 2-year
seeking recourse to the judicial courts. While the prescriptive period. The 2-year prescriptive
rule is that a taxpayer has 30 days to appeal to the period is about to lapse. Assuming that we are
CTA from the final decision of the CIR, the said 30 days away from the expiration of the 2-year
rule could not be applied if the Assessment Notice prescriptive period, BIR has not yet rendered
itself clearly states that the taxpayer must file a a decision on the claim of refund.
protest with the CIR or the Regional Director
within 30 days from receipt of the Assessment May then the taxpayer elevate or file a petition for
Notice. Under the circumstances obtaining in this review with the CTA on the ground of failure to act
case, we opted not to apply the statutory period on the part of the BIR or denial by inaction?
within which to appeal with the CTA considering that
no final decision yet was issued by the CIR on ■ It is very important that the petition for review
petitioner's protest. The subsequent appeal taken by with the CTA must be instituted and filed
petitioner is from the inaction of the CIR on its protest. within the 2-year prescriptive period. Hence, if
that judicial claim is filed outside the 2-year

prescriptive period, then the CTA cannot Any liability in excess of the refundable amount,
acquire jurisdiction over the tax refund claim. however, may not be collected in a case involving
solely the issue of the taxpayer's entitlement to
■ NOTE: Judicial claim cannot be availed of refund. The question of tax deficiency is distinct and
without making an administrative claim. Only unrelated to the question of petitioner's entitlement to
after the BIR denies the claim, either by action refund. Tax deficiencies should be subject to
or inaction, that the taxpayer may proceed to assessment procedures and the rules of prescription.
the CTA. The court cannot be expected to perform the BIR's
duties whenever it fails to do so either through neglect
■ If the two year period is about to lapse without or oversight. Neither can court processes be used as
decision of the CIR, it should be treated as a tool to circumvent laws protecting the rights of
decision by inaction, appealable to the CTA. taxpayers.
What is the difference between administrative

claim and judicial claim?
Can the CTA determine the correct amount of tax
■ The administrative claim is the claim for refund that should have been paid in an action for refund?
filed in the BIR; whereas the Judicial claim is
the filing of a petition for review with the CTA ■ YES. Because how can the CTA determine if
upon the denial of the claim for refund by the the refund is proper if there would be no prior
BIR or the failure to act by the BIR. There is determination of what the correct amount of
also a denial by inaction. It is either there is tax is applicable in a particular transaction.
express denial of the claim for refund or there The CTA cannot properly rule on the refund if
is a failure to act on the part of the BIR. there would be no prior determination of the
correct tax implication on a given transaction
■ The taxpayer may elevate his claim to the CTA
if the 2-year prescriptive period is about to Can the CTA order the collection of the deficiency
expire and the BIR has not yet rendered a tax determined/found during a tax refund claim?
decision on his claim.
■ NO. In an action for refund and in an action for
SMI-ED Phil. Technology, Inc. v. Commissioner of assessment, the jurisdiction of the CTA is only
Internal Revenue [2014] appellate in nature. The primary jurisdiction is
vested with the BIR, so there should be an
Petitioner argued that the Court of Tax Appeals had no assessment first made by the BIR before an
jurisdiction to subject it to 6% capital gains tax or action is filed with the court.
other taxes at the first instance. The Court of Tax
Appeals has no power to make an assessment. RECKONING POINT OF CLAIMING FOR TAX
REFUND IN CASE OF OVERPAYMENT IN
Does the CTA have the power to determine correct QUARTERLY INCOME TAX RETURNS
tax liability in an action for refund?
Under Sec. 229, the reckoning point of the
The Court of Tax Appeals has no power to make an prescriptive period is from the date of payment.
assessment at the first instance. On matters such as
tax collection, tax refund, and others related to the But in case of quarterly income tax returns - taxable
national internal revenue taxes, the Court of Tax corporations are required to file quarterly income tax
Appeals' jurisdiction is appellate in nature. returns. So in case of overpayment of quarterly
corporate income tax, the reckoning point shall be
In stating that petitioner's transactions are subject to from the date the final adjustment return is filed after
capital gains tax, however, the Court of Tax Appeals the end of the taxable year (from Q1 to Q4).
was not making an assessment. It was merely
determining the proper category of tax that petitioner The filing and payment of the quarterly income tax
should have paid, in view of its claim that it should only be considered as mere installments of the
erroneously imposed upon itself and paid the 5% final annual tax due. The fact of excess payment can only
tax imposed upon PEZA-registered enterprises. be established upon the filing of the final adjustment
return.
The determination of the proper category of tax that
petitioner should have paid is an incidental matter CIR v. TMX Sales [1992]
necessary for the resolution of the principal issue,
which is whether petitioner was entitled to a refund. As a rule, the two-year prescriptive period runs from
the payment of tax. However, in case of overpayment

of quarterly corporate income tax, the reckoning point withheld and remitted by the borrower pursuant to the
shall be from the date the final adjustment return is loan agreement. There was double remittance of FWT
filed after the end of the taxable year. The period is on the same account.
counted from the actual filing, not the last day allowed
by law to file. Remittance to the BIR - April 25, 2001
The filing and payment of the quarterly income tax Admin Claim - Dec. 27, 2002
should only be considered as mere installments of the
annual tax due. These quarterly payments should be Judicial Claim - Sept. 10, 2003
treated as advances or portions of the annual income
tax due, to be adjusted at the end of the year, its Final Metrobank’s judicial claim is outside the 2-year
Adjustment Return. prescriptive period thus it is now barred by
prescription.
CIR v. Univation Motor Philippines [2019]
Final withholding taxes are considered as full and final
The two-year prescriptive period to claim a refund payment of the income tax due, and thus, are not
actually commences to run, at the earliest, on the date subject to any adjustments. Thus, the two (2)-year
of the filing of the adjusted final tax return because prescriptive period commences to run from the time
this is where the figures of the gross receipts and the refund is ascertained, i.e., the date such tax was
deductions have been audited and adjusted, paid, and not upon the discovery by the taxpayer of
reflective of the results of the operations of a business the erroneous or excessive payment of taxes.
enterprise.
In the case at bar, it is undisputed that Metrobank's
In the instant case, the two-year period to file a claim final withholding tax liability in March 2001 was
for refund is reckoned from April 15, 2011, the date remitted to the BIR on April 25, 2001. As such, it only
respondent filed its Final Adjustment Return. Since had until April 25, 2003 to file its administrative and
respondent filed its administrative claim on March 12, judicial claims for refund. However, while Metrobank's
2012 and its judicial claim on April 12, 2013, administrative claim was filed on December 27, 2002,
therefore, both of respondent's administrative and its corresponding judicial claim was only filed on
judicial claims for refund were filed on time or within September 10, 2003. Therefore, Metrobank's claim for
the two-year prescriptive period provided by law. refund had clearly prescribed.
Under the circumstances, if respondent awaited for
the commissioner to act on its administrative claim Is a deficiency tax assessment a bar to a claim for
(before resort to the Court), chances are, the two-year tax refund or tax credit?
prescriptive period will lapse effectively resulting to the
loss of respondent's right to seek judicial recourse ■ YES. The taxpayer cannot be entitled to a
and worse, its right to recover the taxes it erroneously refund and at the same time liable for a tax
paid to the government. deficiency assessment for the same year. The
grant of a refund is founded on the
NOTE: DO NOT WAIT FOR THE DECISION OF THE assumption that the tax return is valid, that is,
CIR IF THE 2-YEAR PRESCRIPTIVE PERIOD IS the facts stated therein are true and correct.
ABOUT TO LAPSE. The deficiency assessment, although not yet
final, created a doubt as to and constitutes a
challenge against the truth and accuracy of
RECKONING POINT OF CLAIMING FOR TAX the facts stated in said return which, by itself
REFUND IN CASE OF OVERPAYMENT OF A FINAL and without unquestionable evidence, cannot
TAX be the basis for the grant of the refund. (CIR v.
CA, 1994)
Final Tax → this is the final tax liability on the income
subject to such tax. There would be no further income ■ However, if the tax refund and tax assessment
tax liability on the income which is subjected to final pertain to different years, there is no issue.
withholding tax.
Ex1. ABC Corp. has an ongoing tax assessment for
In case of final taxes, the reckoning point is from the the year 2018. Can ABC Corp. file for refund of
actual remittance by the withholding agent. allegedly excess or erroneous taxes paid for 2018?
Metrobank v. CIR [2017] ■ NO. It is a bar to the claim for refund. It is

contradictory. Why would a taxpayer claim for
Metrobank remitted FWT on interest income on a refund if in the first place the taxpayer is
foreign loan even if the same tax was already subject of an ongoing BIR assessment? The

fact that there is an ongoing tax assessment PAL v. CIR [2013]

presupposes that there is some deficiency on
the part of the taxpayer. PAL received from Caltex an Aviation Billing Invoice for
the purchase of aviation fuel. PAL is the buyer; Caltex
Ex2. Tax assessment is for 2018. Taxpayer is filing is the seller and passed on to PAL the excise tax
a refund claim for excess taxes paid in 2020. Can component. PAL filed a refund claim on the basis of its
that be allowed? franchise which includes exemption from taxes
including those passed on to it by the seller and/or
■ YES. The tax assessment will not be a bar to importer thereof.
the claim for refund because they pertain to
different years. Does PAL have a legal personality to file a refund
claim?
Who has the proper interest to claim for a refund?
If the law confers an exemption from both direct or
General Rule: the statutory taxpayer. indirect taxes, a claimant is entitled to a tax refund
even if it only bears the economic burden of the
Exception: an exempt party from both direct and applicable tax.
indirect taxes can claim for refund.
PAL's payment of either the basic corporate income
Silkair Singapore PTE v. CIR [2008] tax or franchise tax, whichever is lower, exempt it from
paying: (a) taxes directly due from or imposable upon
Silkair purchased aviation jet fuel from Petron. Petron it as the purchaser of the subject petroleum products;
passed on to Silkair the excise tax for fuel. Silkair and (b) the cost of the taxes billed or passed on to it
instituted a claim for refund with the BIR based on the by the seller, producer, manufacturer, or importer of
tax treaty arrangement between the Philippines and the said products either as part of the purchase price
Singapore which provides exemptions from custom or by mutual agreement or other arrangement.
duties, inspection fees and other duties or taxes
imposed in the Philippines. PAL's franchise grants it an exemption from both
direct and indirect taxes on its purchase of petroleum
Is Silkair exempt from indirect taxes? Can Silkair products, hence, it has a legal standing to claim for
claim a refund? refund.
Tax exemptions are strictly construed against the In Silkair, it is only exempt from direct tax. In PAL, it is
taxpayer. Exemption from all taxes, like the one exempt from both direct and indirect taxes. In either
contained in the treaty between the Philippines and case, the statutory taxpayer is entitled to claim. In
Singapore, refers only to exemption from direct taxes. case the party is exempt from both direct and indirect
Since excise tax is an indirect tax, Silkair is not tax (like PAL) and the statutory taxpayer files the claim
exempt from excise tax. first, the remedy of the exempt party from direct and
indirect tax is to make a claim for refund directly from
Since tax exemptions are strictly construed against the statutory taxpayer.
the taxpayer, for a taxpayer to avail of that exemption,
there must be presentation of a provision of the law or Does a withholding agent have the right to file an
regulation providing for the exemption. application for tax refund?
An exemption couched on general terms refers only to ■ YES. A withholding agent should be allowed
direct taxes. If one calls for the application of a tax to claim for tax refund, because under the law
exempting statute, then the taxpayer must be able to said agent is the one who is held liable for any
prove that the tax exempt statute is clear and specific. violation of the withholding tax law should
An exemption couched in general terms would be such violation occur. Furthermore, since the
construed against the taxpayer. withholding agent is made personally liable to
deduct and withhold any tax under Section
Silkair cannot claim a refund. The proper party to 53(c) of the NIRC, it is imperative that he be
question, or seek a refund of, an indirect tax is the considered the taxpayer for all legal intents
statutory taxpayer, the person on whom the tax is and purposes.
imposed by law and who paid the same even if he
shifts the burden thereof to another. Thus, Petron is ■ Withholding agent is considered a taxpayer
the proper party to claim for refund of the indirect tax, under Sec. 22(N) because there is an
being the statutory taxpayer to whom the tax is obligation on the part of the agent to deduct
imposed. and withhold taxes, and remit to the BIR.
Moreover, the agent is made liable for

erroneous deduction, withholding and withholding tax, it is rightfully entitled to a refund.

remittance. Here, Wander can be held liable
and can be penalized if it did not withhold and IRREVOCABILITY RULE UNDER SECTION 76 OF
remit a portion of the dividend income to the THE TAX CODE
BIR. Since Wander can be held liable, then it
is considered a taxpayer. (CIR v. Wanderer, Under the case of University Physicians Services
1988) (Management) v. CIR, the SC clarified that the
irrevocability option pertains to carry-over. Once the
When proof of remittance of tax to the BIR is not taxpayer has opted to carry-over the excess
required for tax refund application payments, it can no longer change its decision and
choose a refund or an application for tax credit
PAL v. CIR [2018] certificate over the excess payment.
PAL made various bank deposits with the Agent The irrevocable option, under Sec 76 and as laid down
Banks. PAL earned interest income from these in a number of SC and CTA cases, refers only to the
deposits and the Agent Banks deducted final carry-over option. If you choose the refund or
withholding taxes. Claiming that it was exempt from application of a tax credit certificate, this is still
final withholding taxes under its franchise, PAL filed revocable. You can still later on change your mind and
with the Commissioner a written request for a tax choose carry-over.
refund of the withheld amounts. The Commissioner
failed to act on the request. Thus, PAL elevated the Once you choose carry-over, you can no longer
case to the Court of Tax Appeals in Division. change that option because the irrevocability principle
is on the carry-over. If you initially set a refund then
PAL failed to adequately substantiate its claim you can still change your mind and select carry-over
because it did not prove that the Agent Banks, with because it is not irrevocable.
the exception of JPMorgan, remitted the withheld
amounts to the BIR.
University Physicians Services (Management) v.
CIR [2018]
Remittance need not be proven. PAL needs only to
prove that taxes were withheld from its interest
UPSI-MI opted the initial option to refund its 2006
income.
excess creditable tax. However, UPSI-MI
subsequently indicated in its 2007 Original ITR that
PAL is entitled to a refund because it is not
it carried over the 2006 excess creditable tax and
responsible for the remittance of tax to the BIR.
applied the same against its 2007 income tax due.
The taxes on interest income from bank deposits are
in the nature of a withholding tax. Thus, the party
Can it still be allowed to apply for refund of the
liable for remitting the amounts withheld is the
2006 excess creditable withholding tax?
withholding agent of the BIR.
UPSI-MI may not cause the refund or the
In the case at bar, PAL is the income earner and the
issuance of a tax credit certificate for its 2006
payee of the final withholding tax, and the Agent
excess tax credits since it opted to choose the
Banks are the withholding agents who are the payors
carry-over method in its 2007 Original ITR.
responsible for the deduction and remittance of the
tax. The failure of the Agent Banks to remit the
The last paragraph of Sec. 76 states:
amounts does not affect and should not prejudice
PAL. In case of failure of remittance of taxes, the
In case the corporation is entitled to a tax
Bureau of Internal Revenue's cause of action is
credit or refund of the excess estimated
against the Agent Banks. Thus, PAL is not obliged to
quarterly income taxes paid, the excess
remit, let alone prove the remittance of, the taxes
amount shown on its final adjustment return
withheld.
may be carried over and credited against
the estimated quarterly income tax
To claim a refund, this Court rules that PAL needs
liabilities for the taxable quarters of the
only to prove that taxes were withheld.
succeeding taxable years. Once the
Certificates of Final Taxes Withheld issued by the
option to carry-over and apply the
Agent Banks are sufficient evidence to establish
excess quarterly income tax against
the withholding of the taxes.
income tax due for the taxable quarters
of the succeeding taxable years has
When taxes were withheld and deducted from its
been made, such option shall be
income, PAL is deemed to have paid them.
considered irrevocable for that taxable
Considering that PAL is exempted from paying the

period and no application for cash that the irrevocable option is limited only to the
refund or issuance of a tax credit option of carry-over option. There appears
certificate shall be allowed therefor. nothing from which it can be inferred that the
refund or tax credit certificate is also irrevocable.
There are two options available to the corporation Thus, the law does not prevent a taxpayer who
whenever it overpays its income tax: originally opted for a refund or tax credit
certificate from shifting to the carry-over of the
(1) to carry-over and apply the overpayment excess creditable taxes to the taxable quarters
as tax credit against the estimated quarterly of the succeeding taxable years. However, in
income tax liabilities of the succeeding case the taxpayer decides to shift its option to
taxable years until fully utilized; and carry-over, it may no longer revert to its original
choice due to the irrevocability rule.
(2) to apply for a cash refund or the issuance
of a tax credit certificate.
A reading of the last paragraph of Sec. 76 discloses
TAX REFUND UNDER SECTION 229 VS. SECTION 112
Section 229 Section 112
Tax sought to be Excessively or erroneously collected taxes Input tax attributable to zero-rated sales
refunded
Inclusion in the Both administrative claim with the BIR and Only the administrative claim with the BIR
2-year prescriptive judicial claim with the CTA must be filed is required to be filed within the 2-year
period within the 2-year prescriptive period prescriptive period. Judicial claim with the
CTA can be filed outside the 2-year
prescriptive period provided that the
administrative claim was filed on time
Reckoning point of From the payment of tax sought to be From the close of the taxable quarter when
the 2-year refunded the relevant zero-rated sales were made
prescriptive period
Period of time for the No specific period so long as Within the 90-day period days from the
BIR to decide on the administrative claim and judicial claim is date of submission of the official receipts
claim made within the 2-year prescriptive period or invoices and other documents in
support of the application for refund
SECTION 112 [VAT] petition for review with the CTA?
Under Sec. 112 [in contrast with Sec. 229], the 2-year ○ The taxpayer should file a petition for
prescriptive period is limited only to the filing of the review with the CTA within 30 days
administrative claim. The judicial claim may be filed from the earlier of:
beyond the 2-year period, provided, there is
observation of the 90+30-day period. 1. Expiration of the 90-day
period; or
What is that 90+30 day period?
2. From receipt of the
■ Once the admin claim is filed within the 2-year unfavorable decision of the
prescriptive period, the BIR is given 90 days BIR denying the
to decide. administrative claim for
refund.
When should the taxpayer elevate the
protest or the judicial action or file a ■ This is the most important rule in this section
— The 90+30 day period is mandatory and

jurisdictional.
appeal, the aggrieved party may file
appropriate proceedings with a court of
Ex1. Assuming BIR issued a decision denying the
competent jurisdiction.
claim for refund on day 50, the taxpayer filed a
petition for review on day 85. Is the petition for
Note: Appeal shall not have the effect of
review with the CTA filed on time?
suspending the effectivity of the ordinance and
the accrual and payment of the tax, fee, or
■ No, because your reckoning point is upon the
charge levied.
expiration of the 90-day period or the receipt
of the decision of the BIR, whichever comes
first. Alin ang nauna? Nauna yung receipt of
the decision of the BIR. Receipt of the How will a taxpayer assail the validity of a tax
decision is on day 50, so you add 30. You ordinance?
should then be filing a petition for review on or
before day 80. Remember the 30-60-30 period governed by Sec.
187.
Ex2. The BIR rendered an unfavorable decision on
the tax refund claim on day 100. The taxpayer filed ■ Within 30 days from the effectivity of the
a petition for review on day 135. The filing of ordinance, file an appeal with the SOJ.
petition for review on day 135 is within the 2-year
prescriptive period from the close of the taxable ■ The SOJ will have 60 days to decide.
quarter, under Sec 112. Is the petition filed on
time? ■ Within 30 days from the receipt of the
decision or from the lapse of 60-day period,
■ No. Here, the expiration of the 90-day period the recourse would be to file an appeal with
came in first because the decision was only the court of competent jurisdiction.
received on day 100. So you count 90 + 30,
◆ The LGC made use of the term “court
the CTA petition should be filed on or before
of competent jurisdiction” because
day 120. In our case, it was filed on day 135,
the court who can take cognizance of
so it’s already filed beyond the reglementary
the case will depend on the type of
period for filing. So it will not matter whether
action that will be raised by the
the petition is filed within the 2-year
taxpayer.
prescriptive period because as held in many
cases, the observance of that 90+30-day
Is Sec. 187 constitutional?
period is both mandatory and jurisdictional.
■ YES. As explained in Drilon vs. Lim, the
B. Tax Remedies under the Local Government
appeal with the SOJ is an exercise of power of
Code of 1991
supervision. The SC is trying to explain that
when a certain matter is appealed with the
ASSAILING THE VALIDITY OF A TAX ORDINANCE SOJ regarding the constitutionality or legality
(30-60-30) of a tax ordinance, the SOJ is not exercising
control over the local Sanggunian. It is just
exercising the power of supervision which the
Section 187. Procedure for Approval and Effectivity president may exercise over LGUs under Sec.
of Tax, Ordinances and Revenue Measures; 4, Art. X of the Constitution.
Mandatory Public Hearings. – xxxxxxxx any
question on the constitutionality or legality of tax ■ REMEMBER: Appeal to the SOJ is not an
ordinances or revenue measures may be raised: exercise of control of the executive branch
over the legislative branch; it is the exercise of
a. on appeal within 30 days from the power of the president under Sec. 4, Art. X of
effectivity thereof to the Secretary of the Constitution.
Justice;
■ The SC in this case further clarified that it is
b. the Secretary of Justice shall render a not power of control because the SOJ has no
decision within 60 days from the date of say on the wisdom or reasonableness of the
receipt of the appeal; tax ordinance. It only reviews the
constitutionality and legality of the measure.
c. within 30 days after receipt of the decision But as to the wisdom or reasonableness, the
or the lapse of the sixty-day period without SOJ will not touch on that matter.
the Secretary of Justice acting upon the

receipt of the notice of assessment, the

Cagayan Electric Power and Light Co. vs. City of
taxpayer may file a written protest with the
Cagayan (2012)
local treasurer to contest the assessment. The
local treasurer will be given 60 days to decide
There was a tax ordinance passed by the LGU. The
on the written protest. Within 30 days from the
taxpayer filed a Petition for Declaratory Relief before
receipt of the denial or from the lapse of
the RTC.
60-day period the recourse would be to file an
appeal with the court of competent
The SC held in this case that the petition cannot
jurisdiction.
prosper because there is no exhaustion of
administrative remedies. Under Sec. 187, it was very
◆ Note: In Sec. 187, the reckoning point
clear that the appeal should be made with the SOJ
is from the effectivity of the ordinance,
before the matter could be elevated with a court of
here, the reckoning point would be the
competent jurisdiction.
receipt of the notice of assessment
from the local treasurer.
PROTESTING AN ASSESSMENT (60-60-30)
◆ Court of competent jurisdiction: If
the case involves an assessment = If
Section 195. Protest of Assessment. - When the the amount of claim exceeds P2M,
local treasurer or his duly authorized representative then the appeal would have to be filed
finds that correct taxes, fees, or charges have not with the RTC. Otherwise, if it is P2M
been paid, he shall issue a notice of assessment and below it should be filed with the
stating the nature of the tax, fee, or charge, the MTC.
amount of deficiency, the surcharges, interests and
penalties. REFUND
a. Within 60 days from the receipt of the

notice of assessment, the taxpayer may Section 196. Claim for Refund of Tax Credit. - No
file a written protest with the local case or proceeding shall be maintained in any
treasurer contesting the assessment; court for the recovery of any tax, fee, or charge
otherwise, the assessment shall become erroneously or illegally collected until a written
final and executory. claim for refund or credit has been filed with the
local treasurer. No case or proceeding shall be
b. The local treasurer shall decide the protest entertained in any court after the expiration of
within 60 days from the time of its filing. two (2) years from the date of the payment of
such tax, fee, or charge, or from the date the
c. The taxpayer shall have 30 days from the taxpayer is entitled to a refund or credit.
receipt of the denial of the protest or
from the lapse of the 60 day period
prescribed herein within which to appeal
with the court of competent jurisdiction ■ Under Sec. 196, the applicable period to claim
otherwise the assessment becomes for refund is 2 years from the date of
conclusive and unappealable. payment. Just like Sec. 229 of the NIRC,
covers both the judicial and administrative
claim because Sec. 196 provides that no case
■ Under Sec. 195, there is no issue on the or proceeding shall be entertained after the
legality or validity of the tax ordinance. The expiration of the 2-year period from the date
taxpayer is questioning the assessment or the of payment.
computation of tax by the local treasurer. This
is tantamount to questioning the FAN and ■ Unlike Sec. 195, Sec. 196 does not provide
PAN, this is the counterpart in local taxation. for a period by which the local treasurer
can decide on a claim for refund. There is
■ When the local treasurer or its duly authorized no reglementary period to issue the decision
representative finds that correct charges, fees, on the written claim for refund. But the
or taxes have not yet been paid, he shall issue important thing is, like Sec. 229 of the Tax
a notice of assessment stating the nature of Code, if the 2-year period is about to lapse,
the tax, fee, or charge, the amount of the taxpayer should institute an action already
deficiency, surges, interests and penalties. with the court of competent jurisdiction.
■ 60-60-30 Period: Within 60 days from the What would be your determining factor whether to

apply Sec. 195 and Sec. 196? against a notice of assessment issued by the local
treasurer, upon a finding that the correct taxes, fees,
■ If the taxpayer receives an assessment and or charges have not been paid. The notice of
does not pay the tax, its remedy is strictly assessment must state "the nature of the tax, fee, or
confined to Section 195 of the Local charge, the amount of deficiency, the surcharges,
Government Code. On the other hand, if no interests and penalties. “No such notice of
assessment notice is issued by the local assessment is necessary for a claim for refund
treasurer, and the taxpayer claims that it pursuant to Section 196.
erroneously paid a tax, fee, or charge, or that
the tax, fee, or charge has been illegally Here, no notice of assessment for deficiency taxes
collected from him, then Section 196 applies. was issued by respondent City Treasurer to petitioner
for the taxes collected after the first three (3) quarters
ICTSI v. City of Manila (2018) of 1999. The "assessments" from the fourth quarter of
1999 onwards were Municipal License Receipts;
Sections 195 and 196 of the Local Government Code Mayor's Permit, Business Taxes, Fees & Charges
govern the remedies of a taxpayer for taxes collected Receipts; and Official Receipts issued by the Office of
by local government units, except for real property the City Treasurer for local business taxes, which
taxes. must be paid as prerequisites for the renewal of
petitioner's business permit in respondent City of
If the taxpayer receives an assessment and does not Manila. While these receipts state the amount and
pay the tax, its remedy is strictly confined to Section nature of the tax assessed, they do not contain any
195 of the Local Government Code. Thus, it must file amount of deficiency, surcharges, interests, and
a written protest with the local treasurer within 60 days penalties due from petitioner. They cannot be
from the receipt of the assessment. If the protest is considered the "notice of assessment" required under
denied, or if the local treasurer fails to act on it, then Section 195 of the Local Government Code.
the taxpayer must appeal the assessment before a
court of competent jurisdiction within 30 days from When petitioner paid these taxes and filed written
receipt of the denial, or the lapse of the 60-day period claims for refund before respondent City Treasurer,
within which the local treasurer must act on the the subsequent denial of these claims should have
protest. In this case, as no tax was paid, there is no prompted resort to the remedy laid down in Section
claim for refund in the appeal. 196, specifically the filing of a judicial case for the
recovery of the allegedly erroneous or illegally
If the taxpayer opts to pay the assessed tax, fee, or collected tax within the two (2)-year period.
charge, it must still file the written protest within the
60-day period, and then bring the case to court within
SUMMARY
30 days from either the decision or inaction of the
local treasurer. In its court action, the taxpayer may, at
1. With Notice of Section 195 (protest of
the same time, question the validity and correctness
Assessment and the assessment)
of the assessment and seek a refund of the taxes it
taxpayer did not pay
paid. "Once the assessment is set aside by the court,
under protest
it follows as a matter of course that all taxes paid
under the erroneous or invalid assessment are 2. With Notice of Section 195 (Protest of
refunded to the taxpayer." Assessment and the assessment and
taxpayer made pray for refund of tax
On the other hand, if no assessment notice is issued payment under paid)
by the local treasurer, and the taxpayer claims that it protest
erroneously paid a tax, fee, or charge, or that the tax,
fee, or charge has been illegally collected from him, 3. Without Notice of Section 196 (Claim for
then Section 196 applies. Assessment and refund)
taxpayer
The controversy here pertains to petitioner's erroneously paid the
entitlement to a refund of the taxes paid subsequent tax
to the third quarter of 1999, which was denied by the
Court of Tax Appeals Second Division (and affirmed
■ If the Local Treasurer will issue a notice of
by CTA en banc) on the ground that petitioner failed to
assessment and the taxpayer will not pay the
comply with the requirements of Section 195.
assessed tax under the Notice of Assessment,
then the remedy of the taxpayer will be
What determines the appropriate remedy is the local
Section 195, protest the assessment
government's basis for the collection of the tax. It is
(60-60-30 day period).
explicitly stated in Section 195 that it is a remedy

■ If the taxpayer will receive a notice of protest.

assessment and will pay the assessed tax
probably to get the business permit, then the Where an assessment is to be protested or disputed,
remedy of the taxpayer will still be Section the taxpayer may proceed (a) without payment, or (b)
195, protest the assessment. Since the with payment of the assessed tax, fee or charge.
taxpayer paid the assessed tax, it can pray for Whether there is payment of the assessed tax or not,
the refund of the tax paid. it is clear that the protest in writing must be made
within sixty (60) days from receipt of the notice of
■ If there is no notice of assessment and the assessment; otherwise, the assessment shall become
taxpayer erroneously paid (just like what final and conclusive. Additionally, the subsequent
happened in ICTSI, there is no notice of court action must be initiated within thirty (30) days
assessment. ICTSI just received the normal from denial or inaction by the local treasurer;
statement of account counting the normal otherwise, the assessment becomes conclusive and
business tax of ICTSI. That is not the notice of unappealable.
assessment contemplated. The notice of
assessment must contain the computation and the Where an assessment is issued, the taxpayer cannot
basis for the assessment), the remedy would be choose to pay the assessment and thereafter seek a
Section 196, claim for refund in which case refund at any time within the full period of two years
there is no need to observe the rule that the from the date of payment as Section 196 may
written protest be filed within 60 days. The suggest. If refund is pursued, the taxpayer must
important thing is that the claim for refund administratively question the validity or correctness of
must be instituted or must be filed with the the assessment in the 'letter-claim for refund' within
Local Treasurer within 2 years from the date of 60 days from receipt of the notice of assessment, and
payment. The appeal to courts must also be thereafter bring suit in court within 30 days from either
instituted within the 2 year period. decision or inaction by the local treasurer.
City of Manila v. Cosmos Bottling Corp. (2018) Simply put, there are two conditions that must be
satisfied in order to successfully prosecute an action
1. The filing of a motion for reconsideration or new for refund in case the taxpayer had received an
trial before the CTA Division is an indispensable assessment. One, pay the tax and administratively
requirement for filing an appeal before the CTA En assail within 60 days the assessment before the local
Banc. treasurer, whether in a letter-protest or in a claim for
refund. Two, bring an action in court within thirty (30)
Thus, in Asiatrust Development Bank, Inc. v. days from decision or inaction by the local treasurer,
Commissioner of Internal Revenue (Asiatrust), we whether such action is denominated as an appeal
declared that a timely motion for reconsideration or from assessment and/or claim for refund of
new trial must first be filed with the CTA Division that erroneously or illegally collected tax.
issued the assailed decision or resolution in order for
the CTA En Banc to take cognizance of an appeal via Cosmos may resort to, as it actually did, the
a petition for review. Failure to do so is a ground for alternative procedure of seeking a refund after timely
the dismissal of the appeal as the word "must" protesting and paying the assessment. Considering
indicates that the filing of a prior motion is mandatory, that Cosmos initiated the judicial claim for refund
and not merely directory. within 30 days from receipt of the denial of its protest,
it stands to reason that the assessment which was
2. A taxpayer who had protested and paid an validly protested had not yet attained finality.
assessment may later on institute an action for
refund. PERIOD TO ASSESS AND COLLECT UNDER
SECTION 194
When a taxpayer is assessed a deficiency local tax,
fee or charge, he may protest it under Section 195 General rule: Local taxes, fees, or charges shall be
even without making payment of such assessed tax, assessed within five (5) years from the date they
fee or charge. This is because the law on local became due.
government taxation, save in the case of real property
tax, does not expressly require "payment under Local taxes, fees, or charges may be collected within
protest" as a procedure prior to instituting the five (5) years from the date of assessment by
appropriate proceeding in court. This implies that the administrative or judicial action.
success of a judicial action questioning the validity or
correctness of the assessment is not necessarily Exception: In case of fraud or intent to evade the
hinged on the previous payment of the tax under payment of taxes, fees, or charges, the same may be
assessed within ten (10) years from discovery of the

fraud or intent to evade payment. already instituted writ of garnishment,

it may still push with the filing of a
In case of regular assessment, 5 + 5 (5 years for judicial action if the amount collected
assessment and 5 years for collection). In case of via the issuance of writ of
extraordinary, 10 + 5 (10 years for assessment from garnishment is not sufficient enough
discovery and another 5 years for collection). to cover the assessed tax by the local
government.
REMEDIES AVAILABLE TO THE LOCAL What is the court of competent jurisdiction if the
GOVERNMENT local treasurer will be filing the collection case
with the court?
Section 173. Local Government's Lien. - Local
taxes, fees, charges and other revenues constitute a Observe the 2 Million jurisdictional amount.
lien, superior to all liens, charges or encumbrances
in favor of any person, enforceable by appropriate ■ If the amount sought to be collected exceeds
administrative or judicial action, not only upon any 2 Million, the collection case should be filed
property or rights therein which may be subject to the with the RTC.
lien but also upon property used in business,
occupation, practice of profession or calling, or ■ If the amount sought to be collected is 2
exercise of privilege with respect to which the lien is Million or below, the collection case should
imposed. The lien may only be extinguished upon full be with the MTC.
payment of the delinquent local taxes fees and
charges including related surcharges and interest.
C. The Court of Tax Appeals (R.A. 1125, as
amended, and the
Compared with tax lien under NIRC — In NIRC, tax
Revised Rules of the Court of Tax Appeals)
lien observes the priority of lien. On the other hand,
1. Jurisdiction
under Sec. 173 of LGC, it was emphasized that the
Local Government's Lien is superior to all other liens.
EXCLUSIVE APPELLATE JURISDICTION
■ Example: A mortgage was annotated first than
■ Filed with CTA Division via Petition for Review
the tax lien of the BIR. Here, the preference of
under Rule 42
lien will be observed. So the debtor which
annotated the mortgage will have preference
1) DECISIONS or INACTION of the
on the asset of the taxpayer. That is in the
Commissioner of Internal Revenue in cases
case of national taxes. However, in Sec. 173,
involving (a) disputed assessments, (b)
it provides that the Local Government's Lien is
refunds of internal revenue taxes, fees or
superior to all other liens regardless of
other charges, penalties in relation thereto, or
whether there are prior liens annotated in the
(c) other matters arising under the National
title of the property.
Internal Revenue or other laws
administered by the Bureau of Internal
How will the LGU enforce the assessed tax, or how
Revenue.
will the LGU collect the assessed tax?
➔ Note: Where the Tax Code provides a
■ The remedy in national taxes for the
specific period of action, the inaction of
enforcement of collection is actually the same
the BIR shall be deemed a denial.
for local taxes. It may be through
administrative action or judicial action.
2) Decisions, orders or resolutions of the
Regional Trial Courts in local tax cases
■ The administrative action may take the form of
originally decided or resolved by them in the
warrant of distraint or writ of garnishment or
exercise of their original jurisdiction.
levy upon the real properties.
➔ If a particular local tax case was filed
■ The judicial action may be by instituting a
originally with the RTC and the RTC will
money claim against the taxpayer.
issue an unfavorable decision, the next
recourse is appeal to the CTA division.
■ NOTE: The remedies may be availed
concurrently or simultaneously at the
➔ Jurisdiction of the CTA Division via
discretion of the local government.
petition for review under Rule 42 covers
decisions, orders or resolutions of the
◆ So even if the local government
Regional Trial Courts in local tax cases

originally decided or resolved by them in decided by the provincial or city board of

the exercise of their original jurisdiction. assessment appeals involving the
assessment and taxation of real property.
➔ If the RTC decides a local tax case in the
exercise of the appellate jurisdiction, the ➔ This refers to real property tax cases
filing of the petition for review from the (RPT).
favorable decision of the RTC will no
longer pass to the CTA Division, it will go ➔ RPT cases are usually appealed first to
directly to the CTA En Banc. the Treasurer and then the Local Treasurer
will issue a decision. Upon the decision or
3) Decisions of the Commissioner of Customs inaction of the Treasurer it will be
in cases involving liability for customs duties, appealed to the Local Board of
fees or other money charges, seizure, Assessment Appeals (LBAA). The
detention or release of property affected, recourse would be first LBAA (an
fines, forfeitures or other penalties in relation administrative body) and upon the
thereto, or other matters arising under the unfavorable decision of the LBAA the
Customs Law or other laws administered matter will be appealed to the Central
by the Bureau of Customs. Board of Assessment Appeals (CBAA).
4) Decisions of the Secretary of Finance on ➔ If the local or real property tax issue was
customs cases elevated to him automatically subject already of appellate jurisdiction,
for review from decisions of the Commissioner either by the RTC or the CBAA, it need not
of Customs which are adverse to the be filed with the CTA Division for another
Government under Section 2315 of the Tariff appeal. So, the filing is already with the
and Customs Code. CTA En Banc because there is already a
level of review that occurred.
5) Decisions of the Secretary of Trade and
Industry, in the case of nonagricultural The City Of Manila v. Hon. Grecia-Cuerdo [2014]
product, commodity or article, and the
Secretary of Agriculture in the case of The City of Manila assessed local business taxes
agricultural product, commodity or article, against Talin Company. Claiming that there is double
involving dumping and countervailing duties taxation, Talin Company filed a Complaint for Refund
under Section 301 and 302, respectively, of or Recovery of Illegally and/or Erroneouslycollected
the Tariff and Customs Code, and safeguard Local Business Tax; Prohibition with Prayer to Issue
measures under Republic Act No. 8800, Temporary Restraining Order and Writ of Preliminary
where either party may appeal the decision to Injunction with the RTC. The RTC denied the
impose or not to impose said duties. application for a Writ of Preliminary Injunction. Since
its motion for reconsideration was denied, Talin
■ Filed with CTA En Banc via Petition for Review Company filed a special civil action for certiorari with
under Rule 43 the CA. The government lawyer representing the City
of Manila prayed for the dismissal of the petition on
1) Decisions, orders or resolutions of the the ground that the same should have been filed with
Regional Trial Courts in local tax cases the CTA. Talin Company, countered that the CTA
originally decided or resolved by them in the cannot entertain a petition for certiorari since it is not
exercise of their appellate jurisdiction. one of its powers and authorities under existing laws
and rules. Decide. (2014 Bar)
➔ The local tax case was filed originally with
the MTC then the taxpayer appealed the While there is no express grant of such power, with
unfavorable decision of the MTC to the respect to the CTA, Section 1, Article VIII of the 1987
RTC. RTC sustained the MTC, the RTC Constitution provides, nonetheless, that judicial power
decided on the local tax case in the shall be vested in one Supreme Court and in such
exercise of its appellate jurisdiction. So if lower courts as may be established by law and that
you will appeal the decision of the RTC, judicial power includes the duty of the courts of
your recourse will not be to the CTA justice to settle actual controversies involving rights
Division but with the CTA En Banc. It will which are legally demandable and enforceable, and
be a petition for review under Rule 43 and to determine whether or not there has been a
not a petition for review under Rule 42. grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
2) Decisions of the Central Board of instrumentality of the Government.
Assessment Appeals in the exercise of its
appellate jurisdiction over cases originally

On the strength of the above constitutional provisions, the CTA, then any other ancillary cases would
it can be fairly interpreted that the power of the CTA be in aid of the appellate jurisdiction of the
includes that of determining whether or not there CTA.
has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the ➔ Illustration: In the case of City of Manila, the
RTC in issuing an interlocutory order in cases case filed is a complaint for refund or recovery
falling within the exclusive appellate jurisdiction of of illegally or erroneously collected local
the tax court. It, thus, follows that the CTA, by business tax. So, the main case is a refund
constitutional mandate, is vested with jurisdiction to case, a local tax case claiming for refund with
issue writs of certiorari in these cases. prayer for issuance of writ of injunction. The
RTC denied the application for writ of
If a case is appealable to the CTA, then it has preliminary injunction. Application for writ of
jurisdiction to issue the extraordinary writ of certiorari, preliminary injunction is an ancillary remedy
in aid of its appellate jurisdiction. hence the next step is to file a petition for
certiorari, it cannot be an appeal because it is
not the main case, it is just the ancillary
Business tax is NOT one of those that I mentioned as remedy.
national taxes; it is NOT income, NOT estate, donors,
VAT, percentage, documentary nor an excise, so Will the special civil action for certiorari
kapag nakakita kayo ng certain form of tax and it is questioning the denial of the writ of
not one of the seven mentioned, most likely it is a preliminary injunction be in aid of the
local tax. appellate jurisdiction of the CTA? YES.
Because the main case is a refund case and if
Can CTA exercise jurisdiction over a Petition for this will be decided and ruled against the
Certiorari even if Petition for Certiorari is not taxpayer, the remedy would be appeal to the
expressly listed under RA 1125, and even if Petition CTA.
for Certiorari is not explicitly defined as one of
those cases that the CTA can exercise jurisdiction? Philippine Ports Authority v. City of Davao [2018]
➔ Yes. The CTA has jurisdiction to entertain the The case is assessment of real property tax which is a
Petition for Certiorari. The legal basis is the local tax. PPA went through the administrative process
provision in the 1987 Constitution stating that by filing an appeal with the LBAA, denied by the
judicial power shall be vested in one SC and LBAA, and elevated the matter to the CBAA, denied
in such lower courts as may be established by by the CBAA. Thus, it filed an appeal with the CTA En
law. CTA falls under that provision ‘such lower Banc.
courts as may be established by law’ because
CTA is created by virtue of RA 1125. Likewise, Despite the pendency of the petition with the CTA en
the judicial power includes the duty of the banc, the City of Davao initiated its collection efforts.
courts of justice to settle actual controversies Thus, PPA filed a petition for certiorari with the Court
involving rights which are legally demandable of Appeals, arguing that the City of Davao's taxation
and enforceable AND to determine whether or of its properties and their subsequent auction and
not there has been grave abuse of discretion sale to satisfy the alleged tax liabilities were without or
amounting to lack or excess of jurisdiction on in excess of its jurisdiction and contrary to law.
the part of any branch or instrumentality of the
government. This judicial power is vested not Does the Court of Appeals have jurisdiction over the
only to the SC, but also with lower courts petition of Philippine Ports Authority?
created by law such as the CTA.
Section 7, paragraph (a)(5) of Republic Act No. 1125,
➔ Best answer: Jurisprudence provides that if a as amended by Republic Act No. 9282, provides that
case would be in aid of the appellate the Court of Tax Appeals has exclusive appellate
jurisdiction of the CTA, then the CTA can jurisdiction over decisions of the Central Board of
exercise jurisdiction even if that case is not Assessment Appeals in the exercise of its appellate
expressly included under RA1125. jurisdiction over cases involving the assessment and
taxation of real property originally decided by the
When can you say whether a case is in aid of the provincial or city board of assessment appeals.
appellate jurisdiction of the CTA?
In transferring exclusive jurisdiction over appealed tax
➔ A case would be in aid of the appellate cases to the CTA, it can reasonably be assumed that
jurisdiction of the CTA if the main case or the the law intended to transfer also such power as is
main issue, when appealed, will be filed with deemed necessary, if not indispensable, in aid of such

appellate jurisdiction. Upon the unfavorable decision of the CIR,

what will be the next recourse?
Since appellate jurisdiction over private respondents'
complaint for tax refund is vested in the CTA, it ● File an appeal with the Sec. of
follows that a petition for certiorari seeking nullification Finance because the decision of the
of an interlocutory order issued in the said case CIR is subject to review by the Sec. of
should, likewise, be filed with the same court. Finance.
Collector v. Yuseco [1961] What if the Sec. of Finance issued an

unfavorable decision as well? Or the one
The taxpayer, Yuseco, did not file income tax returns asking for a clarification is not amenable to
for a certain period. The BIR assessed and demanded the ruling of the Sec. of Finance, what
a certain sum from Yuseco. Yuseco requested would be the next recourse?
reinvestigation but the BIR denied. BIR issued a
warrant of distraint and levy upon the properties of ● Filing of a Petition for Review with the
Yuseco. Yuseco then filed a petition for prohibition CTA Division under Rule 42. The
before the CTA. The CTA ruled in favor of Yuseco and decision of the Sec. of Finance is
declared the warrant of distraint and levy as null and subject to appeal to the CTA Division
void. The BIR argued that under the tax code the under Rule 42. This is the
taxpayer cannot bring in the CTA an independent civil quasi-legislative power of the CIR.
action for prohibition without taking to said court an
appeal. 2) The power to decide disputed assessments,
refunds of internal revenue taxes, fees or other
Will an independent special civil action for prohibition charges, penalties imposed in relation thereto, or
brought before the CTA under Sec. 11 of R.A, No. other matters arising under this Code or other
1125 prosper? laws or portions thereof administered by the
Bureau of Internal Revenue is vested in the
The special civil action for prohibition will not prosper Commissioner, subject to the exclusive
because the CTA has no jurisdiction to entertain the appellate jurisdiction of the Court of Tax
same. The power to issue writ of injunction Appeals. [QUASI-JUDICIAL POWER]
provided for under Section 11 of RA 1125 is only
ancillary to its appellate jurisdiction. The CTA is not ➔ The recourse is to the CTA Division, we do
vested with original jurisdiction to issue writs of not go to the Sec of Finance anymore. So,
prohibition or injunction independently of and if you’re talking of assessments, refunds,
apart from an appealed case. The remedy is to the matter will be filed first with the BIR.
appeal the decision of the BIR. That’s the reason why you are filing a
protest letter with the BIR first, because
POWER OF THE COMMISSIONER TO INTERPRET the original jurisdiction is with the BIR.
TAX LAWS AND TO DECIDE TAX CASES (Section 4, Upon an unfavorable decision of the BIR,
NIRC) the next recourse is to file an appeal with
the Court of Tax Appeals.
1) The power to interpret the provisions of this
Code and other tax laws shall be under the The Philippine American Life and General
exclusive and original jurisdiction of the Insurance Company vs. The Secretary of Finance
Commissioner, subject to review by the and the Commissioner of Internal Revenue [2014]
Secretary of Finance. (note: the provision refers
to administrative issuances such as revenue The CIR’s power to interpret the provisions of the Tax
orders, revenue memorandum circulars, or rulings) Code and other tax laws is subject to review by the
[QUASI-LEGISLATIVE POWER] Secretary of Finance. An adverse ruling of the
Secretary may be appealed to the CTA, which has
➔ Assuming the BIR has issued a particular jurisdiction over “other matters” arising under the Tax
revenue issuance, if this revenue issuance is Code or other laws administered by the BIR.
inconsistent with the provision of the law, the
taxpayer can question that revenue issuance. Here, the jurisdiction properly lies with the CTA, not
The recourse will be the taxpayer filing a the CA. The SC said in this case that the unfavorable
request with the BIR because the ruling of the Sec of Finance involving clarification on
Commissioner of Internal Revenue has the whether the taxpayer will be subject to donor’s tax
exclusive jurisdiction to interpret the Tax Code falls under the phrase “other matters arising under the
and other tax laws. Tax Code”. Since it falls under this phrase, then the
next recourse should be with the CTA via a Petition for

Review. 2. If the amount exceeds 2M, the case

falls under the jurisdiction of the RTC.
Banco De Oro v. Republic [2016]
SCENARIO: Assuming that this is a case for
In this case, the BIR issued a ruling against BDO in the Tax Evasion. The amount of deficiency tax is
exercise of a quasi-legislative power of the BIR. BDO 3M. Where should you file it: directly with the
filed a petition for certiorari directly with the SC. Note CTA or with the RTC?
that the BIR Ruling was not subjected to review by the
Sec of Finance and it was not even appealed to the ◆ Atty. LJM believes that if the amount
CTA. It was appealed directly to the SC. involved is 3M, then the criminal case
should be filed directly with the CTA
Can the direct petition to the SC be acted upon? Div. in the exercise of its original
jurisdiction.
General rule is that the petition cannot be acted upon
because there is proper hierarchy that must be 2) Appeal from the decision of the CTA Division shall
followed. However, in this case the SC acted upon the be made to the CTA En Banc.
petition because of the gravity of the issue, and the
materiality of the amount involved. 3) Any provision of law or the Rules of Court to
the contrary notwithstanding,
Discussion of jurisdiction of CTA:
a) the criminal action and the
Within the judicial system, the law intends the corresponding civil action for the
Court of Tax Appeals to have exclusive jurisdiction recovery of civil liability for taxes and
to resolve all tax problems. Petitions for writs of penalties shall at all times be
certiorari against the acts and omissions of the simultaneously instituted with, and
said quasi-judicial agencies should, thus, be filed jointly determined in the same
before the Court of Tax Appeals. Except for local proceeding by the CTA,
tax cases, actions directly challenging the
constitutionality or validity of a tax law or b) the filing of the criminal action being
regulation or administrative issuance may be filed deemed to necessarily carry with it the
directly before the Court of Tax Appeals. filing of the civil action, and
With respect to local taxes, questioning the c) no right to reserve the filling of such
constitutionality or validity of a local tax case should civil action separately from the criminal
be subject of a review first by the Secretary of Justice, action will be recognized.
and cannot go directly to the Courts. But for all other
tax cases, if the issue is constitutionality or validity, it NOTE: There is no right to reserve the filing of
will fall under the jurisdiction of the CTA. the civil action recognized in Tax cases.
JURISDICTION OVER CASES INVOLVING Rule in Tax cases: The criminal action and
CRIMINAL OFFENSES the corresponding civil action shall be
instituted simultaneously. There can be no
1) Offenses or felonies shall be tried by the regular right to reserve the filing of the civil action
Courts and the jurisdiction of the CTA Division separately from the criminal action.
shall be appellate
In the Bar exam, the scenario was for
a) where the principal amount of taxes and reserving the right to file a separate civil
fees, exclusive of charges and penalties, action. The suggested answer there is that
claimed is less than One million pesos there can be no right to file the civil aspect
(P1,000,000.00); or separately from the criminal aspect.
b) where there is no specified amount JURISDICTION OVER TAX COLLECTION CASES

claimed.
Collection cases where the principal amount of taxes
Under R.A. No. 11576, the jurisdictional and fees, exclusive of charges and penalties, claimed
amount is adjusted to two (2) million: is less than One million pesos (P1,000,000.00) shall be
tried by the proper Municipal Trial Court, Metropolitan
1. If the amount is 2M or less, it will fall Trial Court and Regional Trial Court.
under the jurisdiction of the lower
courts (i.e., MTC, MeTC). HYPOTHETICAL EXAMPLE: There is an ongoing
assessment by the BIR against the Taxpayer (TP). TP

filed a tax protest, which was later denied. TP did not Php1M, it can be filed directly before
file an appeal with the CTA nor elevated the matter to the CTA. Do you see the gray area
the BIR Commissioner. In short, the assessment made here? But I subscribe to the belief that
by the BIR became final and executory. the Php1M threshold should be
applied because R.A. 1125 is a
If you are the BIR, what would be your next course special law compared to R.A.
of action? 11576.
● File a collection case with the court. 2. Procedures

a. Civil Cases
Assuming that the deficiency tax is 500k. Where i. Internal Revenue taxes
should you file the collection suit?
REVIEW OF CASES IN THE COURT EN BANC
● File it with the MTC/MeTC on the basis of RA
11576. ■ In cases falling under the exclusive appellate
jurisdiction of the Court en banc, the petition
○ Under RA 11576, the jurisdictional for review of a decision or resolution of the
amount has been adjusted to 2M. Court in Division must be preceded by the
filing of a timely motion for reconsideration or
○ Cases involving an amount not new trial with the Division.
exceeding 2M shall be filed with the
MTC. WHO MAY APPEAL; PERIOD TO FILE PETITION
○ Cases involving an amount which ■ A party adversely affected by a decision,

exceeds 2M shall be filed with RTC. ruling or the inaction of the Commissioner of
Internal Revenue on disputed assessments
Why is RA 11576 your basis? or claims for refund of internal revenue
taxes, or by a decision or ruling of the
● Because RA 1125 merely states that if the Commissioner of Customs, the Secretary
amount claimed is less than 1M, you file it of Finance, the Secretary of Trade and
with the MTC, MeTC and RTC without Industry, the Secretary of Agriculture, or a
mentioning what should be filed with the Regional Trial Court in the exercise of its
MTC/MeTC and what should be filed with the original jurisdiction may appeal to the Court
RTC. So you apply BP 129, which was by petition for review filed within thirty days
amended by RA 11576. after receipt of a copy of such decision or
ruling, or expiration of the period fixed by
The amount claimed by the BIR is 2.5M. Where law for the Commissioner of Internal
should you file the collection case? Revenue to act on the disputed
assessments.
● File it with the CTA because based on the
jurisdiction of the CTA, RA 1125, only ■ In case of inaction of the Commissioner of
collection suits wherein the basic tax Internal Revenue on claims for refund of
deficiency is less than 1M should be filed with internal revenue taxes erroneously or illegally
the MTC, MeTC, and RTC. collected, the taxpayer must file a petition for
review within the two-year period prescribed
◆ In the case of CIR vs. PAGCOR, the by law from payment or collection of the
Supreme Court applied the statutory taxes.
construction principle that a special
law prevails over a general law, even if ■ A party adversely affected by a decision or
the general law is a later law than the resolution of a Division of the Court on a
special one. motion for reconsideration or new trial may
appeal to the Court by filing before it a petition
◆ R.A. 1125 is a special law insofar as for review within fifteen days from receipt of
tax collection cases are concerned. a copy of the questioned decision or
What’s interesting here is if you apply resolution. Upon proper motion and the
the provisions of R.A. 11576 and RA. payment of the full amount of the docket and
1125, it seems like there is nothing left other lawful fees and deposit for costs before
to file before the RTC. It’s either by the expiration of the reglementary period
original filing would be before the herein fixed, the Court may grant an additional
MTC then appeal to RTC then CTA. Or period not exceeding fifteen days from the
if it exceeds the threshold amount of expiration of the original period within which

to file the petition for review. 042-10, issued on 04 May 2010)
■ A party adversely affected by a decision or Exception: The CTA can enjoin the collection of taxes
ruling of the Central Board of Assessment if the following requisites concur:
Appeals and the Regional Trial Court in the
exercise of their appellate jurisdiction may 1. When collection of tax may prejudice the
appeal to the Court by filing before it a petition interest of the government or the taxpayer;
for review within thirty days from receipt of a and
copy of the questioned decision or ruling.
2. The taxpayer is willing to deposit the amount
WHERE TO APPEAL; MODE OF APPEAL claimed or to file a surety bond for no more
than double the amount to be fixed by the
➔ An appeal from a decision or ruling or the court. (Section 11, RA 1125)
inaction of the Commissioner of Internal
Revenue on disputed assessments or claim Before CTA can issue an injunction, it must be able to
for refund of internal revenue taxes obtain first jurisdiction over the disputed assessment.
erroneously or illegally collected, the decision There can be no direct petition with the CTA for
or ruling of the Commissioner of Customs, the issuance of a TRO or writ of injunction. The important
Secretary of Finance, the Secretary of Trade & matter is that there must be a petition for review first
Industry, the Secretary of Agriculture, and the to question the disputed assessment. In that petition,
Regional Trial Court in the exercise of their include a prayer for the issuance of a temporary
original jurisdiction, shall be taken to the CTA restraining order (TRO). The injunction should be an
Division by filing before it a petition for review ancillary remedy only, it should not be the main action.
as provided in Rule 42.
Temporary restraining orders or injunctions issued by
➔ An appeal from a decision or resolution of the courts other than the Court of Tax Appeals against
Court in Division on a motion for the Bureau of Internal Revenue contrary to the
reconsideration or new trial shall be taken to foregoing provision should be annulled and cancelled
the CTA En Banc by petition for review as for lack of jurisdiction. (Revenue Memorandum Order
provided in Rule 43. No. 042-10, issued on 04 May 2010)
➔ An appeal from a decision or ruling of the The Supreme Court may issue injunction on
Central Board of Assessment Appeals or the exceptional cases questioning the constitutionality of
Regional Trial Court in the exercise of their a tax law.
appellate jurisdiction shall be taken to the CTA
En Banc by petition for review as provided in Angeles City v. Angeles Electric Corporation [2010]
Rule 43.
The SC ultimately ruled that the prohibition on
ii. Local taxes injunction only applies to national internal revenue
taxes and not local taxes, as there is no provision in
(discussed already: check tax remedies under LGC) the Local Government Code pertaining to such.
iii. Injunction not available to restrain collection; Spouses Pacquiao v. Court of Tax Appeals [April
exceptions 2016]
NO INJUNCTION RULE The Spouses Pacquiao filed a petition for review and
sought the suspension of the issuance of warrants of
General Rule: No court shall have the authority to distraint/levy. The CTA granted the motion and
grant an injunction to restrain the collection of any ordered the CIR to desist from collecting the
internal revenue tax, fee or charge imposed under the deficiency tax, provided, the spouses Pacquiao
NIRC of 1997, as amended. (Section 218, NIRC) deposit a cash bond equal to the assessment, which
was 3 Billion.
This prohibition shall apply to all collection activities,
including imposition and collection of taxes The SC enjoined the CTA resolution requiring the
prescribed in tax laws; issuance of warrants of posting of the bond but ordered the CTA to conduct a
distraint and garnishment, and/or levy on final preliminary hearing to determine whether the bond be
decisions of the Bureau of Internal Revenue on reduced or dispensed with.
disputed assessments, cases filed before the Court
of Tax Appeals, and the sale of property distrained In this case, the SC held that the CTA has the power
and garnished. (Revenue Memorandum Order No. to suspend the collection of taxes pursuant to

Section 11 of RA 1125. The CTA has ample authority ACTIONS

to issue injunctive writs to restrain the collection of
tax and to even dispense with the deposit of the ■ All criminal actions before the CTA in Division
amount claimed or the filing of the required bond, in the exercise of its original jurisdiction shall
whenever the method employed by the CIR in the be instituted by the filing of information in the
collection of tax jeopardizes the interests of a name of the People of the Philippines.
taxpayer for being patently in violation of the law.
■ The institution of the criminal action shall
The Supreme Court rationalized that the posting of interrupt the running of the period of
the bond requirement can be dispensed with when prescription.
the method employed by the BIR in the collection
of tax jeopardizes the interest of that taxpayer for ■ For violations of the NIRC and other laws
being in patent violation of the law. enforced by the BIR, the CIR must approve
the filing.
In this case, the Supreme Court found that the
method employed by the BIR is in patent violation of ■ For violations of the TC and other laws
the law because of the amount of bond required, enforced by the BOC, the COC must approve
which is more than double the net worth of the the filing.
spouses.
■ The criminal actions shall be conducted and
Tridharma Marketing Corp. v. Court of Tax Appeals prosecuted under the direction and control of
[June 2016] the public prosecutor.
The Court holds, however, that the CTA in Division ■ For violations of the NIRC and other laws
gravely abused its discretion under Section 11 enforced by the BIR and violations of the TCC
because it fixed the amount of the bond at nearly five and other laws enforced by the BOC, their
times the net worth of the petitioner without respective duly deputized legal officers may
conducting a preliminary hearing to ascertain whether conduct the prosecution.
there were grounds to suspend the collection of the
deficiency assessment on the ground that such FILING AN APPEAL
collection would jeopardize the interests of the
taxpayer. ■ An appeal to the CTA En Banc in criminal
cases decided by the RTC in the exercise of
How would we reconcile the ruling on Spouses its original jurisdiction shall be made by filing a
Pacquiao with the ruling in Tridharma? When can notice of appeal within 15 days from receipt of
the posting of bond requirement be dispensed a copy of the decision or final order with the
with? court which rendered the final judgment or
order appealed from and by serving a copy
■ The common denominator in both cases is upon the adverse party.
that the CTA failed to conduct a preliminary
hearing to determine whether the bond can be ■ An appeal to the CTA En Banc in criminal
reduced or dispensed with. cases decided by the CTA Division shall be
taken by filing a Petition for Review under Rule
■ The posting of the bond requirement, 43 within 15 days from receipt of the decision
therefore, can be dispensed with when the or resolution appealed from. The CTA may, for
CTA failed to conduct a preliminary hearing. A good cause, extend the time for filing of the
preliminary hearing to determine the amount Petition for an additional period not exceeding
of bond is a prerequisite. 15 days.
Can the TRO and writ of preliminary injunction be ■ An appeal to the CTA En Banc in criminal
considered null and void for being issued outside cases decided by the RTC in the exercise of
the jurisdiction of the RTC? their appellate jurisdiction shall be taken by
filing a Petition for Review under Rule 43
■ Yes because it is not valid under the No within 15 days from receipt of the
Injunction Rule (Sec. 218). decision/final order appealed from. Petition for
Review on Certiorari
b. Criminal Cases INCLUSION OF CIVIL ACTION IN CRIMINAL

ACTION
INSTITUTION AND PROSECUTION OF CRIMINAL
■ In cases within the jurisdiction of the Court,

the criminal action and the corresponding civil The CTA then rendered a resolution denying the
action for the recovery of civil liability for taxes motion for reconsideration of Asiatrust. Both BIR and
and penalties shall be deemed jointly Asiatrust filed a petition for review in the CTA en banc.
instituted in the same proceeding. The filing of
the criminal action shall necessarily carry with The SC in this case concluded that the CTA en banc
it the filing of the civil action. can exercise jurisdiction over the petition for review
filed by Asiatrust but the petition for review filed by
■ No right to reserve the filing of such civil BIR cannot be acted upon, for failing to follow the
action separately from the criminal action shall procedure.
be allowed or recognized.
An appeal to the CTA En Banc must be preceded
by the filing of a timely motion for reconsideration
3. Appeal to the CTA en banc or new trial with the CTA Division.
4. Petition for review on certiorari to the Supreme
Court The same is true in the case of an amended decision.
Section 3, Rule 14 of the CTA Rules defines an
APPEAL TO CTA EN BANC AND REVIEW BY amended decision as "[a]ny action modifying or
CERTIORARI OF SC reversing a decision of the Court en banc or in
Division." As explained in CE Luzon Geothermal
A party adversely affected by a ruling, order or Power Company, Inc. v. CIR, an amended decision is
decision of a Division of the CTA may file a motion for a different decision, and thus, is a proper subject of a
reconsideration or new trial before the same Division motion for reconsideration.
of the CTA within fifteen (15) days from notice thereof.
In this case, the CIR's failure to move for a
A party adversely affected by a resolution of a Division reconsideration of the Amended Decision of the
of the CTA on a motion for reconsideration or new CTA Division is a ground for the dismissal of its
trial, may file a petition for review with the CTA en Petition for Review before the CTA En Banc. Thus,
banc [within 15 days]. the CTA En Banc did not err in denying the CIR's
appeal on procedural grounds.
A party adversely affected by a decision or ruling of
the CTA en banc may file with the Supreme Court a Therefore, every time that there is a decision, be it the
verified petition for review on certiorari [within 15 days] original decision or the amended decision, before you
pursuant to Rule 45 of the 1997 Rules of Civil elevate the decision to the CTA en banc, the rule is
Procedure. that there should be filing of a motion for
reconsideration or motion for new trial.
This is the hierarchy:
The mere filing of a motion for reconsideration on an
● CTA division issues a decision original decision which was superseded by an
● Either parties will file motion for amended decision will not suffice for purposes of filing
reconsideration or motion for new trial a petition for review with the CTA en banc.
● The ruling of the CTA division on the motion
for reconsideration or new trial is called a
CIR vs. Kepco Corporation [2016]
“resolution”
● Petition for review before the CTA en banc
The CTA En Banc has no jurisdiction to take
● Petition for review on certiorari under Rule 45
cognizance of the petition for annulment of judgment
before the SC
filed by petitioner.
Asiatrust Development Bank, Inc. v. CIR [2017] It is the same situation among other collegial courts.
To illustrate, the Supreme Court or the Court of
In this case, the CTA division rendered a decision. Appeals may sit and adjudicate cases in divisions
There were portions of the decision which were consisting of only a number of members, and such
unfavorable to Asiatrust and there were also portions adjudication is already regarded as the decision of the
which were unfavorable to the BIR. Asiatrust filed a Court itself. The divisions are not considered
motion for reconsideration. BIR also filed a motion for separate and distinct courts but are divisions of
partial reconsideration. The CTA division rendered an one and the same court; there is no hierarchy of
amended decision. Asiatrust filed a motion for partial courts within the Supreme Court and the Court of
reconsideration of the amended decision of the CTA Appeals, for they each remain as one court
division. BIR did not file any motion for notwithstanding that they also work in divisions. The
reconsideration. Supreme Court sitting en banc is not an appellate
court vis-a-vis its divisions, and it exercises no

appellate jurisdiction over the latter. as the legal orders of the duly constituted authorities
therein; I will do no falsehood, nor consent to the doing
Thus, it appears contrary to these features that a of any in court; I will not wittingly or willingly promote
collegial court, sitting en banc, may be called or sue any groundless, false or unlawful suit, or give
upon to annul a decision of one of its divisions aid nor consent to the same; I will delay no man for
which had become final and executory, for it is money or malice, and will conduct myself as a lawyer
tantamount to allowing a court to annul its own according to the best of my knowledge and discretion,
judgment and acknowledging that a hierarchy with all good fidelity as well to the courts as to my
exists within such court. clients; and I impose upon myself these voluntary
obligations without any mental reservation or purpose
Thus, the Revised Rules of the CTA and even the of evasion. So help me God.”
Rules of Court which apply suppletorily thereto
provide for no instance in which the en banc may FOUR-FOLD DUTIES OF A LAWYER
reverse, annul or void a final decision of a division.
1) SOCIETY: A lawyer should not violate his
responsibility to society, exemplar for
uprighteousness, ready to render legal aid,
VI. PROCEDURE IN THE COURT OF APPEALS foster social reforms, guardian of due process,
aware of special role in the solution of special
A. Rule 44 – Ordinary Appealed Cases problems and be always ready to lend
assistance in the study and solution of social
B. Rule 46 – Original Cases problems.
C. Rule 47 – Annulment of Judgments or Final 2) COURT: Candor; Respect; Assist in the

Orders and Resolutions administration of justice; Refrain from
impropriety. [RICA]
D. Rule 50 – Dismissal of Appeal
3) PROFESSION: Maintain the dignity of the
E. Rule 51 – Judgment; harmless error profession; Courtesy towards fellow lawyers;
Fairness to fellow lawyers, Prevent
F. Rule 53 – New Trial unauthorized practice of law. [D-FUC]
VI. PROCEDURE IN THE SUPREME COURT 4) CLIENT: Make himself available;

Confidentiality; Loyalty; Fidelity; Fiduciary; Fair;
A. Rule 56-A – Original Cases Competence and diligence. [All- Clients- Love-
Fierce- Counsel]
B. Rule 56-B – Appealed Cases
Note: In answering case problems, always invoke the
lawyer’s oath, together with the appropriate canon and rule
violated, and the basis for penalty of suspension or
LEGAL ETHICS disbarment.
I. THE CODE OF PROFESSIONAL RESPONSIBILITY In disbarment proceedings, the burden of proof generally
rests upon the complainant, and for the court to exercise its
A. To society (Canons 1 to 6) disciplinary powers, the case against a respondent must be
established by clear. Convincing, and satisfactory proof.
B. To the legal profession (Canons 7 to 9) Likewise, in case a complainant withdraws his complaint
C. To the courts (Canons 10 to 13) against an erring lawyer, the case would still proceed.
D. To the clients (Canons 14 to 22) DUTY TO SOCIETY

E. Lawyer’s Oath
UNAUTHORIZED PRACTICE OF LAW: Practice of law is
CODE OF PROFESSIONAL RESPONSIBILITY any activity in or out of court, which requires the
application of law, legal procedure, knowledge, training,
and experience. Generally, to practice law is to give
LAWYER’S OATH advice or to render any kind of service, which advice or
service requires the use of any degree of legal
“I ________ of ________ do solemnly swear that I will knowledge or skill. Hence, the Supreme Court declared
maintain allegiance to the Republic of the Philippines; I that a lawyer-economist, a lawyer-manager, a
will support the Constitution and obey the laws as well lawyer-entrepreneur, a lawyer-negotiator of contracts,

and a lawyer-legislator of both rich and the poor are Rule 7.02 - A lawyer shall not support the application for
engaged in the practice of law (Cayetano v Monsod). admission to the bar of any person known by him to be
unqualified in respect to character, education, or other
When a suspended lawyer continues to practice law, relevant attributes.
despite being suspended or disbarred, he is engaged in
an unauthorized practice of law. ISSUING BOUNCING CHECKS: The issuance of checks
which were later dishonored for having been drawn
The practice of law is not a property right, but a mere against a closed account indicates a lawyer’s unfitness
privilege, and as such must bow to the interest of for the trust and confidence reposed on him. It shows
regulatory power of the Court to exact compliance with a lack of personal honesty and good moral character,
the lawyer’s public responsibilities (In Re: Edillon). as to render him unworthy of public confidence (Ong v
de los Santos)
Also, involves cases when a secretary or an individual
not entitled to practice law is tasked to sign on behalf When a lawyer receives money from the client for a
of a lawyer legal document (Tapay v Jarder). particular purpose, the lawyer is bound to render an
accounting to the client showing that the money was
Legal Bases in Answering: spent for that particular purpose. And if he does not
use the money for the intended purpose. The lawyer
CANON 1 - A LAWYER SHALL UPHOLD THE must immediately return the money to his client (Dizon
CONSTITUTION, OBEY THE LAWS OF THE LAND v De Taza).
AND PROMOTE RESPECT FOR LAW OF AND LEGAL
PROCESSES. Legal Bases in Answering:
Rule 1.01 - A lawyer shall not engage in unlawful, CANON 1 - A LAWYER SHALL UPHOLD THE
dishonest, immoral or deceitful conduct. CONSTITUTION, OBEY THE LAWS OF THE LAND
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR PROCESSES.
INDIRECTLY, ASSIST IN THE UNAUTHORIZED
PRACTICE OF LAW. Rule 1.01 - A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 9.01 - A lawyer shall not delegate to any unqualified
person the performance of any task which by law may only CANON 7 - A LAWYER SHALL AT ALL TIMES
be performed by a member of the bar in good standing. UPHOLD THE INTEGRITY AND DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE
FALSIFICATION IN APPLICATION TO THE ADMISSION ACTIVITIES OF THE INTEGRATED BAR.
TO THE BAR: An individual must possess all the
qualifications provided for by the law to be admitted to Rule 7.03 - A lawyer shall not engage in conduct that
the bar to the Bar. There are also some qualifications, adversely reflects on his fitness to practice law, nor shall he,
which must be continuously required from a lawyer, whether in public or private life, behave in a scandalous
such as but not limited to possession of good moral manner to the discredit of the legal profession.
character.
BORROWING MONEY FROM CLIENT: Time and again,
Legal Bases in Answering: the Court has consistently held that deliberate failure
to pay just debts constitutes gross misconduct, for
CANON 1 - A LAWYER SHALL UPHOLD THE which a lawyer may be sanctioned with suspension
CONSTITUTION, OBEY THE LAWS OF THE LAND from the practice of law. Lawyers are instruments for
AND PROMOTE RESPECT FOR LAW OF AND LEGAL the administration of justice and vanguards of our
PROCESSES. legal system. They are expected to maintain not only
legal proficiency, but also a high standard of morality,
Rule 1.01 - A lawyer shall not engage in unlawful, honesty, integrity and fair dealing so that the people’s
dishonest, immoral or deceitful conduct. faith and confidence in the judicial system is ensured.
CANON 7 - A LAWYER SHALL AT ALL TIMES In Foster v Agtang, the Court cannot order the
UPHOLD THE INTEGRITY AND DIGNITY OF THE respondent to return the money he borrowed from the
LEGAL PROFESSION AND SUPPORT THE complainant in his private capacity. The Court held that
ACTIVITIES OF THE INTEGRATED BAR. it cannot order the lawyer to return money to the
complainant if he or she acted in a private capacity
Rule 7.01 - A lawyer shall be answerable for knowingly because its findings in administrative cases have no
making a false statement or suppressing a material fact in bearing on liabilities which have no intrinsic link to the
connection with his application for admission to the bar. lawyer’s professional engagement. In disciplinary
proceedings against lawyers, the only issue is whether

the officer of the court is still fit to be allowed to devotion, regardless of whether he accepts it for a fee
continue as a member of the Bar. The only concern of of for free (Pichon v Agleron).
the Court is the determination of respondent’s
administrative liability. Its findings have no material Legal Basis in Answering:
bearing on other judicial actions which the parties may
choose against each other. CANON 17 - A LAWYER OWES FIDELITY TO THE
CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL
Legal Bases in Answering: OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL CANON 18 - A LAWYER SHALL SERVE HIS CLIENT
MONEYS AND PROPERTIES OF HIS CLIENT THAT WITH COMPETENCE AND DILIGENCE.
MAY COME INTO HIS PROFESSION.
CONFLICT OF INTEREST: In the case of Gimeno v
Rule 16.01 - A lawyer shall account for all money or Zaide, the Court laid down the tests to determine if a
property collected or received for or from the client. lawyer is guilty of representing conflicting interests
between and among his clients.
Rule 16.02 - A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by One of these tests is whether the acceptance of a new
him. relation would prevent the full discharge of a lawyer's
duty of undivided fidelity and loyalty to the client or
Rule 16.03 - A lawyer shall deliver the funds and property invite suspicion of unfaithfulness or double-dealing in
of his client when due or upon demand. However, he shall the performance of that duty.
have a lien over the funds and may apply so much thereof as
may be necessary to satisfy his lawful fees and Another test is whether a lawyer would be called upon
disbursements, giving notice promptly thereafter to his in the new relation to use against a former client any
client. He shall also have a lien to the same extent on all confidential information acquired through their
judgments and executions he has secured for his client as connection or previous employment.
provided for in the Rules of Court.
Legal Basis in Answering:
Rule 16.04 - A lawyer shall not borrow money from his
client unless the client's interest are fully protected by the CANON 15 - A LAWYER SHALL OBSERVE CANDOR,
nature of the case or by independent advice. Neither shall a FAIRNESS AND LOYALTY IN ALL HIS DEALINGS
lawyer lend money to a client except, when in the interest of AND TRANSACTIONS WITH HIS CLIENTS.
justice, he has to advance necessary expenses in a legal
matter he is handling for the client. Rule 15.03. - A lawyer shall not represent conflicting
interests except by written consent of all concerned given
PRACTICE OF LAW AS A BUSINESS: The practice of after a full disclosure of the facts.
law is not a business. It is a profession in which duty to
public service, not money, is the primary consideration. GROSS IMMORAL CONDUCT (Bigamy, womanizing,
Lawyering is not primarily meant to be a etc): A lawyer may be suspended or disbarred for any
money-making venture, and the law advocacy is not a misconduct showing any fault or deficiency in his
capital that necessarily yields profits. The gaining of moral character, honesty, probity or good demeanor.”
livelihood should be a secondary consideration. The Immoral conduct involves acts that are willful, flagrant,
duty to public service and to the administration of or shameless, and that show a moral indifference to
justice should be the primary consideration for the opinion of the upright and respectable members of
lawyers, who must subordinate their personal interests the community. Immoral conduct is gross when it is so
or what they owe to themselves (Brunet v Guaren). corrupt as to constitute a criminal act, or so
unprincipled as to be reprehensible to a high degree, or
Legal Basis in Answering: when committed under such scandalous or revolting
circumstances as to shock the community’s sense of
CANON 17 - A LAWYER OWES FIDELITY TO THE decency. Respondent’s subsequent marriage during
CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL the subsistence of his previous one definitely
OF THE TRUST AND CONFIDENCE REPOSED IN HIM. manifests a deliberate disregard of the sanctity of
marriage and the marital vows protected by the
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT Constitution and affirmed by our laws. By his own
WITH COMPETENCE AND DILIGENCE. admission, Respondent made a mockery out of the
institution of marriage, taking advantage of his legal
INACTION/FAILURE TO PROVIDE SERVICE: Once a skills in the process. He exhibited a deplorable lack of
lawyer takes up the causes of his client, he is duty that degree of morality required of him as a member of
bound to serve his client with competence, and to the bar, which thus warrant the penalty of disbarment.
attend to his clients’s cause with diligence, care, and

(Perez v. Catindig; Ecraela v Pangalangan). MAY COME INTO HIS PROFESSION.
Legal Basis in Answering: Rule 16.01 - A lawyer shall account for all money or
property collected or received for or from the client.
CANON 1 - A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND DUTY TO PROFESSION
PROCESSES. UPHOLD THE DIGNITY OF THE LEGAL PROFESSION:
Rule 1.01 - A lawyer shall not engage in unlawful, Violation of Notarial Practice: Time and again, this
dishonest, immoral or deceitful conduct. Court has stressed that notarization is not an empty,
meaningless and routine act. It is invested with
CANON 7 - A LAWYER SHALL AT ALL TIMES substantive public interest that only those who are
UPHOLD THE INTEGRITY AND DIGNITY OF THE qualified or authorized may act as notaries public. It
LEGAL PROFESSION AND SUPPORT THE must be emphasized that the act of notarization by a
ACTIVITIES OF THE INTEGRATED BAR. notary public converts a private document into a public
document making that document admissible in
Rule 7.03 - A lawyer shall not engage in conduct that evidence without further proof of authenticity. A
adversely reflects on his fitness to practice law, nor shall he, notarial document is by law entitled to full faith and
whether in public or private life, behave in a scandalous credit upon its face, and for this reason, notaries public
manner to the discredit of the legal profession. must observe with utmost care the basic requirements
in the performance of their duties (In Re: Violation of
ENTERING IN A COMPROMISE AGREEMENT: In the Rules on Notarial Practice). Under the rule, only
practice of law, lawyers constantly formulate persons who are commissioned as notary public may
compromise agreements for the benefit of their perform notarial acts within the territorial jurisdiction
clients. Article 1878 of the Civil Code provides that of the court which granted the commission.
"special powers of attorney are necessary in the
following cases: xxx (3) To compromise, to submit Legal Basis in Answering:
questions to arbitration, to renounce the right to appeal
from a judgment, to waive objections to the venue of 2004 Rules on Notarial Practice
an action or to abandon a prescription already
acquired." CANON 1 - A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND
In line with the fiduciary duty of the Members of the AND PROMOTE RESPECT FOR LAW OF AND LEGAL
Bar, Section 23, Rule 138 of the Rules of Court PROCESSES.
specifies a stringent requirement with respect to
compromise agreements, to wit: Rule 1.01 - A lawyer shall not engage in unlawful,
Sec. 23. Authority of attorneys to bind clients. -
Attorneys have authority to bind their clients in CANON 7 - A LAWYER SHALL AT ALL TIMES
any case by any agreement in relation thereto UPHOLD THE INTEGRITY AND DIGNITY OF THE
made in writing, and in taking appeals, and in LEGAL PROFESSION AND SUPPORT THE
all matters of ordinary judicial procedure. But ACTIVITIES OF THE INTEGRATED BAR.
they cannot, without special authority,
compromise their client's litigation, or receive Impropriety in Dealings (Bribery, etc.): The primary
anything in discharge of a client's claim but the duty of lawyers is not to their clients but to the
full amount in cash (Sison v Camacho). administration of justice. To that end, their clients’
success is wholly subordinate. The conduct of a
Legal Basis in Answering: member of the bar ought to and must always be
scrupulously observant of the law and ethics. Any
CANON 1 - A LAWYER SHALL UPHOLD THE means, not honorable, fair and honest which is
CONSTITUTION, OBEY THE LAWS OF THE LAND resorted to by the lawyer, even in the pursuit of his
AND PROMOTE RESPECT FOR LAW OF AND LEGAL devotion to his client’s cause, is condemnable and
PROCESSES. unethical (Jimenez v Verano).
Rule 1.01 - A lawyer shall not engage in unlawful, Legal Basis in Answering:
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL CONSTITUTION, OBEY THE LAWS OF THE LAND
MONEYS AND PROPERTIES OF HIS CLIENT THAT AND PROMOTE RESPECT FOR LAW OF AND LEGAL

PROCESSES. to advise him as to the law (Binay-An v Addog)
Rule 1.01 - A lawyer shall not engage in unlawful, Legal Basis in Answering:
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF
CANON 7 - A LAWYER SHALL AT ALL TIMES WITH COURTESY, FAIRNESS AND CANDOR
UPHOLD THE INTEGRITY AND DIGNITY OF THE TOWARDS HIS PROFESSIONAL COLLEAGUES, AND
LEGAL PROFESSION AND SUPPORT THE SHALL AVOID HARASSING TACTICS AGAINST
ACTIVITIES OF THE INTEGRATED BAR. OPPOSING COUNSEL.
CANON 13 - A LAWYER SHALL RELY UPON THE Rule 8.02 - A lawyer shall not, directly or indirectly,
MERITS OF HIS CAUSE AND REFRAIN FROM ANY encroach upon the professional employment of another
IMPROPRIETY WHICH TENDS TO INFLUENCE, OR lawyer, however, it is the right of any lawyer, without fear or
GIVES THE APPEARANCE OF INFLUENCING THE favor, to give proper advice and assistance to those seeking
COURT. relief against unfaithful or neglectful counsel.
COURTESY TOWARDS FELLOW LAWYERS: DUTY TO THE COURT
Use of abusive, offensive, or otherwise improper CANDOR TOWARDS THE COURT: A lawyer owes
language: A lawyer must at all times, whether in public utmost honesty towards all his dealings with the
or private life, act in a manner beyond reproach courts. He must not file false and frivolous legal
especially when dealing with fellow lawyers. documents, such as affidavits (Umaguing v De Vera).
Though a lawyer's language may be forceful and Every lawyer is a servant of the law, and has to observe
emphatic, it should always be dignified and respectful, and maintain the rule of law as well as be an exemplar
befitting the dignity of the legal profession. The use of worthy of emulation by others. It is by no means a
intemperate language and unkind ascriptions has no coincidence, therefore, that the core values of honesty,
place in the dignity of the judicial forum. integrity, and trustworthiness are emphatically
reiterated by the Code of Professional Responsibility.
CANON 7 - A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND DIGNITY OF THE CANON 10 - A LAWYER OWES CANDOR, FAIRNESS
LEGAL PROFESSION AND SUPPORT THE AND GOOD FAITH TO THE COURT.
ACTIVITIES OF THE INTEGRATED BAR.
Rule 10.01 - A lawyer shall not do any falsehood, nor
Rule 7.03 - A lawyer shall not engage in conduct that consent to the doing of any in Court; nor shall he mislead, or
adversely reflects on his fitness to practice law, nor shall he, allow the Court to be misled by any artifice.
whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession. RESPECT TOWARDS THE COURT: The right to
criticize, which is guaranteed by the freedom of speech
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF and of expression in the Bill of Rights of the
WITH COURTESY, FAIRNESS AND CANDOR Constitution, must be exercised responsibly, for every
TOWARDS HIS PROFESSIONAL COLLEAGUES, AND right carries with it a corresponding obligation.
SHALL AVOID HARASSING TACTICS AGAINST Freedom is not freedom from responsibility, but
OPPOSING COUNSEL. freedom with responsibility (In Re: Kapunan).
Rule 8.01 - A lawyer shall not, in his professional dealings, Well-recognized therefore is the right of a lawyer, both
use language which is abusive, offensive or otherwise as an officer of the court and as a citizen, to criticize in
improper. properly respectful terms and through legitimate
channels the acts of courts and judges.
FAIRNESS TO FELLOW LAWYERS:
Hence, as a citizen and as officer of the court, a lawyer
Encroachment: A lawyer should not in any way is expected not only to exercise the right, but also to
communicate upon the subject of controversy with a consider it his duty to avail of such right. No law may
party represented by counsel, much less should he abridge this right. Nor is he professionally answerable
undertake to negotiate or compromise the matter with for a scrutiny into the official conduct of the judges,
him, but should deal only with his counsel. It is which would not expose him to legal animadversion as
incumbent upon the lawyer most particularly to avoid a citizen.
everything that may tend to mislead a party not
represented by counsel, and he should not undertake But it is the cardinal condition of all such criticism that

it shall be bona fide, and shall not spill over the walls of forum shopping.
decency and propriety. A wide chasm exists between
fair criticism, on the one hand, and abuse and slander There is a difference in the treatment between failure
of courts and the judges thereof, on the other. to comply with the certification requirement and
Intemperate and unfair criticism is a gross violation of violation of the prohibition against forum shopping not
the duty of respect to courts. It is such a misconduct only in terms of imposable sanctions but also in the
that subjects a lawyer to disciplinary action. manner of enforcing them. The former constitutes
sufficient cause for the dismissal without prejudice to
The test for criticizing a judges decision is, therefore, the filing of the complaint or initiatory pleading upon
whether or not the criticism is bona fide or done in motion and after hearing, while the latter is a ground
good faith, and does not spill over the walls of decency for summary dismissal thereof and for direct
and propriety (Habawel v CTA). contempt.
It is indirect contempt of court, when an individual’s The submission of a false certification or

predisposition is to indiscriminately file administrative non-compliance with any of the undertakings therein
complaints against members of the Judiciary. We held shall constitute indirect contempt of court, without
that this conduct degrades the judicial office, interferes prejudice to the corresponding administrative and
with the due performance of their work for the criminal actions. If the acts of the party or his counsel
Judiciary, and thus constitutes indirect contempt of clearly constitute willful and deliberate forum
court (In Re: Verified Complaint of Merdegia). shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct
Direct Contempt is committed in the court's presence contempt, as well as a cause for administrative
or so near the court, while Indirect Contempt is not sanctions (Crisostomo v Nazareno)
committed within or near the court's presence.
Nonetheless, direct contempt may be committed Legal Basis in Answering:
through pleadings.
Direct Contempt is punished summarily. This means a CONSTITUTION, OBEY THE LAWS OF THE LAND
judge (or justice) can immediately cite an offending AND PROMOTE RESPECT FOR LAW OF AND LEGAL
person in direct contempt and mete out the PROCESSES.
punishment for it. An offender has to go through due
process before being cited for indirect contempt. The Rule 1.01 - A lawyer shall not engage in unlawful,
power to punish contempt of court is exercised on the dishonest, immoral or deceitful conduct.
preservative and not on the vindictive principle, and
only occasionally should a court invoke its inherent CANON 10 - A LAWYER OWES CANDOR, FAIRNESS
power to punish contempt of court in order to retain AND GOOD FAITH TO THE COURT.
that respect without which the administration of
justice must falter or fail. Rule 10.01 - A lawyer shall not do any falsehood, nor
consent to the doing of any in Court; nor shall he mislead, or
Legal Basis in Answering: allow the Court to be misled by any artifice.
CANON 1 - A LAWYER SHALL UPHOLD THE CANON 12 - A LAWYER SHALL EXERT EVERY
CONSTITUTION, OBEY THE LAWS OF THE LAND EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN
AND PROMOTE RESPECT FOR LAW OF AND LEGAL THE SPEEDY AND EFFICIENT ADMINISTRATION OF
PROCESSES. JUSTICE.
CANON 11 - A LAWYER SHALL OBSERVE AND Rule 12.02 - A lawyer shall not file multiple actions arising
MAINTAIN THE RESPECT DUE TO THE COURTS AND from the same cause.
TO JUDICIAL OFFICERS AND SHOULD INSIST ON
SIMILAR CONDUCT BY OTHERS. Delaying Proceedings: As an officer of the court, a
lawyer is part of the machinery in the administration of
Rule 11.03 - A lawyer shall abstain from scandalous, justice. A lawyer should not only help attain the speedy,
offensive or menacing language or behavior before the efficient, impartial, correct, and inexpensive
Courts. adjudication of cases and prompt satisfaction of final
judgments, but should likewise avoid any unethical or
ADMINISTRATION OF JUSTICE: improper practices that may impede, obstruct, or
prevent the realization of a speedy and efficient
Submission of False Certification of Forum Shopping: administration of justice (De Los Santos II v Barbosa).
Separate from the proscription against forum shopping
is the violation of the certification requirement against Legal Basis in Answering:


CONSTITUTION, OBEY THE LAWS OF THE LAND
PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful,

CANON 12 - A LAWYER SHALL EXERT EVERY

EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN
THE SPEEDY AND EFFICIENT ADMINISTRATION OF
JUSTICE.
Rule 12.03 - A lawyer shall not, after obtaining extensions

of time to file pleadings, memoranda or briefs, let the period
lapse without submitting the same or offering an explanation
for his failure to do so.
Rule 12.04 - A lawyer shall not unduly delay a case, impede

the execution of a judgment or misuse Court processes.
II. SUSPENSION, DISBARMENT AND DISCIPLINE

OF LAWYERS (Rule 139; Rule 139-B)

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REMEDIAL LAW

AND LEGAL ETHICS

In God’s Perfect Time

PART 1 Petition for Recognition of the Exemption of

2022 Bar Reviewer by J.K.R. Gamboa | 2

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elevated for judicial review. HOW IS JURISDICTION OVER THE PARTIES

Exclusive jurisdiction means no other courts or ● Service of summons

4. Continuity of jurisdiction To constitute voluntary appearance, it must be the

● Jurisdiction over the subject matter

a. Jurisdiction over the parties However, in an action in rem or quasi in rem,

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well as by the character of the relief sought. This is

How is jurisdiction over the subject matter

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Is there an exception to that principle that case.

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party. favor of the petitioner against all the world, without

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PHP1,000,000.00, provided that no execution fine not exceeding PHP50,000.00, or both,

3) Complaints for damages where the claims do

4) Cases for enforcement of barangay amicable

5) Cases solely for the revival of judgment of any

6) The civil aspect of violations of Batas

**Should a criminal action be later instituted

1) Violations of traffic laws, rules and regulations;

2) Violations of the rental law;

3) Violations of municipal or city ordinances;

4) Violations of BP 22; and

5) All other criminal cases where the penalty

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■ An action for the nullity of marriage is a

A. General provisions (Rule 1) ■ An action for specific performance with

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ACTION IN PERSONAM YES. Regardless of the nature of the action, proper

ACTION QUASI IN REM Rule 2, Section 2. Cause of action, defined. – A cause

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a) Right pertaining to plaintiff CAUSE OF ACTION RIGHT OF ACTION

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following conditions: therein.

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determine the jurisdiction. (Totality right and violation of such right.

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Rule 86, Section 5. – All claims for money against the

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● Nullity of marriage status of the plaintiff, or any property

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could be in a place where neither of them resides. PLEADINGS ALLOWED

In real actions, like unlawful detainer, the parties may ■ Complaint

c) The agreement must be exclusive ■ Answer

Agreement on venue may be: ○ An answer is a pleading in which a

■ “The agreed venue shall be in the City of ■ Third party complaint

Pleadings are written statements of the respective

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Judge Gito: So if you are asked if summary hearing is

Sec. 12, Rule 8: The prohibition on filing of motion for reconsideration,

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COUNTERCLAIM In permissive counterclaim, since it is an independent

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party complaint filed by C against D be allowed? what he certifies?