BAR OPERATIONS COMMISSIONS

KARIZ ELIZABETH TEH

Chairman

Honey Joy Belen Vice-Chair for Academics, Kathleen Trine De Lara Vice-Chair for
Administration, Jhoanna Paula Bitor Operations Officer, Michael Angelo Tamayo Secretary,
Rhian Lee Tiangco Treasurer, Shianne Camille Dionisio Auditor, Gillian Albay Public
Relations Officers, Mikyla Cordero Volunteer Core Head, Ayla Monica Cristobal Creative
Director

Charles Bautista Secretary, John Paul Nanit Treasurer

TadzMajal Ayesha Jaafar
JOHANNES PAOLO MEDINA Van Regine Perlas Auditor Chona Layugan
Commissioner
Regina Rae Luzadas
May Angelique Magboo
Lawrence Felix Garcia
Alexis Marie Monto
Deputy Commisioner
Kathlene Noveno
Marjorie Penolbo
Jester Concepcion
Shiela Marie Pilar
John Lester Tamayo
Eunesse Mari Retutal
Hazel Mascariñas
Jean Pauline Rivera
Johannes Paolo Medina
Mark Genesis Rojas
Subject Heads
Kristina Savellano
Justin Andre Siguan
Mary Gail Abenio Lyra Aurea Silverio
Eleonor Antiquiera Michelle Faye Sulit
ReilJenily Arena Abdul Fahad Sultan
Mary Anne Micah Baltazar Darlene Tiburcio
Jane Hanika Basilio Lady Kris Torres
April Bayabao Rafael Luis Miguel Veloso
Kathleen Bulan Members
Annette Charmaine Castillon
Blessie Doque
ACKNOWLEDGMENT
Erlaine Faye Francisco Justice Antonio E.B. Nachura, Retired
Edmond Gastanes Dean Domingo M. Navarro
Members Asst. Dean Erik C. Lazo
Atty. Gabriel P. Dela Peña
Atty. Henedino M. Brondial
Atty. Prime Ramos
Atty. Calai Fabie
Atty. Cris Tenorio
Members

O
Atty. Victor Carlo Antonio V. Cayco

center Atty. Roderick M. Villostas

for Director

legal Atty. Antony J. Parreño, Atty. Lester Ople

CLEAR Research Fellows
education

and Brando de Torres, Maricar Asuncion, Jayson Galapon

Research Staff
research
 Table of Contents

I. GENERAL PRINCIPLES...................................................................................... 1
A. Distinguish: substantive law and remedial law............................................. 1
B. Rule-making power of the Supreme Court................................................... 1
C. Nature of Philippine courts........................................................................... 3

II. JURISDICTION………………………………………………………………… 6
A. Classification of jurisdiction......................................................................... 7
B. Doctrines of hierarchy of courts and continuity of jurisdiction.................... 9
C. Jurisdiction of various Philippine courts...................................................... 10
D. Aspects of jurisdiction.................................................................................. 19
E. Distinguish: error of jurisdiction and error of judgment............................... 26
F. Distinguish: jurisdiction and venue.............................................................. 26
G. Jurisdiction over small claims, cases covered by the rules on Summary
Procedure and Barangay Conciliation........................................................... 27
H. How jurisdiction is determined..................................................................... 29

III. CIVIL PROCEDURE............................................................................................. 29

A. General Provisions......................................................................................... 29
B. Actions........................................................................................................... 29
C. Cause of Action............................................................................................. 33
D. Parties to Civil Actions.................................................................................. 37
E. Venue............................................................................................................ 45
F. Pleadings....................................................................................................... 48
G. Summons...................................................................................................... 85
H. Motions......................................................................................................... 98
I. Dismissal of Actions..................................................................................... 103
J. Pre-Trial........................................................................................................ 105
K. Intervention................................................................................................... 109
L. Subpoena...................................................................................................... 112
M. Computation of Time.................................................................................... 113
N. Modes of Discovery..................................................................................... 114
O. Trial.............................................................................................................. 128
P. Demurer to Evidence.................................................................................... 134
Q. Judgments and Final Orders......................................................................... 138
R. Post-Judgment Remedies.............................................................................. 146
S. Execution, Satisfaction, and Effect of Judgments........................................ 175

IV. PROVISIONAL REMEDIES............................................................................... 193

A. Nature and Purpose....................................................................................... 193
B. Jurisdiction Over Provisional Remedies....................................................... 194
C. Preliminary Attachment................................................................................. 194
D. Preliminary Injunction................................................................................... 203
E. Receivership.................................................................................................. 209
F. Replevin........................................................................................................ 212
G. Provisional Remedies and Interim Reliefs Under Special Laws and Rules.. 215
Rules.....................................................................................................
 V. SPECIAL CIVIL ACTIONS.............................................................................. 222
A. Nature of Special Civil Actions................................................................. 222
B. Distinguish: Ordinary Civil Actions and Special Civil Actions................ 223
C. Jurisdiction and Venue............................................................................... 224
D. Interpleader................................................................................................ 224
E. Declaratory Reliefs and Similar Remedies................................................. 226
F. Review of Judgments and Final Orders or Resolution of the Commission
of Elections and the Commission on Audit................................................ 230
G. Certiorari, Prohibition and Mandamus....................................................... 231
H. Quo Warranto............................................................................................ 238
I. Expropriation............................................................................................. 241
J. Foreclosure of Real Estate Mortgage........................................................ 248
K. Partition..................................................................................................... 258
L. Forcible Entry and Unlawful Detainer....................................................... 261
M. Contempt.................................................................................................... 266

VI. SPECIAL PROCEEDINGS................................................................................ 272

A. Settlement of Estate of Deceased Persons, Venue and Process................. 272
B. Summary Settlement of Estates.................................................................. 275
C. Production and Probate of Will................................................................... 277
D. Allowance or Disallowance of Will............................................................ 278
E. Letters Testamentary and of Administration............................................... 280
F. Claims Against the Estate........................................................................... 289
G. Actions By and Against Executors and Administrators.............................. 292
H. Distribution and Partition............................................................................ 298
I. Trustees....................................................................................................... 303
J. Escheat........................................................................................................ 304
K. Guardianship.............................................................................................. 307
L. Adoption.................................................................................................... 313
M. Writ of Habeas Corpus............................................................................... 323
N. Writ of Amparo........................................................................................... 324
O. Writ of Habeas Data.................................................................................... 328
P. Change of Name.......................................................................................... 331
Q. Absentees.................................................................................................... 334
R. Cancellation or Correction of Entries in the Civil Registry......................... 334
S. Appeals in Special Proceeding..................................................................... 336

VII. CRIMINAL PROCEDURE................................................................................. 349

A. General Matters............................................................................................ 349
B. Prosecution of Offenses................................................................................ 355
C. Prosecution of Civil Action........................................................................... 368
D. Preliminary Investigation............................................................................... 374
E. Arrest............................................................................................................. 387
F. Bail................................................................................................................. 395
G. Arraignment and Plea.................................................................................... 405
H. Motion to Quash............................................................................................ 410
I. Pre-Trial......................................................................................................... 416
 J. Trial............................................................................................................. 420
K. Judgment..................................................................................................... 438
L. New Trial or Reconsideration..................................................................... 442
M. Appeal......................................................................................................... 445
N. Search and Seizure...................................................................................... 451
O. Provisional Remedies in Criminal Cases................................................... 469

VIII. EVIDENCE........................................................................................................... 470

A. General Principles........................................................................................ 470
B. Judicial Notice and Judicial Admissions..................................................... 493
C. Object (Real) Evidence................................................................................ 496
D. Documentary Evidence................................................................................ 501
E. Testimonial Evidence................................................................................... 520
F. Offer and Objection..................................................................................... 576

IX. REVISED RULES ON SUMMARY PROCEDURE......................................... 580

A. Cases covered by the Rule........................................................................... 580
B. Effect of failure to answer........................................................................... 582
C. Preliminary conference and appearances of parties..................................... 582
D. Prohibited pleadings and motions................................................................ 584
E. Appeal......................................................................................................... 584

X. KATARUNGANG PAMBARANGAY.............................................................. 584

A. Cases covered............................................................................................. 585
B. Subject matter for amicable settlement....................................................... 585
C. Venue......................................................................................................... 585
D. When parties may directly go to court....................................................... 585
E. Execution.................................................................................................... 585
F. Repudiation................................................................................................. 587

XI. RULES OF PROCEDURE FOR SMALL CLAIMS CASES.......................... 587

A. Scope and applicability of the Rule............................................................ 587
B. Commencement of small claims action; response...................................... 588
C. Prohibited pleadings and motions................................................................ 589
D. Appearances................................................................................................. 589
E. Hearing; duty of the judge............................................................................ 589
F. Finality of judgment...................................................................................... 590

XII. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES…………….. 590

A. Scope and applicability of the Rule.............................................................. 590
B. Civil procedure............................................................................................. 591
C. Special proceedings...................................................................................... 597
D. Criminal procedure....................................................................................... 603
E. Evidence........................................................................................................ 606

XIII. ALTERNATIVE DISPUTE RESOLUTION...................................................... 607

A. Types of processes and procedures in alternative dispute resolution;
comparison with court-annexed mediation................................................... 607
B. Domestic arbitration.................................................................................... 607
C. Judicial review of arbitral awards............................................................... 612
D. Appeal from court decisions or arbitral awards.......................................... 614
E. Venue and jurisdiction................................................................................. 614
F. Special Rules of Court on Alternative Dispute Resolution......................... 614
 Purple Notes
Remedial Law
1. GENERAL PRINCIPLES application. in the sense that it may
be made to apply to
actions pending and
1.A.DISTINGUISH: SUBSTANTIVELAWAND
undetermined at the time
REMEDIAL LAW of its passage (Dacudao
vs. Gonzales, G.R. No.
Substantive Law creates, defines and regulates 188056, January 8,
rights and duties regarding life, liberty or 2013).
property which, when violated, gives rise to a
cause of action. It originates from the Supreme Court is
legislature. expressly empowered to
Remedial Law prescribes the methods of promulgate procedural
enforcing those rights and obligations created by rules [Art. VIII, Sec. 5
(5), 1987 Constitution].
substantive law by providing a procedural system
for obtaining redress for the invasion of rights
and violations of duties, and by prescribing rules
Note: Rules of procedure are remedial in nature
as to how suits are filed, tried and decided by the
and not substantive. They cover only rules on
courts.
pleading and practice.
Remedial Law is that branch of law which
 Q. May Procedural laws be given retroactive
prescribes the method of enforcing rights or
effect?
obtaining redress for their invasion.

Remedial Law refers to legislation providing A. Procedural laws may be given retroactive
means or methods whereby causes of action may effect to actions pending and to those which
be effectuated, wrongs redressed, and relief are NOT yet determined at the time of their
obtained. These statutes pertain to or affect a passage because there are NO vested rights
remedy as distinguished from those which affect in the rules of procedure (Go vs. Sunbanon,
G.R No. 168240, February 9, 2011).
or modify a substantive right or duty (Herrera,
Remedial Law Vol. I, p.1, 2007 ed.)
Exceptions to Retroactivity of Procedural
As applied to criminal law, substantive law is that Rules
which declares what acts are crimes and
prescribes the punishment for committing them, 1. Where the statute itself, or by necessary
as distinguished from remedial law which implication, provides that pending actions are
provides or regulates the steps by which one who excepted from its operation;
commits a crime is to be punished (Bustos vs. 2. If applying the rule to pending proceedings
Lucero, G.R. No. L-2068, October 20, 1948). would impair vested right;
3. When to do so would not be feasible or
would work injustice; or,
SUBSTANTIVE LAW REMEDIAL LAW 4. If doing so would involve intricate problems
of due process or impair the independence of
Creates, defines, and Provides for the manner the courts (Tan vs. CA, G.R. No. 149453, April 1,
regulates the rights, or by which said right may 2003).
which regulates the rights be enforced, protected or
and duties which give rise redressed (People vs. 1.B. RULE-MAKING POWER OF THE
to a cause of action(People Moner, G.R. No. 202206, SUPREME COURT
vs. Moner, G.R. No. March 5, 2018).
202206, March 5, 2018). Section 5 (5), Art. VIII of the Constitution
Grants vested rights. No vested right may provides that the Supreme Court shall have the
attach to, nor arise
power to promulgate rules concerning the:
therefrom (Billones vs.
CIR, G.R. No. L-17566,
July 30, 1965). a) protection and enforcement of constitutional
Generally prospective in Retroactive in application rights;

Bar Operations C ommissions 1

 Purple Notes
Remedial Law
b) pleading, practice, and procedure in all
courts;
c) admission to the practice of law;
d) integrated bar; and,
e) legal assistance to the underprivileged
 Q.What is the exclusive powerofthe Supreme
Court?
A.While the power to define, prescribe and
apportion the jurisdiction of the various
courts is, by constitutional design, vested
unto Congress, the power to promulgate
rules concerning the protection and
enforcement of constitutional rights,
pleading, practice and procedure in all courts
belongs exclusively to the Supreme Court
(Estipona, Jr. vs. Lobrigo, G.R. No. 226679,
August 15, 2017).
1.B.1 Limitations on the Rule-Making
Power of the Supreme Court
1) The rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
2) They shall be uniform for all courts of the
same grade;
3) They shall not diminish, increase, or modify
substantive rights;
4) Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court[Sec.
5(5), Art. VIII, Constitution]; and
5) The power to admit attorneys to the Bar is not
an arbitrary and despotic one but is the duty
of the court to exercise and regulate by a
sound and judicial discretion(Andres vs.
Cabrera, 127 SCRA 208, February 29, 1984).
1.B.2. Power of the Supreme Court to
amend and suspend procedural rules
Power of the SC to Amend Procedural Rules
 Q.Does the SC has the power to amend
procedural rules?
A(1). Yes. The Supreme Court has the
power to amend, repeal or even establish
new rules for a more simplified and
inexpensive process, and the speedy
2 Center for Legal Education and Research
disposition of cases (Neypes vs. CA, G.R. No.
141524, September 14, 2005).
(2) The constitutional power of the Supreme
Court to promulgate rules of practice and
procedure necessarily carries with it the
power to overturn judicial precedents on
points of remedial law through the
amendment of the Rules of Court (Pinga vs.
Heirs of Santiago, G.R. No. 170354, June 30,
2006).
Power of the SC to Suspend Procedural
Rules
The courts have the power to relax or suspend
technical or procedural rules or to except a case
from their operation when compelling reasons so
warrant or when the purpose of justice requires
it.
 Q.Isthe power to suspend procedural rules
mandatory or dicretionary?
A.What constitutes good and sufficient cause
that would merit suspension of the rules is
discretionary upon the courts(CIR vs. Mirant
Pagbilao Corp., Gr. No 159593, October 12, 2006).
Reasons that Would Warrant the
Suspension:
a. the existence of special or compelling
circumstances;
b. the merits of the case;
c. a cause not entirely attributable to the fault or
negligence of the party favored by the
suspension of rules;
d. a lack of any showing that the review sought
is merely frivolous and dilatory; and,
e. the other party will not be unjustly prejudiced
thereby (Sarmiento vs. Zaratan, G.R. No. 167471,
February 5, 2007);
f. Where substantial and important issues await
resolution(Silverio Jr. vs. Filipino Business
Consultants Inc., G.R. No. 143312, August 12,
2005);
g. When transcendental matters of life, liberty or
state security are involved(De Guzman vs.
Sandiganbayan, G.R. No. 103276, April 11, 1996).

1.C. NATURE OF THE PHILIPPINE COURTS
1.C.1. Meaning of a Court - A court is an
organ of government belonging to the judicial
department the function of which is the
application of the laws to controversies brought
before it as well as the public administration of
justice.(Black‘s, 5th Edition, 356).
1.C.2. Distinguish: Court and Judge
COURT
A court is a tribunal
officially assembled
under authority of law
(Riano bk. 2, Civpro vol.
1 Bar Leture Series,
p.39);
A court is an organ of the
government (Black‘s, 5th
Ed., 318)with a actions or proceedings are originally filed with it.
personality separate and
distinct from the person
or judge who sits on it
(People vs. Carlos, G.R.
No. L-239, June 30,
1947);
A court is a being in
imagination comparable
to a corporation (People
ex rel. Herndon vs.
Opekl, 188 III 194, 58
NE 996, cited by Black‘s,
5th Ed.);
A court is an office
(Riano, Civpro vol. 1 Bar
Leture Series, 2016 ed.,
p. 40);
Jurisdiction does not
attach to the judge but
to the court. The
continuity of a court and
the efficacy of its
proceedings are not
affected by the death,
resignation, or cessation
from the service of the
judge presiding over it.
In other words, the
Purple Notes
Remedial Law
judge may resign,
become incapacitated, or
be disqualified to hold
office, but the court
remains. (ABC Davao
Auto Supply vs. Court of
Appeals,GR No. 113296,
January 16, 1998).
1.C.3. Classification of Philippine Courts
JUDGE a. Courts of original and appellate jurisdiction;
a judge is simply an b. Courts of general and special jurisdiction
officer of such tribunal
c. Constitutional and statutory Courts
(Wagenhorst vs.
d. Superior and inferior Courts
Philadelphia Life
Insurance Co., 358 Pa. e. Civil and criminal Courts
55,55A2d 762, cited by
Black‘s 5th Ed.); 1.C.4.Courts of original and appellate
jurisdiction
1. A court is one with original jurisdiction when
A court is one with appellate jurisdiction when it
has the power of review over the decisions or
orders of a lower court (21 C.J.S., Courts, § 3).
2. Metropolitan Trial Courts, Municipal Circuit
Trial Courts, and Municipal Trial Courts are courts
A physical person of original jurisdiction. The Regional Trial Court is
(People ex rel. Herndon likewise a court of original jurisdiction with
vs. Opekl, 188 III 194, respect to cases originally filed with it but is also
58 NE 996, cited by a court of appellate jurisdiction with respect to
Black‘s, 5th Ed.);
cases decided by the Municipal Trial Courts within
its territorial jurisdiction (Sec. 22, BP 129). The
Regional Trial Court is also a court of original
A judge is a public jurisdiction with respect to a petition for a writ of
officer (Todd vs. United amparo (Sec. 3, The Rule on the Writ of Amparo) or
States, 158 US 278, 39 a petition for a writ of habeas data (Sec. 3, The
L Ed 982, 15 S ct. 889, Rule on the Writ of Habeas Data).
cited by Black‘s, 5th
Ed.); 3. The Court of Appeals is primarily a court of
appellate jurisdiction with competence to review
Jurisdiction does not
judgments of the Regional Trial Courts and
attach to the judge.
specified quasi-judicial agencies (Sec. 9[3], BP
129). It is also a court of original jurisdiction with
respect to cases filed before it involving issuance
of writs of certiorari, mandamus, quo warranto,
habeas corpus, and prohibition. It is also a court
of original jurisdiction (and exclusive) over
actions for annulment of judgments of Regional
Trial Courts (Sec. 9[1][2], BP 129). It is also a court
of original jurisdiction with respect to a petition
for a writ of amparo (Sec. 3, The Rule on the Writ of
Bar Operations C ommissions 3
 Purple Notes
Remedial Law
Amparo) or a petition for a writ of habeas data
(Sec. 3, The Rule on the Writ of Habeas Data). These
petitions may be filed originally not only with the
Regional Trial Court, the Sandiganbayan or the
Supreme Court but also with the Court
orAppeals(Riano, Civpro vol. 1, 2016 ed., Bar Leture
Series, p. 48).
5. The Supreme Court is also fundamentally a
court of appellate jurisdiction but it may also
be a court of original jurisdiction over cases
affecting ambassadors, public ministers and
consuls, and in cases involving petitions for
certiorari, prohibition and mandamus(Sec.
5[1], Art. VIII, Constitution of the Philippines). It
may also be a court of original jurisdiction in
a petition for a writ of amparo (Sec. 3, The
Rule on the Writ of Amparo) or a petition for a
writ of habeas data (Sec. 3, The Rule on the
Writ of Habeas Data).
Note: The Supreme Court en banc is not an
appellate court to which decisions or
resolutions of a division of the Supreme Court
may be appealed (Bar 1990) (Rianobk. ,Civpro
vol. 1, 2016 ed., Bar Leture Series, p. 48).
1.C.5. Courts of general and special
jurisdiction
Courts of general jurisdiction - are thosewith
competence to decide on their own jurisdiction
and to take cognizance of all cases, civil and
criminal, of a particular nature (Riano bk. 2, Civpro
vol. 1 Bar Leture Series 2016 ed., p. 47). A court may
also be considered ‗general‘ if it has the
competence to exercise jurisdiction over cases
not falling within the jurisdiction of any court,
tribunal, person, or body exercising judicial or
quasi-judicial functions (Sec. 19[6J, Sec. 20, BP 129,
Judiciary Reorganization Act of1980). It is in this
context that the Regional Trial Court is
considered a court of general jurisdiction (Riano,
CivproVol. 1 Bar Leture Series 2016 ed., p. 47).
Court of special jurisdiction- Courts of special
(limited) jurisdiction are those which have a
special jurisdiction only for a particular purpose
or are clothed with special powers for the
performance of specified duties beyond which
they have no authority of any kind
4 Center for Legal Education and Research
1.C.6. Constitutional and statutory courts
Constitutional court - is one created byadirect
Constitutional provision. Example of this court is
the Supreme Court of the Philippines. It owes
its ‘creation from the Constitution itself (Sec. 1,
Art. VIII, Constitution of the Philippines). In the
Philippines, only the Supreme Court is a
constitutional court (Riano, Civpro vol. 1 Bar Leture
Series 2016 ed., p. 45-46).
Statutory court - is one created by a law other
than the Constitution. All courts in the
Philippines, except the Supreme Court, are
statutory courts (Riano, Civpro vol. 1 Bar Leture
Series 2016 ed., p. 46).
Note: The Sandiganbayan is not a constitutionally
created court. It was not directly created by the
Constitution but was created by law pursuant to
a constitutional mandate. The 1973 Constitution
required the then Batasang Pambansa to create a
special court to be known as the Sandiganbayan
(Sec. 5, Art. XIII, 1973 Constitution) and its
existence continues to be recognized by the 1987
Constitution (Riano, Civpro vol. 1 Bar Leture Series,
p. 34-35).
1.C.7. Courts of law and equity- Philippine
courts are both courts of law and equity. Hence,
both legal and equitable jurisdiction is dispensed
with in the same tribunal (U.S. vs. Tamparong, G.R.
No. 9527, August 23, 1915).
Court of law- is atribunal which administers
justice according to the laws of the land.
Court of equity - is atribunalwhichadministers
justice according to the basic tenets of fairness.
Equity is available only in the absence of law
andnot as replacement. It cannot
supplant,although it may, as it often happens,
supplementthe law (Tankiko vs. Cezar, G.R. No.
131277. February 2, 1999).
1.C.8. Principle of judicial hierarchy
This is an ordained sequence of recourse to
courts vested with concurrent jurisdiction,
beginning from the lowest, on to the next highest
and ultimately to the highest. This hierarchy is
determinative of the venue of appeals, and is
likewise determinative of the proper forum for

petitions for extraordinary writs. This is an
established policy necessary to avoid inordinate
demands upon the Court‘s time and attention
which are better devoted to those matters within
its exclusive jurisdiction, and to preclude the
further clogging of the Court‘s docket (Sec. 9[1],
BP129; Sec. 5[1], Art. VIII, Constitution of the
Philippines).
As a matter of policy, direct recourse to the
Supreme Court should not be allowed. The
Supreme Court is a court of last resort, and must
so remain if it is to satisfactorily perform the
functions assigned to it. It cannot and should not
be burdened with the task of dealing with causes
in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be
exercised only where absolutely necessary or
where serious and important reasons exist
therefor(Gios-Samar, Inc. vs. DoTC, G.R. No. 217158,
March 12, 2019).
Rationale:The rationale for this rule is three-
fold: (1) to prevent inordinate demands upon the
Court's time and attention which are better
devoted to those matters within its exclusive
jurisdiction; (2) to prevent further over-crowding
of the Court's docket; and (3) to prevent the
inevitable and resultant delay, intended or
otherwise, in the adjudication of cases, which in
some instances had to be remanded or referred
to the lower court as the proper forum under the
rules of procedure, or as better equipped to
resolve the issues because this Court is not a trier
of facts(Gios-Samar, Inc. vs. DoTC, G.R. No. 217158,
March 12, 2019).
1. Q.May a petitioner seek relief of Writ of
Prohibition directly with the SC?
A.No.While it is true that the issuance of a
Writ of Prohibition under Rule 65 of the Rules
of Court is within the jurisdiction of the
Supreme Court, a petitioner cannot seek
relief from the Supreme Court where the
issuance of such writ is also within the
competence of the Regional Trial Court or the
Court of Appeals. The Supreme Court is a
court of last resort. It cannot and should not
be burdened with the task of deciding cases
in the first instance. Its jurisdiction to issue
extraordinary writs should be exercised only
where absolutely necessary or where serious
Purple Notes
Remedial Law
and important reasons exist (Purok Bagong
Silangan vs. Yuipco, G.R. No. 135092, May 4,
2006).
1. Q. Does the concurrence of jurisdiction give
the parties unrestrained freedom of choice of
the court?
A. This concurrence of jurisdiction among
theSupreme Court, Court of Appeals
andRegional Trial Courts in certain cases
should not be construed as giving toparties
unrestrained freedom of choice of the court
to which application therefore will be
directed. There is a principle of hierarchy of
courts to be followed (Quesada vs. Department
of Justice, G.R. No. 150325, August 31, 2006).
 Q. Why unwarranted demands upon the SC‘s
attention must be prevented?
A.Unwarranted demands upon the Supreme
Court‘s attention must be prevented to
allowtime and devotion for pressing matters
within itsexclusive jurisdiction (Cruz vs.
Gingoyon, G.R. No. 140954, April 12, 2005).
When the Doctrine of Hierarchy of Courts
May Be Disregarded:
a) If warranted by the nature and importance of
the issues raised in the interest of speedy
justice and to avoid future litigations;
b) In cases of national interest and of serious
implications. Under the Principle of Liberal
Interpretation, for example, SC may take
cognizance of a petition for certiorari directly
filed before it;
c) When there are special and important
reasons clearly stated in the petition;
d) When dictated by public welfare and the
advancement of public policy;
e) When demanded by the broader interest of
justice;
f) When the challenged orders were patent
nullities; or,
g) When analogous exceptional and compelling
circumstances called for and justified the
immediate and direct handling by the
Supreme Court (Republic vs. Caguioa, G.R. No.
174385, February 20, 2013).
Bar Operations C ommissions 5
 Purple Notes
Remedial Law
The presence of one or more of the so-called
"special and important reasons" is not the
decisive factor considered by the Supreme Court
in deciding whether to permit the invocation, at
the first instance, of its original jurisdiction over
the issuance of extraordinary writs. Rather, it is
the nature of the question raised by the parties in
those "exceptions" that enables the Court to
allow the direct action before it (Gios-Samar, Inc.
vs. DoTC, G.R. No. 217158, March 12, 2019).
1.C.9. Doctrine of Non-Interference or
Doctrine of Judicial Stability
General Rule: Doctrine of Non-Interference or
Doctrine of Judicial Stability must be observed.
Exemption:
This principle does not apply where a third-party
claimant is involved, who may vindicate his claim
(Manliguez vs. CA, G.R. No. 92598, May 20, 1994).
2. Q. What is doctrine of non-interference?
A.This principle holds that courts of equal
and coordinate jurisdiction cannot interfere
with each other‘s orders (Lapu-Lapu
Development and Housing Corporation vs. Group
Management Corporation, G.R. No. 141407,
September 9, 2002). This principle also bars a
court from reviewing or interfering with the
judgment of a co-equal court over which it
has no appellate jurisdiction or power of
review (Villamor vs. Salas, G.R. No. 101041,
November 13, 1991).
3. Q.May the RTC nullify or enjoin the
enforcement of a writ of possession issued by
another RTC?
A. A Regional Trial Court has no poweror
authority to nullify or enjoin the enforcement
of a writ of possession issued by another
Regional Trial Court (Suico Industrial
Corporation vs. CA, G.R. No. 123050, January 20,
1999).
4. Q.Does the doctrine of non-interference
apply with equal force to administrative
bodies?
A.Yes. When the law provides for an appeal
from the decision of an administrative body
to the Supreme Court or Court of Appeals, it
6 Center for Legal Education and Research
means that such body is co- equal with the
Regional Trial Court in terms of rank and
statute, and logically beyond the control of
the latter (Philippines Sinter Corporation vs.
Cagayan Electric Power and Light Co., Inc., G.R.
No. 127371, April 25, 2002).
2. JURISDICTION
Jurisdiction is the power or authority of a court
to hear, try and decide a case, and to carry its
judgment into effect.
1. Q.How is jurisdiction determined?
A.Jurisdiction is determined by the
allegations of the parties in the complaint,
not in the answer (Padlan vs Dinglasan, G.R.
No. 180321, March 20, 2013.
Jurisdiction as Authority to Execute
Jurisdiction is also considered as an authority to
execute the decisions rendered by the court.
 Q. What is the importance of the authority
to execute decisions?
A. The power to control the execution of its
decision is an essential aspect of jurisdiction.
The most important part of a litigation,
whether civil or criminal, is the process
ofexecution of decisions where supervening
events may change the circumstance of the
parties and compel courts to
intervene and adjust the rights of litigants to
prevent unfairness (Echegaray vs. Secretary of
Justice, G.R. No. 132601, January 19, 1999).
Judicial Power is the duty of the courts of
justice to:
a) settle actual controversies involving rights
which are legally demandable and
enforceable; and
b) determine whether or not there has been
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of the government
(Art. VIII, Sec. 1 1987 Constitution).
Test of Jurisdiction: Whether the court has the
power to enter into inquiry and not whether the

decision is right or wrong (Herrera vs. Barreto, G.R.
No. 8692, September 10, 1913).
Effect of Lack of Jurisdiction: Any decision,
judgment, resolution or final order rendered by
court without jurisdiction shall be NULL and
VOID(Bilag vs. Ay-ay, G.R. No. 189950, April 24,
2017).
Aspects of Jurisdiction
1. Jurisdiction over the subject matter
2. Jurisdiction over the parties
3. Jurisdiction over the issues of the case
4. Jurisdiction over the res or property in
litigation(Riano, Civpro vol. 1 Bar Lecture Series,
2016 ed., p.54)
2.A. CLASSIFICATION OF JURISDICTION
2.A.1. Distinguish: Original and Appellate
1. Original Jurisdiction – Power of the court
to take judicial cognizance of a case
instituted for judicial action for the first time
under conditions provided by law(Riano,
Civpro vol. 1 Bar Lecture Series, 2016 ed., p.47).
2. Appellate Jurisdiction – Authority of a
court higher in rank to re-examine the final
order or judgment of a lower court which
tried the case now elevated for judicial
review(Riano, Civpro vol. 1 Bar Lecture Series,
2016 ed., p.47).
It includes the authority to review the final
order or judgment of a lower court with the
power to modify, reverse, sustain, affirm or
remand the same.
Note: Metropolitan Trial Courts, Municipal Circuit
Trial Courts and Municipal Trial Courts are courts
of original jurisdiction. These courts have no
appellate jurisdiction.
The Regional Trial Court is a court of original
jurisdiction with respect to cases originally filed
with it. But it is also a court of appellate
jurisdiction with respect to cases decided by the
Municipal Trial Courts within its territorial
jurisdiction (B.P. 129, Sec. 22).
Purple Notes
Remedial Law
Sandiganbayan has both original and appellate
jurisdiction (Duncano vs. Sandiganbayan, G.R. No.
191894, July 15, 2015).
CA is primarily a court of appellate jurisdiction
with competence to review judgments of the
RTCs and specified quasi-judicial agencies [Sec.
9(3), B.P. 129]. It is also a court of original
jurisdiction with respect to cases filed before it
involving issuance of writs of certiorari,
mandamus, quo warranto, habeas corpus, and
prohibition. Further, CA is a court of original and
exclusive jurisdiction over actions for annulment
of judgments of RTCs (Sec. 9 (1),(2), B.P. 129).
The Supreme Court is also fundamentally a court
of appellate jurisdiction but it may also be a court
of original jurisdiction over cases affecting
ambassadors, public ministers and consuls, and
in cases involving petitions for certiorari,
prohibition and mandamus(Sec.5 (1), Art.VIII,
Constitution of the Philippines).
However, the Supreme Court en banc is not an
appellate court to which decisions or resolutions
of a division of the Supreme Court may be
appealed (Riano, Civil Procedure Vol. I, 2016 ed.,, p.
48).
2.A.2. Distinguish: General and Special
1. General Jurisdiction – Power to adjudicate
all controversies except those expressly
withheld from the plenary powers of the
court.
2. Special Jurisdiction – The jurisdiction of the
MTC to take cognizance of petitions for (i) Bail
and (ii) Habeas Corpus cases in the absence
of RTC judges.
Note: Not in the absence of Regional Trial
Courts, but only of the judges therein.
Special Jurisdiction restricts the court‘s
jurisdiction only to particular cases and subject to
such limitations as may be provided by the
governing law (Regalado, Remedial Law
Compendium, Vol. 1, 10th Ed.).
A court may also be considered ―general‖ if it has
the competence to exercise jurisdiction over
cases not falling within the jurisdiction of any
Bar Operations C ommissions 7
 Purple Notes
Remedial Law
court, tribunal, person or body exercising judicial
or quasi-judicial functions (Sec.19 (6), Sec. 20, B.P.
129). It is in this context that the Regional Trial
Court is considered a court of general jurisdiction.
(Riano, Civil Procedure, 2009 ed., p. 41)
2.A.3.Distinguish:ExclusiveandConcurrent
1. Exclusive Jurisdiction – Power to
adjudicate a case or proceeding to the
exclusion of all other courts at that stage.
2. Concurrent Jurisdiction – Power conferred
upon two (2) or more courts of different
levels, to exercise original jurisdiction over a
particular case or subject matter; also called
―coordinate jurisdiction‖.
Note: Concurrent jurisdiction applies only to
original and not appellate jurisdiction. In
appeals, there is only one court that has
jurisdiction, thus, jurisdiction in appeals is always
exclusive.
Other Classification of Jurisdiction
 Territorial Jurisdiction – Exercised within
the geographical limits of the place where the
court is located.
 Extra-Territorial Jurisdiction – Exercised
beyond the confines of the territory where the
court is located.
 Limited Jurisdiction – Power of the court is
limited to particular cases, as may be provided
by the governing law.
 Delegated Jurisdiction – The grant of
authority upon a lower court (MTC) to hear or
determine a case not originally under its
jurisdiction. Particularly, the Supreme Court
may assign an MTC to hear and determine
cadastral or land registration cases covering
lots where there is no controversy or
opposition, or in case of contested lots, the
value of which does not exceed Php.
100,000(B.P. 129, As amended, Section 24).
Note: On this special case, appeal is to the Court
of Appeals and not to the RTC.
8 Center for Legal Education and Research
 Primary Jurisdiction – Authority of the
administrative bodies to take cognizance of
certain cases before they can be filed with
the regular courts.
 Q. Who has the primary jurisdiction to
investigate all the cases cognizable with
the Sandiganbayan?
A.All cases cognizable by
theSandiganbayan in the exercise of
itsoriginal jurisdiction must be
investigated by the Office of the
Ombudsman in the exercise of its
primary jurisdiction (De Lima vs.
Guerrero, G.R. No. 229781, October 10,
2017).
 Residual Jurisdiction – Jurisdiction of a
trial court that remains even after it has lost
jurisdiction over the case because of appeal.
Note: To have residual jurisdiction, there
must be trial.
 Equity Jurisdiction - aims to provide
complete justice in cases where a court of
law is unable to adapt its judgments to the
special circumstances of a case because of a
resulting legal inflexibility when the law is
applied to a given situation. The purpose of
the exercise of equity jurisdiction, among
others, is to prevent unjust enrichment and
to ensure restitution (Regulus Dev‘t., Inc. vs.
Dela Cruz, G.R. No. 198172, January 25, 2016).
 Split Jurisdiction – Jurisdiction that is
anathema to procedure (City of Manila vs.
Judge Cuerdo, G.R. No. 175723, February 4,
2014).
Note: There should be no two courts
exercising appellate jurisdiction over a
particular case in the sense that the party
can choose where to appeal.
 Expanded Jurisdiction - A grant of
appellate jurisdiction implies that there is
included in it the power necessary to
exercise it effectively, to make all orders that
will preserve the subject of the action, and
to give effect to the final determination of
the appeal. It carries with it the power to

protect that jurisdiction and to make the
decisions of the court thereunder effective.
The court, in aid of its appellate jurisdiction,
has authority to control all auxiliary and
incidental matters necessary to the efficient
and proper exercise of that jurisdiction (City
of Manila vs. Judge Cuerdo, G.R. No. 175723,
February 4, 2014).
2.B.DOCTRINES OF HIERARCHY OFCOURTS
AND CONTINUITY OF JURISDICTION
Doctrine of hierarchy of courts
Where the courts have concurrent jurisdiction
over a subject matter, such concurrent
jurisdiction does not grant the party seeking relief
the absolute freedom to file a petition in any
court of his choice. Pursuant to this doctrine, a
case must be filed first before the lowest court
possible having the appropriate jurisdiction,
except if one can advance a special reason for
which would allow a party a direct resort to a
higher court (RianoBk. 2, Civil ProcedureVol. 1 Bar
Lecture Series 2016 ed., p.43).
 Q.What is Doctrine of continuity of
jurisdiction?
A. In view of the principle that once a court
has acquired jurisdiction, that jurisdiction
continues until the court has done all that it
can do in the exercise of that jurisdiction.
This principle also means that once
jurisdiction has attached, it cannot be
ousted by subsequent happenings or events,
although of a character which would have
prevented jurisdiction from attaching in the
first instance. The court, once jurisdiction has
been acquired, retains that jurisdiction until it
finally disposes of the case (Abad vs. RTC
Manila, G.R. No. L-65505 October 10, 1987).
 Q.Does the finality of judgment deprive the
court of jurisdiction over the case?
A.Even the finality of the judgment does
nottotally deprive the court of jurisdiction
over thecase. What the court loses is the
power to amend, modify or alter the
judgment. Even after the judgment has
become final, the court retains jurisdiction to
enforce and execute it (Echegaray vs. Secretary
Purple Notes
Remedial Law
of Justice, G.R. No. 132601, January 19, 11999),
except in the case of the existence of a law
that divests the court of jurisdiction.
Instances when doctrine is not applicable
1. Where a subsequent statute expressly
prohibits the continued exercise of
jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent law;
3. When accused is deprived of his constitutional
right, such as where the court fails to provide
counsel for the accused who is unable to
obtain one and does not intelligently waive his
constitutional right;
4. Where the statute expressly provides, or is
construed to the effect that it is intended to
operate as to actions pending before its
enactment;
5. When the proceedings in the court acquiring
jurisdiction is terminated, abandoned or
declared void;
6. Once appeal has been perfected; and,
7. Curative statutes (Herrera, Vol. I, p. 106, 2007
ed.).
Exceptions to the doctrine of hierarchy of
courts
1. When there are genuine issues of
constitutionality that must be addressed at the
most immediate time;
2. When the issues involved are of
transcendental importance;
3. Cases of first impression;
4. The constitutional issues raised are better
decided by the Court;
5. Exigency in certain situations;
6. The filed petition reviews the act of a
constitutional organ;
7. When petitioners rightly claim that they had
no other plain, speedy, and adequate remedy
in the ordinary course of law that could free
them from the injurious effects of
respondents' acts in violation of their right to
freedom of expression; and
8. The petition includes questions that are
"dictated by public welfare and the
advancement of public policy, or demanded
by the broader interest of justice, or the
orders complained of were found to be patent
nullities, or the appeal was considered as
Bar Operations C ommissions 9
 Purple Notes
Remedial Law
clearly an inappropriate remedy." (Gios-Samar 5. The findings of fact are conflicting.
vs. DoTC, G.R. No. 217158, March 12, 2019) 6. There is no citation of specific evidence on
which the factual findings are based.
2.C.JURISDICTION OF 7. The findings of absence of facts are
VARIOUSPHILIPPINE COURTS contradicted by the presence of evidence
on record.
2.C.1. Supreme Court 8. The findings of the Court of Appeals are
contrary to those of the trial court.
Exclusive Original 9. The Court of Appeals manifestly
overlooked certain relevant and undisputed
Petitions for the issuance of writs of certiorari, facts that, if properly considered, would
prohibition and mandamus, Quo warranto, and justify a different conclusion.
Habeas Corpus (CPMQH) against the following: 10. The findings of the Court of Appeals are
beyond the issues of the case.
a) Court of Appeals; 11. The findings of the Court of Appeals are
b) Commission on Elections; contrary to the admissions of both parties.
c) Commission on Audit; (Bicol Agro-Industrial Producers Cooperative,
d) Sandiganbayan; Inc. (BAPCI) vs. Obias, G.R. No. 172077,
e) Court of Tax Appeals en banc October 9, 2009).

Appellate Appeal by Petition for Review on Certiorari

Appeal by Notice of Appeal 1. Appeals from the CA under Rule 45.

From the RTC or the Sandiganbayan, in all
criminal cases in which the penalty imposed is
reclusion perpetua or higher, and those involving
other offenses which, although not so punished,
arose out of the same occurrence or which may
have been committed by the accused on the
same occasion, as that giving rise to the more
serious offense, regardless of whether the
accused are charged as principals, accomplices or
accessories, or whether they have been tried
jointly or separately. The SC generally reviews
only questions of law which are decided by the
court a quo.
General Rule: When supported by
substantial evidence, the findings of fact of
the CA are conclusive and binding on the
parties and are not reviewable by the SC.
2. Appeals from the Sandiganbayan on pure
questions of law. In cases where the penalty
imposed is reclusion perpetua, life
imprisonment or death, questions of fact may
likewise be entertained.
3. Appeals from the RTC exercising original
jurisdiction in certain cases.
4. If there is no question of fact and the case
involves:
a) Constitutionality or validity of any treaty,
international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance, or regulation is in
question.
b) Legality of any tax, impost, assessment, or
toll, or any penalty imposed in relation
thereto.
c) Jurisdiction of lower courts.

Exceptions: Questions of fact are decided by Note: If, in addition to abovementioned

the SC only on the following instances: cases, questions of fact and law are involved,
the aggrieved party shall appeal to the CA
1. The conclusion is grounded on whose final judgment may be reviewed,
speculations, surmises or conjectures. reversed, modified or affirmed by the SC on
2. The inference is manifestly mistaken, writ of certiorari.
absurd or impossible.
3. There is grave abuse of discretion. d) All cases in which only errors or questions
4. The judgment is based on a of law are involved (i.e., questions or
misapprehension of facts.

10 Center for Legal Education and Research


errors of law only as decided or committed
by the lower courts)
Note: Even questions of facts can be raised on
appeal in Writ of Amparo, Writ of Habeas Data,
and Writ of Kalikasan(Riano, Civpro vol. 1 Bar
Lecture Series, 2016 ed., Pp. 92-95).
Concurrent Jurisdiction
 SC with the Court of Appeals (CA)
Petitions for certiorari, prohibition and mandamus
against the following:
1) RTC
2) National Labor Relations Commission (NLRC);
3) Civil Service Commission; and,
4) Other Quasi-Judicial Agencies.
Relevant principles under the power of
concurrent jurisdiction
1) The Supreme Court is not a trier of facts;
2) One may file a case directly with the
Supreme Court based on the doctrine of
transcendental importance, which provides
that the transcendental importance of some
cases to the publicdemand that they be
settled promptly and definitely, brushing
aside, if we must, technicalities of
procedure.
3) Doctrine of hierarchy of courts. Such
hierarchy is determinative of the venue of
appeals, and should also serve as a general
determinant of the appropriate forum for
petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy
most certainly indicates that petitions for the
issuance of extraordinary writs against first
level ("inferior") courts should be filed with
the Regional Trial Court, and those against
the latter, with the Court of Appeals(Gio-
Samar, Inc. vs. Department of Transportation and
Communications, G.R. No. 217158, March 12,
2019).
 SC with the Sandiganbayan (SB)
Petitions for mandamus, prohibition, certiorari,
habeas corpus, injunction, and other ancillary
writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature,
Purple Notes
Remedial Law
including quo warranto, arising or that may arise
in cases filed or which may be filed under E.O.
Nos. 1, 2, 14 and 14-A, issued in 1986
(Sequestration of Ill-gotten Wealth by Pres. Marcos, his
Family and Friends).
 SC with the SB, CA and RTC
Petition for writ of amparo and petition for writ of
habeas data.
 SC with the CA and RTC
1) Petitions for habeas corpus and quo
warranto;
2) Petitions for writs of certiorari, prohibition
and mandamus against lower courts or
bodies;
3) Petition for Writ of Amparo;
4) Petition for Writ of Habeas Data
5) Petition for Writ of Kalikasan
 SC with the RTC
Actions affecting ambassador, other public
ministers and consuls.
2.C.2. Court of Appeals
Exclusive original
Actions for annulment of judgments of the RTC
on the grounds of extrinsic fraud and lack of
jurisdiction (Rule 47).
Appellate
Appeal by Notice of Appeal or Record on
Appeal (Ordinary Appeal)
1) Appeals from the judgments of the RTC in
the exercise of its original jurisdiction, except
in all cases where only questions of law are
involved, which are appealable to the SC by
petition for review on certiorariunder Rule
45.
2) Appeals from the RTC on constitutional, tax
and jurisdictional questions which involve
questions of fact.
3) Appeal from decisions and final orders of the
Family Courts (R.A. No. 8369).
Appeal by Petition for Review
Bar Operations C ommissions 11
 Purple Notes
Remedial Law
An appeal may be taken to the CA whether it
involves questions of fact, mixed questions of
fact and law, or questions of law, in the following
cases:
Regular (Rule 42)
Appeals in cases decided by the RTC in the
exercise of its appellate jurisdiction.
Special (Rule 43)
Appeals from the CSC, awards, judgments, final
orders or resolutions of or, authorized by, quasi-
judicial agencies in the exercise of their quasi-
judicial functions.
2.C.3. Court of Tax Appeals (CTA)
Exclusive appellate jurisdiction to review by
appeal:
1. Decisions of CIR in disputed assessments,
refunds, or other matters arising under the
NIRC or other laws administered by the BIR;
2. Inaction by the CIR involving matters above,
where the NIRC provides a specific period of
action, in which case the inaction shall be
deemed a denial.
Note: Sec. 3, Rule 4, of the CTA Rules (A.M.
No. 05-11-07-CTA)added that an appeal in case
of inaction shall be deemed a denial ―for
purposes of allowing the taxpayer to appeal
his case to the CTA and does not necessarily
constitute a formal decision of the
Commissioner of Internal Revenue on the tax
case‖.
3. Decisions of RTC in local tax cases originally
decided or resolved by them.
4. Decisions of the Commissioner of Customs in
cases involving liability for customs duties.
5. Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the
assessment and taxation of real property
originally decided by the provincial or city
board of assessment appeals.
6. Decisions of the Secretary of Finance on
customs cases elevated to him automatically
for review from Commissioner of Customs
which are adverse to the Government.
7. Decisions of the Secretary of Trade and
12 Center for Legal Education and Research
Industry, in the case of non-agricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving dumping and countervailing duties
under the Tariff and Customs Code(Riano,
Civpro vol. 1 Bar Lecture Series, 2016 ed., p.99).
Jurisdiction of the CTA over Criminal
Offenses
Exclusive Original Jurisdiction over cases
involving criminal offenses arising from violations
of the NIRC or Tariff and Customs Code and
other laws administered by the BIR or the Bureau
of Customs, where the principal amount of taxes
and fees, exclusive of charges and penalties,
claimed is at least one million pesos
(Php.1,000,000.00), or where there is a specified
amount claimed(Riano, Civpro vol. 1 Bar Lecture
Series, 2016 ed., p.100).
Exclusive Appellate Jurisdiction
a) Over appeals from the judgments RTC in tax
cases originally decided by them; and,
b) Over petitions for review of the judgments of
RTC in the exercise of their appellate
jurisdiction over tax cases originally decided
by the MTC(Riano, Civpro vol. 1 Bar Lecture
Series, 2016 ed., p.100).
Jurisdiction of the CTA over Tax Collection
Cases
Exclusive Original Jurisdiction in tax
collection cases involving final and executory
assessments for taxes, fees, charges and
penalties when the amount is at least one million
pesos (Php.1,000,000.00).
Exclusive Appellate Jurisdiction
a) Over appeals from the judgments of RTC in
tax cases originally decided by them and;
b) Over petitions for review of the judgments of
RTC in the exercise of their appellate
jurisdiction over tax cases originally decided
by the MTC (Sec. 7, R.A. No. 9282)
Note: In criminal offenses involving an amount
less than one million pesos, the RTC or MTC shall
have jurisdiction. Whether the case falls under

the jurisdiction of the RTC or MTC depends on
B.P. 129 as amended, i.e. length of
imprisonment, and NOT the amount involved.
In other words, the MTC has jurisdiction where
the criminal offense is punishable with
imprisonment not exceeding six (6) years. This is
irrespective of the amount of fine, and regardless
of other imposable accessory or other penalties,
including the civil liability arising from such
offenses or predicated thereon, irrespective of
kind, nature, value, or amount thereof (Sec. 32(2),
B.P. 129, as amended).
Otherwise, the RTC has jurisdiction (Sec. 20, B.P.
129 as amended).
Splitting of Jurisdiction
CTA has jurisdiction over a special civil action for
certiorari assailing an interlocutory order issued
by the RTC in a local tax case.
 Q. What is the extent of th jurisdiction of the
CTA over a special civil action?
A.The power of the CTA includes that of
determining whether or not there has been
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the
RTC in issuing an interlocutory order in cases
falling within the exclusive appellate
jurisdictionof the tax court.Indeed, in order
for any appellate court to effectivelyexercise
its appellate jurisdiction, it must have the
authority to issue, among others, a writ of
certiorari. To rule otherwise would lead to an
absurd situation where one court decides an
appeal in the main case while another court
rules on an incident in the very same case. It
would be somewhat incongruent with
the pronounced judicial abhorrence to
split jurisdiction to conclude that the
intention of the law is to divide the
authority over a local tax case filed with the
RTC by giving to the CA or this Court
jurisdiction to issue a writ of certiorari against
interlocutory orders of the RTC, but giving to
the CTA the jurisdiction over the appeal from
the decision of the trial court in the same
case. It is more in consonance with logic
and legal soundness to conclude that
the grant of appellate jurisdiction to the
Purple Notes
Remedial Law
CTA over tax cases filed in and decided
by the RTC carries with it the power to
issue a writ of certiorari when
necessary in aid of such appellate
jurisdiction(Cityof Manila vs. Judge Cuerdo,
G.R. No. 175723, February 4, 2014).
2.C.4. Sandiganbayan(Sec. 4, R.A. No. 8249,
promulgated February 5, 1997)
Sandiganbayan is not a constitutional court, it
is a constitutionally-mandated court created by
law, as required by the Constitution.
Exclusive Original
The uniqueness in the jurisdiction of the
Sandiganbayan is that it is determined by three
(3) factors, embodied in the following questions:
a) What was the offense committed?
b) Who committed the offense?
c) How was the offense committed?
A. What are the crimes committed?
1. Violations of R.A. 3019, Anti-Graft and
Corrupt Practices Act;
2. Violations of R.A. 1379 (on Ill-gotten
Wealth);
3. Violations of Executive Orders issued
regarding the Marcoses‘ Wealth or the
PCGG cases, both civil and criminal (E.O.
Nos. 1, 2, 14 and 14-A);
4. Bribery (Chapter II, Section II, Title VII, of
Book II of the Revised Penal Code);
5. Other offenses or felonies, whether simple
or complexed with other crimes,
committed in relation to office:
 Estafa(Serana vs. Sandiganbayan,
 G.R. No. 162059, January 22, 2008)
 Falsification (Garcia vs. Sandiganbayan,
G.R. No. 165835, June 22, 2005)
 Plunder (R.A. No. 7080)
B. Who committed the offense?
Where one or more of the accused are
officials occupying the following positions in
the government, whether in a permanent,
acting or interim capacity, at the time of the
commission of the offense.
Bar Operations C ommissions 13
 Purple Notes
Remedial Law
Officials of the executive branch occupying
the positions of Regional Director and higher,
otherwise classified as grade ―27‖ and higher,
of the Compensation and Classification Act of
1989 (R.A. No. 6758), specifically including:
1. Provincial Governors, Vice-Governors,
Members of the Sangguniang
Panlalawigan, and Provincial
Treasurers, Assessors, Engineers, and
other Provincial Department Heads.
2. City Mayors, Vice-Mayors, Members of
the Sangguniang Panlungsod, city
treasurers, assessors, engineers and
other city department heads.
3. Officials of the diplomatic service
occupying the position of consul or
higher
4. Philippine army and air force colonels,
naval captains, and all officers of
higher ranks.
5. Officers of the Phi. Nat‘l. Police while
occupying the position of provincial
director and those holding the rank of
senior superintendent or higher.
6. City and Provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor.
7. Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state
universities or educational institutions
or foundations.
Note: The salary grade ―27‖
requirement does NOT apply if the
officer involved is any of those
enumerated in (7) above or those not
intended to be salary-graded (Serana vs.
Sandiganbayan, G.R. no. 162059, January
22, 2008).
8. Members of Congress and officials
thereof classified as Grade ―27‖ and up
under the Compensation and Position
Classification Act of 1989.
9. Members of the Judiciary without
prejudice to the provisions of the
Constitution.
10. Chairmen and members of
Constitutional Commissions, without
14 Center for Legal Education and Research
prejudice to the provisions of the
Constitution.
11. All other national and local officials
classified as Grade ―27‖ and higher
under the Compensation and Position
Classification Act of 1989.
C. How was the crime committed?
In criminal cases, Sandiganbayan shall have
original jurisdiction where there are specific
allegations of facts showing that the offense
was committed in relation to their office.
Otherwise, regular courts shall take
cognizance in accordance to their vested
jurisdictions(R.A. No.8249, Section 4).
―In relation to the public office‖ means
that the public office must be an essential
ingredient to the commission of the offense
or that the office facilitated the commission
of the offense.
 There is no direct relation between the
commission of the crime of rape with
homicide and the petitioner's office as
municipal mayor because public office is
not an essential element of the crime
charged. The offense can stand
independently of the office (Sanchez vs.
Demetriou, G.R. No. 111771-77, November 9,
1993).
 Even if the position is not an essential
ingredient of the offense charged, if the
information avers the intimate connection
between the office and the offense, this
would bring the offense ―committed in
relation to the public office‖ (Riano,
Criminal Procedure, 2016 ed., p. 55).
 While it is true that public office is not an
element of the crime of acts of
lasciviousness, nonetheless, the accused
could not have committed the crimes
charged were it not for his being the
judge of the court where the victim was
working. Taken together with the fact
that the accused had the authority to
recommend the appointment of the
victim as an employee, the crimes
committed were, therefore, intimately
connected with his office (Esteban vs.

Sandiganbayan, G.R. No. 146646-49, March
11, 2005).
 Mere allegation in the amended
information that the offense charged was
committed in relation to his office is not
sufficient. The phrase is merely a
conclusion of law, not a factual averment
that would show the close intimacy
between the offense charged and the
discharge of the accused‘s official duties
(Lacson vs. Executive Secretary, G.R. No.
128096, January 20, 1999).
Appellate Jurisdiction
From the Regional Trial Courts in cases under
P.D. No. 1606, as amended by P.D. No. 1861,
R.A. No. 7975 and R.A. No. 8294, whether or not
the cases were decided by them in the exercise
of their original or appellate jurisdictions
(Regalado, Remedial Law Compendium, Vol. II, p.
277).
Appeal from final judgments, resolutions or
orders of regular courts where all the accused are
occupying positions lower than Salary Grade 27
or are not otherwise covered by Sec.1(A)
subsection 1 above.
 Q. Which Court has exclusive original
jurisdiction in all cases involving violations of
R.A. No. 3019 committed by public officers?
A.More importantly, the Sandiganbayan is a
special criminal court which has exclusive
original jurisdiction in all cases involving
violations of R.A. No. 3019 committedby
certain public officers, as enumerated in P.D.
1606 as amended by R.A. No. 8249. This
includes private individuals who are charged
as co-principals, accomplices or accessories
with the said public officers. In the instant
case, respondent is being charged for
violation of Section 3(g) of R.A. 3019, in
conspiracy with then Secretary Enrile.
Ideally,under the law, both respondent
and Secretary Enrile should have been
charged before and tried jointly by the
Sandiganbayan. However, by reason of the
death of the latter, this can no longer be
done. Nonetheless, it does not follow that the
Purple Notes
Remedial Law
SB is already divested of its jurisdiction over
the person of and the case involving herein
respondent. To rule otherwise would mean
that the power of a court to decide a case
would no longer be based on the law defining
its jurisdiction but on other factors, such as
the death of one of the alleged offenders
(People vs. Go, G.R. No. 168539, March 25, 2014)
2.C.5. Regional Trial Courts
Exclusive Original
Civil Cases
1. Actions in which the subject of the litigation
is incapable of pecuniary estimation.
2. Actions which involve the title to, or
possession of real property, or any interest
therein, where the assessed value of the
property involved exceeds Php. 20,000 or
exceeds Php. 50,000 in Metro Manila, except
actions for forcible entry into and unlawful
detainer.
3. Admiralty and maritime jurisdiction where the
demand or claim exceeds Php. 300,000 or
exceeds Php. 400,000 in Metro Manila.
4. Matters of probate, both testate and
intestate, where the gross value of the estate
exceeds Php. 300,000 or exceeds Php.
400,000 in Metro Manila.
5. General Jurisdiction: Cases not within the
exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-
judicial functions.
6. All other cases where demand (exclusive of
interest, damages of whatever kind,
attorney‘s fees, litigation expenses, and
costs), or the value of the property in
controversy, exceeds Php. 300,000 or
exceeds Php. 400,000 in Metro Manila.
Note: If the claim for damages is the main
cause of action, amount thereof shall be
considered in determining the jurisdiction of
the court.
7. Actions and special proceedings falling within
the exclusive original jurisdiction of Juvenile
and Domestic Relations Court and Court of
Agrarian Relations.
Bar Operations C ommissions 15
 Purple Notes
Remedial Law
Incapable of Pecuniary Estimation- the
claim or the issue cannot be reduced in an
amount.
Examples:
a. Annulment or rescission of contract;
b. Specific performance;
c. Cancellation of title – the ultimate relief is the
cancellation of the title, the subject is only
the title itself; this is different from actions
involving title to, or possession of, real
property, the jurisdiction of which may be
determined by the assessed value;
d. Cancellation of mortgage.
To determine the nature of an action, whether or
not its subject matter is capable or incapable of
pecuniary estimation, the nature of the principal
action or relief sought must be ascertained. If the
principal relief is for the recovery of a sum of
money or real property, then the action is
capable of pecuniary estimation. However, if the
principal relief sought is not for the recovery of
sum of money or real property, even if a claim
over a sum of money or real property results as a
consequence of the principal relief, the action is
incapable of pecuniary estimation(First Sarmiento
Property Holdings, Inc. vs. PNB,G.R. No. 202836, June
19, 2018).
If the action is primarily for the recovery of a sum
of money, the claim is considered capable of
pecuniary estimation, and whether jurisdiction is
in the municipal courts or in the courts of first
instance would depend on the amount of the
claim.However, where the basic issue is
something other than the right to recover a sum
of money, where the money claim is purely
incidental to, or a consequence of, the principal
relief sought, this Court has considered such
actions as cases where the subject of the
litigation may not be estimated in terms of
money, and are cognizable exclusively by the
RTC (Roldan vs. Barrios, G.R. No. 214803, April 23,
2018).
 While it is true that petitioner does not
directly seek the recovery of title or
possession of the property in question, his
action for annulment of sale and his claim for
damages are closely intertwined with the
issue of ownership of the building which,
16 Center for Legal Education and Research
under the law, is considered immovable
property. It is the recovery of such property
which is the petitioner‘s primary objective.
The prevalent doctrine is that an action for
the annulment or rescission of a sale of real
property does not operate to efface the
fundamental and prime objective and nature
of the case which is to recover said real
property. It is a REAL ACTION. A careful
examination of the complaint reveals that it is
a real action involving not only the recovery
of real properties, but likewise the
cancellation of the titles thereto. Thus, the
filing fees must be based on the assessed
value of the property involved (Ruby Shelter
Builders vs. Formaran, G.R. No. 175914, February
10, 2009).
Criminal Cases
Cases not within the exclusive jurisdiction of any
court, tribunal or body (B.P. 129, Sec. 20), such as
those:
1. Where the penalty provided by law exceeds 6
years imprisonment irrespective of the fine.
2. Not falling under the original jurisdiction of the
Sandiganbayan
3. Where the only penalty provided by law is a
fine exceeding Php. 4,000 (Adm. Cir. 09-94)
4. Libel (Art. 360, Revised Penal Code)
 Q.Does the Trial court lose its jurisdiction
over the criminal aspect of offenses
commited by justices of appellate courts
and judges of lower courts?
A.The acts or omissions of a judge may
well constitute both a criminal act and an
administrative offense at the same time.
Trial courts retain jurisdiction over the
criminal aspect of offenses committed by
justices of appellate courts and judges of
lower courts (OCA vs. Sardido, A.M. No.
MTJ-01-1370, April 25, 2003)
Appellate
Cases decided by the MTC, MeTC, and MCTC in
their respective territorial jurisdictions except
decisions of lower courts in the exercise of
delegated jurisdiction(Riano, Civpro vol. 1 Bar
Lecture Series, 2016 ed., p.126).

2.C.6. Family Courts(R.A. No. 8369, Sec. 5)
The Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:
1) Criminal cases where one or more of the
accused is below eighteen (18) years of age
but not less than nine (9) years of age or
where one or more of the victims is a minor
at the time of the commission of the offense;
Note: If the minor is found guilty, the court
shall promulgate sentence and ascertain any
civil liability which the accused may have
incurred. The sentence, however, shall be
suspended without need of application
pursuant to P.D. No. 603, otherwise known
as the "Child and Youth Welfare Code".
2) Petitions for guardianship, custody of
children, habeas corpus in relation cusody of
minor;
3) Petitions for adoption of children and the
revocation thereof;
4) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property
relations of husband and wife or those living
together under different status and
agreements, and petitions for dissolution of
conjugal partnership of gains;
5) Petitions for support and/or
acknowledgment;
6) Summary judicial proceedings brought under
the provisions of E.O. No. 209, otherwise
known as the "Family Code of the
Philippines";
7) Petitions for declaration of status of children
as abandoned, dependent or neglected
children, petitions for voluntary or involuntary
commitment of children; the suspension,
termination, or restoration of parental
authority and other cases cognizable under
P.D. No. 603, E.O. No. 56, Series of 1986,
and other related laws;
8) Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
9) Violations of Republic Act No. 7610,
otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation
and Discrimination Act," as amended by
Republic Act No. 7658; and,
Purple Notes
Remedial Law
10) Domestic violence cases against women and
children.
Cases of Domestic Violence Against:
1. Women: acts of gender-based violence that
results, or are likely to result in physical,
sexual or psychological harm or suffering to
women; and, other forms of physical abuse
such as battering or threats and coercion
which violate a woman's personhood,
integrity and freedom movement.
2. Children: include the commission of all forms
of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other
conditions prejudicial to their
development(R.A. 7610).
Special Provisional Remedies
Restraining order may be issued against the
accused or defendant upon verified application in
cases of violence among the family members
living in the same domicile/household.
Court may order the temporary custody of
children in all civil actions for their custody,
support pendete lite, including deduction from
the salary, and use of conjugal home and other
properties in civil actions for support(R.A. 8369,
Section 7).
Note: The Family Courts are creations of law, as
distinguished from Special Commercial Courts
and Intellectual Property Courts which are
created by Supreme Court issuances.
2.C.7. Metropolitan Trial Courts,
MunicipalTrial Courts, Municipal Trial
Courtsin Cities, and Municipal Circuit
TrialCourts
Exclusive Original
1. Actions involving personal property whose
value does not exceed Php. 300,000 or does
not exceed Php. 400,000 in Metro Manila;
2. Probate proceedings, both testate and
intestate, where the gross value of the estate
does not exceed Php. 300,000 or does not
exceed Php. 400,000 in Metro Manila;
3. Actions involving title to or possession of real
property, or any interest therein where the
Bar Operations C ommissions 17
 Purple Notes
Remedial Law
assessed value or interest therein does not
exceed Php. 20,000 or does not exceed Php.
50,000 in Metro Manila;
4. Admiralty and maritime cases where the
demand or claim does not exceed Php.
300,000 or does not exceed Php. 400,000 in
Metro Manila;
5. Inclusion and exclusion of voters (B.P. 881,
Sec. 138);
6. Provisional remedies in principal actions
within their jurisdiction;
7. All demand for money not exceeding Php.
400,000 in Metro Manila;
8. Small Claims Cases (A.M. No. 08-8-7-SC) where
the value of the demand does not exceed
Php. 300,000 (OCA Circular No. 165-2018,
effective August 1, 2018).
Important Note:Effective1 April 2019, the
SC increased the amount covered by Small
Claims cases to Php. 400,000 within Metro
Manila and to Php. 300,000 outside Metro
Manila (OCA Circular No. 45-2019, effective April
1, 2019)
Demand for money excludes interest,
damages of whatever kind, attorney‘s fees,
litigation expenses, and costs, which amount
must be specifically alleged. The said
exclusions are included in determining filing
fees.
In cases where the claim for damages is the
main cause of action, or one of the causes of
action, the amount of such claim shall be
considered in determining jurisdiction.
Criminal Jurisdiction of MTC
1) Violations of the city or municipal ordinances
committed within their respective territorial
jurisdiction (Sec. 32[1], B.P. 129, as amended).
2) Offenses punishable with imprisonment not
exceeding 6 years irrespective of the amount
of fine, and regardless of other imposable
accessory or other penalties, including the
civil liability arising from such offenses or
predicated thereon, irrespective of kind,
nature, value or amount thereof (Sec. 32[2],
B.P. 129, as amended).
3) Offenses under (2) above including those not
falling within the exclusive original
jurisdiction of the Sandiganbayan where
18 Center for Legal Education and Research
none of the accused are occupying positions
corresponding to salary grade ―27‖ and
higher.
4) Offenses involving damage to property
through criminal negligence (Sec. 32[2], B.P.
129, as amended).
5) In cases where the only penalty provided by
law is a fine of not more than Php. 4,000.
(Adm. Cir. 09-94).
6) Cases covered by the Rule on Small Claims.
7) Cases covered by the Rules on Summary
Procedure where the total claim does not
exceed Php. 100,000 or does not exceed
Php. 200,000 in Metro Manila, EXCEPT
probate proceedings (A.M. No. 02-11-09 SC
effective Nov. 25, 2002).
Exception: Cases falling within the exclusive
original jurisdiction of the RTC and of the
Sandiganbayan. This means that the MTC does
not, at all times, have jurisdiction over offenses
punishable with imprisonment not exceeding six
(6) years. This happens if jurisdiction is vested by
law either in the RTC or Sandiganbayan (Riano,
Criminal Procedure, 2016 ed., p. 38).
Summary Procedure In Civil Cases
Forcible Entry and Unlawful Detainer
a) Irrespective of the amount of damages or
unpaid rentals sought to be recovered.
b) Jurisdiction to resolve issue of ownership to
determine only the issue of possession(Riano,
Civpro vol. 1 Bar Lecture Series, 2016 ed., p.653).
Summary Procedure In Criminal Cases
A. Violations of traffic laws, rules and
regulations;
B. Violations of the Rental Law;
C. Violations of city or municipal ordinances;
D. Violations of B.P.22 (Bouncing Checks Law);
(A.M. No.00-11-01-SC, effective April 15, 2003);
E. All other criminal cases where the penalty is
imprisonment not exceeding 6 months and/or
Php. 1,000 fine irrespective of other penalties
or civil liabilities arising there from;
F. Offenses involving damage to property
through criminal negligence where the
imposable fine is not exceeding Php.10,000.

Note: Cases filed by the parties after failure to
reach an amicable settlement in barangay
conciliation proceedings are tried by the MTC in
the exercise of its original jurisdiction.
2.C.8. Shari’aCourts
In general, the Shari'a courts shall have
jurisdiction over cases involving (i) personal
relations; (ii) family and property relations; and,
(iii) commercial transactions, in addition to their
jurisdiction over (iv) criminal cases involving
Muslims (Sec. 5, 9 and 10, Art. VIII, R.A. No. 9054).
Shari’a Appellate Court
1. Exercise original jurisdiction over petitions for
certiorari, prohibition, mandamus, habeas
corpus, and other auxiliary writs and
processes only in aid of its appellate
jurisdiction; and,
2. Exercise exclusive appellate jurisdiction over
all cases tried in the Shari‘a district courts as
established by law (Sec. 9, Art. VIII, R.A. No.
9054).
Note: The decisions of the Shari‘a Appellate
Court shall be final and executory. Nothing herein
contained shall, however, affect the original and
appellate jurisdiction of the Supreme Court, as
provided in the Constitution (Sec. 10, Art. VIII, R.A.
No. 9054)
Shari'a District Court
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under P.D. No. 1083, ―Code of Muslim
Personal Laws of the Philippines‖;
2. All cases involving disposition, distribution
and settlement of the estate of a deceased
Muslim, probate of wills, issuance of letters of
administration or appointment of
administrators or executors regardless of the
nature or the aggregate value of the
property;
3. Petitions for declaration of absence and
death and for cancellation and correction of
entries in the Muslim Registries mentioned in
Title VI, Book Two of P.D. No. 1083;
4. All actions arising from customary contracts
in which the parties are Muslims, if they have
Purple Notes
Remedial Law
not specified which law shall govern their
relations;
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all
auxiliary writs and processes in aid of its
appellate jurisdiction;
Shari'a Circuit Court
1. All cases involving offenses defined and
punished under P.D. No. 1083;
2. All civil actions and proceedings between
parties who are Muslims or have been
married in accordance with Article 13 of P.D.
No. 1083 involving disputes relating to:
a. Marriage;
b. Divorce recognized under Presidential
Decree No. 1083;
c. Betrothal or breach of contract to
marry;
d. Customary dowry;
e. Disposition and distribution of property
upon divorce;
f. Maintenance and support, and
consolatory gifts; and,
g. Restitution of marital rights.
All cases involving disputes relative to communal
properties.
Concurrent Jurisdiction of the
Shari'aDistrict Court with the Circuit Court:
1. Petitions by Muslims for the constitution of
the family home, change of name and
commitment of insane person to any asylum;
2. All other personal and real actions wherein
the parties involved are Muslims except those
for forcible entry and unlawful detainer which
shall fall under the exclusive original
jurisdiction of the Municipal Circuit Courts;
and,
3. All special civil actions for interpleader or
declaratory relief where the parties are
Muslims or the property involved belongs
exclusively to a Muslim.
2.D. ASPECTS OF JURISDICTION
2.D.1. Jurisdiction Over the Persons of the
Parties
Bar Operations C ommissions 19
 Purple Notes
Remedial Law
2.D.1a. How Jurisdiction Over the Plaintiff 2.D.2.Jurisdiction Over the Subject Matter
is Acquired
2.D.2a.Meaning of Jurisdiction over the
Jurisdiction over the plaintiff is acquired by his Subject Matter
filing of the complaint or petition. By doing so, he
submits himself to the jurisdiction of the court.  Q. What is jurisdiction over the subject
(Riano, Civil Procedure Vol. I, 2016ed.,p. 77) matter?

Important: This presupposes timely payment of A. Jurisdiction over the subject matter is the
the correct amount of docket fees. power to hear and determine the general
class to which the proceedings in question
 Q.Is the payment of docket fees required? belong; it is conferred by law and not by the
consent or acquiescence of any or all of the
A.Payment in full of docket fees within parties or by erroneous belief of the court
theprescribed period is not only mandatory, that it exists (Mitsubishi Motors vs. Bureau of
but also jurisdictional. It is an essential Customs,G.R. No.209830,June 17,2015).
requirement, without which, the decision
appealed from would become final and The term, ―subject matter‖ refers to the
executory as if no appeal has been filed (St. item with respect to which the controversy
Louis University vs. Cobarrubias, G.R. No. 187104, has arisen, or concerning which,the wrong
August 03, 2010). has been done, and it is ordinarily the right,
the thing, or the contract under dispute (De la
However, while the court acquires jurisdiction
Rama vs. Mendiola, G.R. No. 135394, April 29,
over any case only upon the payment of the 2003).
prescribed docket fees, its non-payment at
the time of the filing of the complaint does Examples: The terms ‗unlawful detainer‘,
not automatically cause the dismissal of the ‗forcible entry‘, or actions ‗incapable of pecuniary
complaint provided that the fees are paid estimation‘ are subject matters. So are the terms
within a reasonable period(Unicapital, Inc. vs. accionpubliciana, accionreinvindicatoria, partition
Consing, Jr., G.R. Nos. 175277 & 175285, of property, foreclosure of mortgage,
September 11, 2013),
expropriation, habeas corpus and action for
damages, among others (Riano, Civil Procedure,
2.D.1b. How Jurisdiction Over the Vol. 1, 2014 ed., p. 71)
Defendant is Acquired; Civil Cases
2.D.2b.Distinguish: jurisdiction and
1. By valid service of summons; or, exercise of jurisdiction
2. By voluntary appearance in the action which
is equivalent to service of summons. JURISDICTION vs. EXERCISE OF
JURISDICTION
How Jurisdiction Over the Person of the
Accused is Acquired; Criminal Cases Jurisdiction Exercise of Jurisdiction
The power or authority of The exercise of the
a) By lawful arrest; or, a court to hear, try and court‘s power or
b) By voluntary surrender decide a case, and to authority.
carry its judgment into
effect.
Errors in assuming Errors in the exercise of
Jurisdiction Over the Person of the jurisdiction results to jurisdiction results only to
Intervenor error of jurisdiction. errors of judgment.

Note: A judgment tainted Note: A judgment based

Acquired upon the approval of the Motion for with an error of on errors of judgment
Leave to Intervene (Rule 19). jurisdiction is a nullity cannot be considered a
(Riano, Civil Procedure, nullity. It is binding on the

20 Center for Legal Education and Research


Vol. I, 2014 ed., p. 73) parties unless it
reversed or annulled in a
direct proceeding
(Herrera vs. Barretto,
G.R. No. 8692, September
10, 1913).
2. Q. What is exercise of jurisdiction?
A.Where there is jurisdiction over the person
and the subject matter, the decision on all
other questions arising in the case is but an
exercise of jurisdiction. The errors which the
courts may commit in the exerciseof
jurisdiction are merely errors of judgment
which are the proper subjects of an appeal
(Tolentino vs. Leviste, G.R. No. 156118, November
19, 2004).
3. Q. What would be the test of jurisdiction?
A. The test of jurisdiction is whether the
court has the power to enter into the inquiry
and not whether the decision is right or
wrong(Perkins vs. Roxas, G.R. No. 47517, June
27, 1941).
2.D.2c. How jurisdiction is conferred and
determined:
How Jurisdiction over the Subject Matter is
Conferred
General Rule: Jurisdiction over the subject
matter is conferred by law. Nothing else can
confer jurisdiction except the law. Since
jurisdiction over the subject matter is conferred
upon the courts exclusively by law and the lack
thereof affects the very authority of the court to
take cognizance of the case, objections thereto
may be raised at any stage of the proceeding,
even on appeal(Riano, Civpro vol. 1 Bar Lecture
Series, 2016 ed., p.60).
Exceptions:
a. Jurisdiction by Estoppel – after voluntarily
submitting a cause and encountering an
adverse decision on the merits, it is too late
for the losing party to question the
jurisdiction or power of the court(Riano, Civpro
vol. 1 Bar Lecture Series, 2016 ed., p.75).
Purple Notes
Remedial Law
is Note: In Tijam vs. Sibonghanoy(G.R. No. L-
21450, April 15, 1968),the party was barred by
laches from invoking the plea for the first
time on appeal, for the purpose of annulling
everything done in the case, due to the
active participation of said party invoking the
plea.
b. Estoppel in Pais – where a party actively
participated in all stages of the proceedings
before the trial court and invoked its
authority by asking for an affirmative relief,
he is estopped from challenging the trial
court‘s jurisdiction, especially when an
adverse judgment has been rendered (Soliven
vs. Fastforms Philippines, Inc., G.R. No. 139031,
October 18, 2004).
 Q. What is the concept of laches?
A.Laches, in a general sense, is failure
or neglect, for an unreasonable and
unexplained length of time, to do that
which, by exercising due diligence, could
or should have been done earlier; it
is negligence or omission to assert a right
within a reasonable time, warranting a
presumption that the party entitled to
assert it either has abandoned it or
declined to assert it. The doctrine of
laches or of "stale demands" is based
upon grounds of public policy which
requires, for the peace of society, the
discouragement of stale claims and,
unlike the statute of limitations, is not a
mere question of time but is principally a
question of the inequity or unfairness of
permitting a right or claim to be enforced
or asserted (Figueroa vs. People, G.R. No.
147406, July 14, 2008).
Note: Jurisdiction ―conferred by law‖
pertains only to Jurisdiction over the Subject
Matter.
 Q. How is defense of lack of jurisdiction
over the person of a party invoked?
A.Since the defense of lack of jurisdiction
over the person of a party to a case is
NOT one of those defenses which are not
deemed waived under Section 1 of Rule
9, such defense must be invoked in the
Bar Operations C ommissions 21
 Purple Notes
Remedial Law
Answer as an affirmative defense in order
to prevent a waiver of the defense. If the
objection is not raised in the Answer, the
objection to the jurisdiction over the
person of the plaintiff or the defendant is
deemed a waiver thereof.
The inclusion in amotion to dismiss of
othergrounds aside from lack
ofjurisdiction over the person ofthe
defendant shall be
deemedavoluntaryappearance(Rule
14,Sec. 23).
How Jurisdiction over the Subject Matter is
Determined
4. Q.How is jurisdiction over the subject matter
determined?
A. It is a settled rule that jurisdiction over
the subject matter is determined by the
allegations of the complaint regardless of
whether or not the plaintiff is entitled to
claims asserted therein (Laresma vs. Abellana,
G.R. No. 140973, November 11, 2004).
Note: If by the averments of the complaint, the
court has jurisdiction, it does not lose that
jurisdiction just because the defendant makes a
contrary allegation in his motion or answer or
because the court believes that the plaintiff‘s
claims are ridiculous and therefore, untrue. If by
the averments of the complaint, it has
jurisdiction, then it has jurisdiction (Tomas Claudio
Memorial College, Inc., G.R. No. 124262, October 12,
1999).
Objections to Jurisdiction over the Subject
Matter, How Made
1. By act of the parties:
a) By filing a motion to dismiss; or,
b) By raising it as an affirmative defense in
the answer; or
2. By the court motu proprio
When it appears from the pleadings or evidence
on record that the court has no jurisdiction over
the subject matter, the court shall dismiss the
same (Rule 9, Sec. 1).
22 Center for Legal Education and Research
The earliest opportunity of a party to raise the
issue of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Lack of
jurisdiction over the subject matter of the claim is
a ground for a motion to dismiss [Rule 15, Sec.
12(a)(1)].
Under the Omnibus Motion Rule, a motion
attacking a pleading like a motion to dismiss,
shall include all objections then available, and all
objections not so included shall be deemed
waived.(Rule 15,Sec. 9).
The defense of lack of jurisdiction over the
subject matter is, however, a defense not barred
by the failure to invoke the same in a motion to
dismiss already filed. Even if a motion to dismiss
was filed and the issue of jurisdiction was not
raised therein, a party may, when he files an
answer, raise the lack of jurisdiction as an
affirmative defense because this defense is not
barred under the omnibus motion rule.
When the court dismisses the complaint for lack
of jurisdiction over the subject matter, it is
common reason that the court cannot remand
the case to another court with the proper
jurisdiction. Its only power is to dismiss and not
to make any other order (Riano, Civil Procedure, ,
2007 ed.).
When to Object
General rule: Lack of jurisdiction over the
subject matter may be raised at any stage of the
proceedings, even for the first time on appeal.
Reason: Jurisdiction is conferred by law, and
lack of it affects the very authority of the court to
take cognizance of, and to render judgment on,
the action.
Exception: Barred by Estoppel
 Q. What are the instances where lack of
jurisdiction over the subject matter may not
be raised?
A(1). It was petitioners themselves who
invoked the jurisdiction of the court a quo by
instituting an action for reformation of
contract against private respondents. It must
be noted that in the proceedings before the

trial court, petitioners vigorously asserted
their cause from start to finish. Not even
once did petitioners ever raise the issue of
the court‘s jurisdiction during the entire
proceedings which lasted for two years. It
was only after the trial court rendered its
decision and issued a writ of execution
against them in 1998 did petitioners first
raise the issue of jurisdiction ─ and it was
only because said decision was unfavorable
to them. Petitioners thus effectively waived
their right to question the court‘s jurisdiction
over the case they themselves filed (Sps.
Gonzaga vs. CA, , G.R. No. 144025, December 27,
2002).
A(2).While it is true that jurisdiction over the
subject matter may be raised at any stage of
the proceedings since it is conferred by law,
it is nevertheless settled that a party may be
barred from raising it on the ground of
estoppel (La‘o vs. Republic, G.R. No. 160719,
January 23, 2006).
A(3).The Supreme Court frowns upon the
undesirable practice of submitting one‘s case
for decision, and then accepting the
judgment only if favorable, but attacking it
for lack of jurisdiction if it is not (Bank of the
Philippine Islands vs. ALS Management &
Development Corporation, G.R. No. 151821, April
14, 2004).
2.D.2d. Distinguish: Doctrine of Primary
Administrative Jurisdiction and Doctrine of
Exhaustion of Administrative Remedies
Doctrine of Primary
AdministrativeJurisdiction
Under the doctrine of primary jurisdiction, courts
cannot and will not resolve a controversy
involving a question within the jurisdiction of an
administrative tribunal, especially when the
question demands the sound exercise of
administrative discretion requiring special
knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact. The court cannot
arrogate unto itself the authority to resolve a
controversy, the jurisdiction of which is initially
lodged with the administrative body of special
competence (BF Homes, Inc. vs. Manila Electric
Company, G.R. No. 171624, December 6, 2010).
Purple Notes
Remedial Law
If a case is such that its determination requires
the expertise, specialized training, and knowledge
of an administrative body, relief must first be
obtained in an administrative proceeding before
resort to the court is had even if the matter may
well be within the latter‘s proper jurisdiction
(Nestle Philippines, Inc. vs. Uniwide Sales, Inc., G.R.
No. 174674, October 20, 2010).
Objective:To guide the court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect of
some question arising in the proceeding before
the court (Nestle Philippines, Inc. vs. Uniwide Sales,
Inc., G.R. No. 174674, October 20, 2010).
Doctrine of Exhaustion of Administrative
remedies
General Rule:If a remedy within the
administrative machinery can still be resorted to
by giving the administrative officer every
opportunity to decide on a matter that comes
within his jurisdiction, then such remedy must
first be exhausted before the court‘s power of
judicial review can be sought. The party with an
administrative remedy must not only initiate the
prescribed administrative procedure to obtain
relief but also pursue it to its appropriate
conclusion before seeking judicial intervention in
order to give the administrative agency an
opportunity to decide the matter itself correctly
and prevent unnecessary and premature resort to
the court(Asia International Auctioneers, Inc. vs.
Parayno, Jr., G.R. No. 163445, December 18, 2007).
Exceptions:
1) when there is a violation of due process;
2) when the issue involved is purely a legal
question;
3) when the administrative action is patently
illegal amounting to lack or excess of
jurisdiction;
4) when there is estoppel on the part of the
administrative agency concerned;
5) when there is irreparable injury;
6) when the respondent is a department
secretary whose acts, as an alter ego of the
President, bears the implied and assumed
approval of the latter;
Bar Operations C ommissions 23
 Purple Notes
Remedial Law
7) when to require exhaustion of administrative
remedies would be unreasonable;
8) when it would amount to a nullification of a
claim;
9) when the subject matter is a private land in
land case proceedings;
10) when the rule does not provide a plain,
speedy and adequate remedy;
11) when there are circumstances indicating the
urgency of judicial intervention, and
unreasonable delay would greatly prejudice
the complainant;
12) when no administrative review is provided by
law;
13) where the rule of qualified political agency
applies; and
14) when the issue of non-exhaustion of
administrative remedies has been rendered
moot (GSIS vs. Velasco, G.R. No. 196564, August
07, 2017).
2.D.2e. Doctrine of Adherence of
Jurisdiction
The doctrine means that once jurisdiction has
attached, it cannot be ousted by subsequent
happenings or events, although of a character
which would have prevented jurisdiction from
attaching in the first instance(Baritua vs. Mercader,
G.R. No. 136048, January 23, 2001).
Exception: When the change in jurisdiction is
curative in character (Lucia BarramedaVda. De
Ballesteros vs. Rural Bank of Canaman, Inc.,G.R. No.
176260 November 24, 2010).
2.D.2f. Objections to jurisdiction over the
subject matter
The court may on its own initiative object to an
erroneous jurisdiction and may ex mero motu
take cognizance of lack of jurisdiction at any
point in the case and has a clearly recognized
right to determine its own jurisdiction in any
proceeding (Fabian vs. Desierto, G.R. No. 129742,
September 16, 1998). Under the Rules, when it
appears from the pleadings or evidence on record
that the court has no jurisdiction over the subject
matter, . . . the court shall dismiss the same‖
(Rule 9, Sec. 1)Lack of jurisdiction over the subject
matter is a ground for a motion to dismiss.
24 Center for Legal Education and Research
2.D.2g. Effect of estoppel on objections to
jurisdiction
1. While it is true that jurisdiction over the
subject matter may be raised at any stage of the
proceedings since it is conferred by law, it is
nevertheless settled that a party may be barred
from raising it on the ground of estoppel (La‘o vs.
Republic, G.R. No, 160719, January 23, 2006). The
fact pattern common among those cases wherein
the Court invoked estoppel to prevent a party
from questioning jurisdiction is a party‘s active
participation in all stages of a case, including
invoking the authority of the court in seeking
affirmative relief and questioning the court‘s
jurisdiction only after receiving a ruling or
decision adverse to his case for the purpose of
annulling everything done in the trial in which he
has actively participated. As clearly pointed out in
La‘o: ―A party who has invoked the jurisdiction of
the court over a particular matter to secure
affirmative relief cannot be permitted to
afterwards deny that same jurisdiction to escape
liability.‖
2. The doctrine of estoppel by laches in relation
to objections to jurisdiction first appeared in the
landmark case of Tijam vs. Sibonghanoy. Here,
the Supreme Court barred a belated objection to
jurisdiction that was raised only after an adverse
decision was rendered by the court against the
party raising the issue of jurisdiction and after
seeking affirmative relief from the court and after
participating in all stages of the proceedings. The
doctrine.
3. The Supreme Court frowns upon the
undesirable practice of submitting one‘s case for
decision, and then accepting the judgment only if
favorable, but attacking it for lack of jurisdiction if
it is not (Bank of the Philippine Islands vs. ALS
Management & Development Corporation, G.R. No.
151821, April 14, 2004). The rule also applies to
administrative proceedings. The active
participation of an individual before the
administrative proceedings and the belated
challenge to the jurisdiction of the said body bars
him from assailing such acts under the principle
of estoppel (Office of the Ombudsman vs. Delijero,
Jr., G.R. No. 172635, October 20, 2010).
4. The rule is that the active participation of the
party against whom the action was brought,
coupled with his failure to object to the

jurisdiction of the court or administrative body
where the action is pending, is tantamount to an
invocation of that jurisdiction and a willingness to
abide by the resolution of the case and will bar
said party from later on impugning the court or
body‘s jurisdiction (Megan Sugar Corporation vs. RTC
of Iloilo, Branch 68, G.R. No. 170352, June 1, 2011)
2.D.3. Jurisdiction Over the Issues
This is the power of the court to try and decide
issues raised in the pleadings of the parties
(Reyes vs. Diaz, G.R. No. 48754, November 26, 1941).
An issue is a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision (Black‘s Law
Dictionary, 5th ed.)
Where there is no disputed point, there is no
issue (Riano, Civil Procedure, Vol. I, p. 100, 2014 ed.).
Whether or not a court has jurisdiction over
aspecific issue is a question that requires nothing
but an examination of the pleadings (Reyes vs.
Diaz, G.R. No. 48754, November 26, 1941).
How Jurisdiction Over the Issue is
Conferred and Determined
1. Generally, jurisdiction over the issues is
conferred and determined by the allegations
in the pleadings of the parties (Riano, Civil
Procedure, Vol. I, p. 100, 2014 ed.).
2. It may also be determined and conferred by
stipulation of the parties (Rule 18, Sec. 2).
3. It may also be conferred by waiver or failure
to object to the presentation of evidence on a
matter not raised in the pleadings (De Joya vs.
Marquez, G.R. No. 162416, 31 January 2006).
Here, the parties try, with their express or
implied consent, issues not raised in the
pleadings. This issues tried shall then be
treated in all respects as if they had been
raised in the pleadings (Rule 10, Sec. 5).
2.D.4. Jurisdiction Over the Res or the
Property in Litigation
Res in Civil Law is a ―thing‖, an ―object‖. It
means everything that may form an object of
rights, in opposition to ―persona‖ which is the
Purple Notes
Remedial Law
subject of rights. It includes an object, subject
matter or status (Riano, Civil Procedure, Vol. I, pp.
103-104, 2014 ed.).
Jurisdiction over the res refers to the court‘s
jurisdiction over the thing or the property which
is the subject of the action. This type of
jurisdiction is necessary when the action is one in
rem or quasi in rem.
When an action is one in personam, jurisdiction
over the res is not sufficient and jurisdiction over
the person of the defendant is required (Riano,
Civil Procedure, Vol. I, p. 104, 2014 ed.).
Action in personam – directed against specific
persons and seek personal judgments.
Action in rem or quasi in rem– directed
against the thing or property or status of a
person and seek judgments with respect thereto
as against the whole world.
How Jurisdiction Over the Res is Acquired
(Riano, Civil Procedure, Vol. I, pp. 104-105, 2014 ed.)
1. By placing the property or thing under the
court‘s custody (custodia legis) or by
constructive seizure.
Example: Attachment of property
2. Through statutory authority conferring upon
the court the power to deal with the property
or thing within the court‘s territorial
jurisdiction.
Example: Suits involving the status of the
parties or the property in the Philippines of
non-resident defendants.
The court acquires jurisdiction over the res
even if it has not acquired jurisdiction over
the person of a non-resident defendant when
the action:
a) Involves personal status of the plaintiff;
b) Relates to a property within the
Philippines where the defendant has a
claim or interest;
c) Involves a property within the Philippines
and the defendant is sought to be
excluded;
Bar Operations C ommissions 25
 Purple Notes
Remedial Law
d) Property of the defendant is the subject ERROR OF ERROR OF JUDGMENT
of attachment; JURISDICTION
e) Land registration cases; or As to definition
f) Suits against foreign corporations not Error of Jurisdiction is Error of Judgment
doing business in the Philippines. one where the act presupposes that the
complained of was court is vested with
issued by the court jurisdiction over the
 Q. Can a jurisdiction over the res be acquired without or in excess of subject matter of the
in a land registration case? jurisdiction (Cabrera vs. action but, in the process
Lapid, G.R. No. 129098, of exercising that
A.A land registration case is a proceeding in December 6, 2006).It jurisdiction, it committed
rem, and jurisdiction over the res cannot be occurs when the court mistakes in the
acquired in this case UNLESS there is a exercises a jurisdiction appreciation of the facts
constructive seizure of the land through not conferred upon it by and the evidence leading
publication and service of notice (Republic vs. law. It may also occur to an erroneous judgment
when the court or (Riano, Civil Procedure,
Herbieto, G.R. No. 156117, May 26, 2005).
tribunal, although with Vol. I, p. 72, 2014 ed.).
jurisdiction, acts in Errors of judgment
 Q.How can the court acquire jurisdiction over excess of its jurisdiction include errors of
the res in a suit for annulment against a non- or with grave abuse of procedure or mistakes in
resident defendant? discretiona amounting to the court‘s findings
lack of jurisdiction (GSIS (Banco Filipino Savings
A. A suit for annulment against a non- vs.Oliza, G.R. No. and Mortgage Bank vs.
resident defendant may prosper when the 126874, March 10, CA, G.R. No. 132703,
Court acquires jurisdiction over the res 1999). June 23, 2000).
through summons by publication or anyof As to the validity of the judgment
the modes of extraterritorial service under A judgment tainted with An erroneous judgment is
an error of jurisdiction not a void judgment, and
Sec. [17] of Rule 14 (Romualdez-Licaros vs.
either because of a cannot therefore, be
Licaros, G.R. No. 150656, April 29, 2003).
toted absence of collaterally impeached.
jurisdiction to take Such a judgment is
Decision is limited to the value of the cognizance of an action binding on the parties
property if jurisdiction is not acquired over or because of a grave unless it is reversed or
the person of the defendant abuse of discretion, is a annulled in a direct
nullity. proceeding (Herrera vs.
 Q.What is the limitation of the court when it Barretto, G.R. No. 8692,
acquired jurisdiction over the res? September 10, 1913).
As to the manner by which the error may be
corrected
A. While the trial court aqcquired jurisdiction
Errors of jurisdiction are Errors of judgment are
over the res, its jurisdiction is limited to a
correctible only by the correctible by appeal
rendition of judgment on the res. It cannot extraordinary writ of (Cabrera vs. Lapid, G.R.
extend its jurisdiction beyond the res and certiorari (GSIS vs. No. 129098, December 6,
issue a judgment enforcing Oliza, G.R. No. 126874, 2006).
petitioner‘spersonal liability. In doing so March 10, 1999).
without first having acquired jurisdiction
over the person of petitioner, as it did, 2.F. DISTINGUISH: JURISDICTION AND
the trial court violated her constitutional right VENUE
to due process, warranting the annulment of
the judgment rendered in thecase(Biaco vs. JURISDICTION vs. VENUE
Philippine Countryside Rural Bank, G.R.
No.161417, February 8, 2007). Jurisdiction Venue
Authority to hear and Place where the case is
2.D.5. Jurisdiction over the remedies determine a case. to be heard or tried.
Matter of substantive Matter of procedural
2.E. Distinguish error of jurisdiction and law. law.
error of judgment Establishes a relation Establishes relation
between the court and between plaintiff and

26 Center for Legal Education and Research

 Purple Notes
Remedial Law
the subject matter. defendant, or petitioner  Q.What is the rationale of creating the
and respondent. KatarungangPambarangay law?
Fixed by law and cannot May be conferred by
be conferred by the the act or agreement of A. The primordial aim of the
parties. the parties.
KatarungangPambarangay Law is to reduce
Lack of jurisdiction over Improper venue is not
the number of court litigations and prevent
the subject matter is a a ground for a motu
ground for a motu proprio dismissal the deterioration of the quality of justice
proprio dismissal. except in cases subject which has been brought about by the
to Summary Procedure. indiscriminate filing of cases in the
Jurisdiction over the The objection to an courts(Zamora vs. Heirs of Izquierdo, G.R. No.
subject matter may be improper venue must 146195, November 18, 2004).
raised at any stage of be raised either in a
the proceedings since it motion to dismiss or in Venue of Barangay Conciliation
is conferred by law (La‘o the answer. Otherwise, Proceedings(R.A. No. 7160, Sec. 409)
vs. Republic, 479 SCRA it is deemed waived.
439, 446). Disputes Venue
Source: Riano, Civil Procedure, Vol. I, pp. 195-196, Between persons Barangay where the
2014 ed. actually residing in the persons reside.
same barangay.
 Q.What is the relation of venue to the Involving actual Barangay where the
jurisdiction? residents of different respondent or any of the
barangays within the respondents actually
A.Venue is intended to accord convenience to same city or resides, at the election of
the parties as it relates to the place of trial. It municipality. the complainant.
does not equate to the jurisdiction of Involving real property Barangay where the real
thecourt. Venue is an or any interest therein. property or the larger
essentialelementofjurisdiction only in criminal portion thereof is situated.
Arising at the Barangay where such
actions (Dolot vs. Paje, G.R. No. 199199, August
workplace where the workplace or institution is
27, 2013).
contending parties are located.
employed or at the
 Q. Is the venue procedural or substantive?
institution where such
parties are enrolled for
A. Venue is procedural and not substantive.In study.
civil cases, venue is not a matter of
jurisdiction (Heirs of Lopez vs. De Castro, G.R. Parties to Barangay Conciliation
No. 112905, February 3, 2000).
Proceedings
2.G. JURISDICTION OVER SMALL CLAIMS,
Only individuals shall be parties, either as
CASES COVERED BY THE RULES ON
complainants or respondents. No complaint by or
SUMMARY PROCEDURE AND BARANGAY
against corporations, partnerships or other
CONCILIATION
juridical entities shall be filed, received or acted
upon (A.M. Circular No. 14-93, effective July 15,
JURISDICTION OVER BARANGAY 1993).
CONCILIATION PROCEEDINGS
Cases NOT covered (Substantive
KatarungangPambarangayLaw(Presidential Exceptions)
Decree No. 1508)
1. One party is the government or any
subdivision or instrumentality;
It established a system of amicably settling
2. One party is a public officer or employee, and
disputes at the barangay level. It was expressly
the dispute relates to the performance of his
repealed by R.A. No. 7160 (Local Government Code
official functions;
of 1991). Most of its provisions, however, were
3. Offenses punishable by imprisonment
incorporated (with some modifications) under
exceeding 1 year or fine exceeding Php.
Book III, Title I, Chapter VII of R.A. No. 7160.
5,000;

Bar Operations C ommissions 27

 Purple Notes
Remedial Law
4. Offenses with no private offended party;
5. Dispute involves real properties located in
different cities or municipalities UNLESS the
parties agree to submit dispute to amicable
settlement by an appropriate lupon;
6. Disputes involving parties who reside in
barangays of different cities or municipalities
EXCEPT when such barangay units adjoin
each other and parties thereto agree to
submit their differences to amicable
settlement by an appropriate lupon;
7. Classes of dispute which the President may
determine in the interest of justice; or,
8. One of the parties is a juridical entity.
Note: The prescriptive period for offenses and
cause of action shall be interrupted upon filing of
complaint with the punong barangay, but this
must not exceed 60 days(Uy vs. Contreras, G.R. No.
111416, September 26, 1994).
Other Cases (Procedural Exceptions)
1. Accused is under police custody;
2. Person has been deprived of personal liberty
thus calling for a habeas corpus proceeding;
3. Actions coupled with provisional remedies;
4. Action barred by prescription;
5. Labor disputes;
6. As determined by the President in the
interest of justice;
7. CARL disputes;
8. Those involving the traditions of indigenous
cultural community(Riano, Civpro vol. 1 Bar
Lecture Series, 2016 ed., p.664).
 Q. Can there be a compulsary conciliation in
cases wherein other the petitioner and
defendants reside in barangays of different
cities and municipilaties?
A.The fact that the petitioner and private
respondent reside in the same municipality
does not justify compulsory conciliation
where the other co-defendants reside in
barangays of different cities and
municipalities (Candido vs. Macapagal, G.R. No.
101328, April 07, 1993).
JURISDICTION OVER SMALLCLAIMS:
Jurisdictional Amount
28 Center for Legal Education and Research
Effective 1 April 2019, the SC increased the
amount covered by Small Claims cases to:
 Php. 400,000 within Metro Manila; and,
 Php. 300,000 outside Metro Manila (OCA
Circular No. 45-2019, effective April 1, 2019).
Actions Covered
a) purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money; and,
b) the civil aspect of criminal actions, either filed
before the institution of the criminal action, or
reserved upon the filing of the criminal action in
court, pursuant to Rule 111 (Sec. 4, A.M. No. 08-8-
7-SC).
These claims may be:
 For money owed under the contracts of lease,
loan, services, sale, or mortgage;
 For damages arising from fault or negligence,
quasi-contract, or contract; or,
 The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim pursuant to Sec. 417 of the Local
Government Code (Sec. 4, A.M. No. 08-8-7-SC).
JURISDICTON OVER CASES COVERED BY
SUMMARY PROCEDURE
Scope (Rule on Summary Procedure, Sec. 1)
The Rule on Summary Procedure shall govern the
procedure in the Metropolitan Trial Courts
(MeTC), the Municipal Trial Courts in Cities
(MTCC), the Municipal Trial Courts (MTC) and the
Municipal Circuit Trial Courts (MCTC).
SUMMARY PROCEDURE IN CIVIL CASES
1. All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaidrentalssought to be
recovered;
2. All other cases where the total amount of the
plaintiff‘s claim, exclusive of interests and
costs:

 DOES NOT EXCEED Php. 300,000 outside
Metro Manila; or,
 DOES NOT EXCEED Php. 400,000 (in
Metro Manila
Exception: Probate Proceedings (Revised
Rules on Summary Procedure, as amended by
A.M. No. 02-11-09-SC, effective November 25,
2002).
The Rules on Summary Procedure does NOT
apply to a civil case where the plaintiff‘s cause of
action is pleaded in the same complaint with
another cause of action subject to the ordinary
procedure; nor to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure
(Revised Rules on Summary Procedure, Sec. 1).
SUMMARY PROCEDURE INCRIMINAL
CASES
1. Violations of traffic law, rules and regulations;
2. Violation of the Rental Law;
3. All other criminal cases where the penalty
prescribed is imprisonment not exceeding six
(6) months, or fine not exceeding Php. 1,000,
or both, irrespective of other imposable
penalties, accessory or otherwise, or of the
civil liability arising therefrom;
Note: In offenses involving damage to
property through criminal negligence, Rules
on Summary Procedure shall govern where
the imposable fine does NOT exceed P10,000.
Totality Rule
Under this rule, where there are several claims or
causes of actions between the same or different
parties, embodied in the same complaint, the
amount of the demand shall be the totality of
clams in all the causes of action, irrespective of
whether the causes of action arouse out of the
same or different transactions (Sec. 33[1], BP Blg.
129 as amended by RA No. 7691; Pantranco North
Express, Inc. vs. Standard Insurance Company, Inc.
G.R. No. 140746, March 16, 2005).
2.H. HOW JURISDICTION IS DETERMINED
General rule: Jurisdiction of the court is
determined by the statute in force at the time of
Purple Notes
Remedial Law
the commencement of the action(Narra Nickel
Mining & Corp., G.R. No. 195580, April 21, 2014).
Exception: When the statute provides for its
retroactive application and its curative
nature(Atlas Fertilizer Corp. vs. Navarro, G.R. No.
72074, April 30, 1987).
3. CIVIL PROCEDURE
3.A. GENERAL PROVISIONS
The rules embodied in the Rules of Court are not
laws in the strict sense of the word since they did
not emanate from the legislature. However, since
they were promulgated under authority of the
law, such rules have the force and effect of laws.
General Rule: The Rules shall apply in all
courts.
Exception: When otherwise provided by the
Supreme Court (Rule 1, Sec.2).
3.B.ACTIONS
An action is the legal and formal demand of one‘s
right from another person made and insisted
upon in a court of justice (Bouvier‘s Law Dictionary,
Vol. I, 128, 8th Ed.; Words and Phrases, Vol. 2, 25).
In this jurisdiction, it is settled that the terms
―action‖ and ―suit‖ are synonymous but the
operative act which converts a claim into an
―action‖ or ―suit‖ is the filing of the same with a
―court of justice.‖ Filed elsewhere, as with some
other body or office not a court of justice, the
claim may not properly be categorized under
either term (Lopez vs. Compania de Seguros, G.R.
No. L-19613, April 30, 1966).
CASES GOVERNED:
3.B.1. Meaning of Ordinary Civil Actions
Ordinary Civil Action is one by which a party
sues another for the enforcement or protection of
a right, or the prevention or redress of a wrong
(Rule 1, Sec. 3[a]).It is governed by ordinary rules.
3.B.2. Meaning of Special Civil Action
Special Civil Action is one by which a party
sues another for the enforcement or protection of
Bar Operations C ommissions 29
 Purple Notes
Remedial Law
a right, or the prevention or redress of a  by Petition.
wrongwherein it has special features not found in
ordinary civil acions. It is governed by ordinary 3.B.5. Personal Actions and Real Actions
rules but subject to specific rules prescribed
under Rules 62 to 71 (Riano, Civil Procedure, 2016 Actions Based on Subject Matter:
ed., p. 191). Personal and Real Actions(Riano, Civil
Procedure Vol. 1, 2016 ed., p. 194)
3.B.3. Meaning of Criminal Action
REAL PERSONAL
Criminal Action is one by which the state AS TO SCOPE
prosecutes a person for an act or omission  Actions  One which is not
punishable by law (Rule 1, Sec. 3[b]). affecting title to founded upon the
or possession of privity of real rights
3.B.4. Distinguish: Civil Actions and Special real property, or or real property.
Proceedings an interest
therein (Rule 4,
Special Proceedings is a remedy by which a Sec. 1).
party seeks to establish a status, a right, or a AS TO VENUE
particular fact(Rule 1, Sec. 3[c])  Where the  Where the plaintiff
property is or any of the
Special Proceedings under the Rules of located, or the principal plaintiffs
Court: portion thereof resides;
is situated, it is  Where the defendant
a) Settlement of estate of deceased persons; ―local.‖ or any of the
b) Escheat; principal defendants
c) Guardianship and custody of children; resides;
d) Trustees;  In the case of non-
e) Adoption; resident defendant,
f) Rescission and revocation of adoption; where he may be
g) Hospitalization of insane persons; found, at the
h) Habeas corpus; election of the
i) Change of name; plaintiff, it is
j) Voluntary dissolution of corporations; ―transitory.‖
k) Judicial approval of voluntary recognition of AS TO BASIS
minor natural children;  When it is  When it is founded
l) Constitution of family home; founded upon on privity of contract
m) Declaration of absence and death; and the privity of a such as action for
n) Cancellation or correction of entries in the civil real estate, damages to real
registry (Rule 72,Sec. 1). meaning, the property.
realty, or an
Civil Action vs. Special Proceedings interest therein,
is the subject
SPECIAL matter of the
CIVIL ACTION
PROCEEDINGS action.
AS TO PURPOSE
 To protect a  To establish a status;
3.B.6. Local and Transitory Actions
right;  To establish a right;
 To prevent or  To establish a
redress a particular fact. Actions Based on Permissible Venue:
wrong. Local and Transitory Actions
AS TO COMMENCEMENT
 by Complaint;  by Application; LOCAL TRANSITORY
 by Petition.  by Motion; Action is brought in Action is brought,

30 Center for Legal Education and Research

 Purple Notes
Remedial Law
LOCAL TRANSITORY AS TO REQUIRED JURISDICTION
a particular place. In generally, where the Jurisdiction Jurisdiction Jurisdiction
the absence of an party resides, over the over the over the
agreement to the regardless of where person of the person of the person of the
contrary, where the the cause of action defendant is defendant is defendant is
subject property is arose(The Manila not required, required. not required
located(The Manila Railroad Co. vs. the court, as long as
Railroad Co. vs. Attorney- General, however, jurisdiction
Attorney- General, G.R. No. 6287, must have over the res is
G.R. No. 6287, December 1, 1911). jurisdiction acquired
December 1, 1911). over the res.
AS TO PURPOSE
3.B.7. Actions in rem, in personam and Concerns the Seeks to Seeks to
quasi in rem status of a enforce subject the
person personal property of a
Actions Based on the Binding Effect of the rights and person to the
Relief Sought (Object of the Action): obligations discharge of
Actions in Rem, in Personam and Quasi in and to the claim
Rem(Riano, Civpro vol. 1 Bar Lecture Series, 2016 impose, assailed
ed., p. 201-205) through the
judgment of
IN QUASI IN a court, some
IN REM responsibility
PERSONAM REM
AS TO NATURE or liability
directly upon
Action Action One that
the person of
directed to a directed names a
the
res, seeking against a specific
defendant.
to bind any specific defendant and
person who defendant the purpose of
Note: The above distinction is significant in
may have a seeking to the action is
determining whether or not jurisdiction over
claim or make him to subject his
the person of the defendant is required.
interest in the personally interest in a
res and/or liable to pay property to a
personal certain sum corresponding
 Q. How to determine if the proceeding is in
status. of money, or lien or
rem, in personam or quasi in rem?
to deliver a obligation
thing or to burdening the
A. Whether a proceeding is in rem, in
perform or res.
personam, or quasi in rem is determined by
not to
its nature and purpose, and by these only
perform a
(Domagas vs. Jensen, G.R. No. 158407, January
specific act. 17, 2005).
AS TO SCOPE
Directed Directed Directed  Q. What is a proceeding in personam?
against the against a against
thing itself. particular particular A. A proceeding in personam is a proceeding
persons. persons. to enforce personal rights and obligations
AS TO EFFECT OF JUDGMENT brought against the person and is based on
Binding upon Binding only Binding upon the jurisdiction of the person, although it
the whole between & the whole may involve his right to, or the exercise of
world. among the world ownership of, specific property, or seek to
parties to the compel him to control or dispose of it in
case.

Bar Operations C ommissions 31

 Purple Notes
Remedial Law
accordance with the mandate of the
court(Domagas vs. Jensen, supra).
Examples of Actions Quasi in Rem
a) attachment;
b) foreclosure of mortgage;
c) action for partition; and
d) action for accounting
 Q. Differentiatethe binding effect of quasiin
rem and in rem actions as to third person.
A.Actionsinremare actions against the thing
itself. They are binding upon the whole
world.Quasiinremactions are actions involving
the status of a property over which a party
has interest.Quasiin rem actions are not
binding upon the whole world. They affect
only the interests of the particular parties (De
Pedro vs. Romasan Development Corporation,
G.R. No. 194751, November 26, 2014).
 Q. What kind of action is an action for
unlawful detainer or forcible entry?
A. By its very nature and purpose, an action
for unlawful detainer or forcible entry is a
real action and in personambecause the
plaintiff seeks to enforce a personal
obligation or liability on the defendant under
Article 539 of the New Civil Code, for the
latter to vacate the property subject of the
action, restore physical possession thereof to
the plaintiff, and pay actual damages by way
of reasonable compensation for his use or
occupation of the property (Domagas vs.
Jensen, supra).
 Q. What is the importance in determining if
the action is in rem, in personam and quasi
in rem?
A. To determine if jurisdiction over the
person of the defendant is required and the
type of summons to be employed (Gomez vs.
CA, 425 SCRA 98, 103, March 10, 2004).
Commencement of Action (Rule 1, Sec. 5)
A civil action is commenced by:
1. Filing of the original complaint in court;
and,
32 Center for Legal Education and Research
2. Timely payment of the correct docket fees.
 Q. Is the payment of docket fee necessary?
A. Payment of the full amount of the docket
fee is mandatory and jurisdictional (Ayala
Land, Inc. vs Carpo, G.R. No. 166577, February 3,
2010).
General Rule: The court cannot acquire
jurisdiction over the subject matter of a case,
unless the docket fees are paid (Mercado vs. CA,
G.R. No. 150241. November 04, 2004).
Exception: Liberal application of the rule on
docket fees.
1. The court may allow payment of the fee
within a reasonable period of time but in no
case beyond the applicable prescriptive or
reglementary period; and,
2. The party does not deliberately intend to
defraud the court in payment of docket fees,
and manifests its willingness to abide by the
rules by paying additional docket fees when
required by the court(Reyes vs. People, G.R.
No. 193034, July 20, 2015).
 Q. In what instance does the court may allow
a party to pay the required docket fee if such
party failed to do so at the time of the filing
of the initiatory pleading?
A. Where the initiatory pleading is NOT
accompanied by the payment of the docket
fee, the court may allow payment of the fee
within a reasonable period of time but in no
case beyond the applicable prescriptive or
reglementary period. This ruling is made on
the premise that the plaintiff had
demonstrated his willingness to abide the
rules by paying the additional docket fees
required. Thus, in a more recent case of
United Overseas Bank vs. Ros, the Court
explained that where the party does not
deliberately intend to defraud the court in
payment of docket fees, and manifests its
willingness to abide by the rules by paying
additional docket fees when required by the
court, the liberal doctrine and not the strict
regulations will apply (Reyes vs. People, G.R.
No. 193034, July 20, 2015).

Instances when the docket fees need not
be paid at the commencement of the suit
but may be considered as a lien on the
judgment award:
1. A new rule has been added, governing the
awards of claims not specified in the pleading
– i.e., damages arising after the filing of the
complaint or similar pleading – as to which
the additional filing fee therefore shall
constitute a lien on the judgment(Philippine
First Insurance Company, Inc. vs. Pyramid Logistics
and Trucking Corporation, G.R. No. 165147, July 9,
2008);
2. In the case of an indigent litigant;
3. If the plaintiff fails to pay the correct docket
fees within reasonable time before the
expiration of the applicable prescriptive or
reglementary period, the defendant should
timely raise the issue of jurisdiction or else he
would be considered in estoppel(Metropolitan
Bank and Trust Company vs. Perez, G.R. No.
181842, February 5, 2010).
4. When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages
without specifying the amount thereof in the
complaint or information, the filing fees
thereof shall constitute a first lien on the
judgment awarding such damages (Rule 111,
Sec. 1).
 Q. When does the court acquire jurisdiction
over the case if the filing fees were not
simultaneously paid at the time of its filing?
A. If the fees are not paid at the time of the
filing, the court acquires jurisdiction only
upon full payment of the fees within a
reasonable time as the court may grant,
barring prescription (Ballatan vs. CA, G.R. No.
125683, March 2, 1999).
General Rule: The basis of assessment of the
docket fee should be the amount of damages
sought in the original complaint and not in the
amended complaint (Manchester Development
Corporation vs. Court of Appeals, G.R. No. 75919, May
7, 1987).
In what cases not applicable:
General Rule: These rules shall not apply to:
(NICOLE)
Purple Notes
Remedial Law
1. Naturalization;
2. Insolvency proceedings;
3. Cadastral;
4. Other cases not provided for in the Rules;
5. Land registration; and
6. Election cases.
Exception: The Rules of Court apply to these
cases only by analogy or in a suppletory
character and whenever practicable and
convenient(Rule 1, Sec. 4).
3.C. CAUSE OF ACTION (Rule 2, Sec. 2)
3.C.1. Meaning of Cause of Action
A cause of action is the act or omission by
which a party violates the rights of another.
 Q. What is the importance of a cause of
action?
A. Having a cause of action would be vital if
one where to seek the aid of the courts.
Without a cause of action, one cannot, as a
rule, seek judicial relief for a violation of
one‘s rights. This is because of Section 1,
Rule 2 of the Rules of Court requires that
every ordinary civil action must be based on
a cause of action (Turner vs. Lorenzo Shippine
Corporation, G.R. No. 157479, November 24,
2010; Anchor Savings Bank vs. Furigay, G.R. No.
191178, March 13, 2013).
 Q. What are the elements of a cause of
action?
A. As applied to ordinary civil actions, the
following are the elements of a cause of
action:(ROA)
1. A legal Right in favor of the plaintiff;
2. A correlative legal Obligation of the
defendant to respect such right; and
3. An Act or omission by such defendant in
violation of the right of the plaintiff with
a resulting injury or damage to the
plaintiff for which the latter may maintain
an action for the recovery of relief from
the defendant (Metropolitan Bank and Trust
Company vs. Ley Construction and
Bar Operations C ommissions 33
 Purple Notes
Remedial Law
Development Corporation, G.R. No. 185590, Failure to State a Cause of Action
December 3, 2014).
It is a defect or an insufficiency in the statement
3.C.2. Distinguish: Right of Action and of the cause of action or the allegations in the
Cause of Action pleading, i.e., not all the elements of a particular
cause of action are alleged(Zuñiga-Santos vs.
Right of Action Santos-Gran, G.R. No. 197380, October 8, 2014).

It is the remedial right or right to relief granted Failure to State a Cause of Action vs. Lack
by law to a party to institute an action against a of Cause of Action [Regalado, Remedial Law
person who has committed a delict or wrong Compendium, Volume I, 9th Revised Ed. (2005)]
against him(Multi-Realty Dev‘t Corp vs. The Makati
Tuscany Condominium Corp., G.R. No. 146726, June FAILURE TO STATE A LACK OF CAUSE OF
16, 2006). CAUSE OF ACTION ACTION
Refers to the Refers to a situation
Elements of Right of Action: insufficiency of the where the evidence
pleading. does not prove the
cause of action alleged
1. Existence of a cause of action or compliance
in the pleading.
with all conditions precedent to the bringing
Provided in Sec. 12 of Provided in Sec. 5 of
of the action; and, Rule 8. Rule 10.
2. Right to bring and maintain the action must Remedy is to allege in Remedy is to file a
be in the person instituting it(Turner vs. the Answer as an demurrer to the
Lorenzo Shipping, G.R. No. 157479, November 24, affirmative defense evidence.
2010). Failure to raise May be raised at any
theaffirmative defenses time after the questions
Cause of Action vs. Right of Action at theearliest of fact have been
opportunity resolved on the basis of
CAUSE OF ACTION RIGHT OF ACTION shallconstitute a waiver the stipulations,
thereof admissions, or evidence
Delict or wrongful act Right to relief granted
presented.
or omission committed by law to a party to
by the defendant in institute an action
violation of the primary against a person who 3.C.4. Test of the sufficiency of a Cause of
rights of the plaintiff. has committed a delict Action
or wrong against him.
The reason for the The remedy afforded to  Q. What is the test to determine if the
action. the aggrieved party. complaint states sufficient cause of action?

A.1. In determining whether an initiatory

The formal statement Right to litigate is given pleading states a cause of action, ―the test is
of alleged facts. because of the as follows: Admitting the truth of the facts
occurrence of the alleged, can the court render a valid
alleged facts. judgment in accordance with the prayer?‖ To
Determined by facts Determined by be taken into account are only the material
alleged in the substantive law(De allegations in the complaint; extraneous facts
complaint. Guzman vs. CA, G.R. and circumstances or other matters aliunde
Nos. 92029-30,
are not considered (Zepada vs. China Banking
December 20, 1990).
Corporation, G.R. No. 172175, October 09, 2006).
Matter of procedure. Matter of right.
Not affected by Affected by affirmative
affirmative defense. defense. A.2. In determining whether or not a cause
of action is sufficiently stated in the
3.C.3. Distinguish: Failure to State a Cause complaint, the statements in the complaint
of Action and Lack of Cause of are to be considered. It is error for the court
Action to take cognizance of external facts or to
hold preliminary hearings to determine the

34 Center for Legal Education and Research


existence (Diaz vs. Diaz, G.R. No. 135885, April
28, 2000).
A.3. The sufficiency of the statement of the
cause of action must appear on the face of
the complaint and its existence may be
determined only by the allegations in the
complaint, consideration of other facts being
proscribed and any attempt to prove
extraneous circumstances not being allowed
(Viewmaster Construction Corporation vs. Roxas,
G.R. No. 133576, July 13, 2000).
3.C.5. Splitting a single cause of action and
its effects
Splitting a Single Cause of Action
Is the act of instituting two or more suits on the
basis of the same cause of action (Rule 2, Sec. 4).
 Q. How splitting a cause of action is made?
A. In splitting a cause of action, the pleader
divides a single cause of action, claim or
demand into two or more parts and brings a
suit for each part. This cannot be done
because splitting a single cause of action is
expressly prohibited by the Rules of Court
which specially mandates that, ―A party may
not institute more than one suit for a single
cause of action‖ (Rule 2, Sec. 3; Riviera Golf
Club, Inc. vs. CCA Holdings, B.V., G.R. No. 173783,
June 17, 2015).
 Q. Why splitting a cause of action prohibited?
A. Splitting of a single cause of action
violates the policy against multicity of suits,
whose primary objective is to avoid
burdening the dockets of the court (Dynamic
Builders & Construction Co., Inc. vs. Presbitero, Jr.,
G.R. No. 174202, April 7, 2015).
Effect of Splitting a Single Cause of Action
The filing of one suit or a judgment upon the
merits on any one suit is a ground for the
dismissal of the others(Rule 2, Sec. 4).
Remedies Available Against Splitting a
Single Cause of Action:
1. File a motion to dismiss
Purple Notes
Remedial Law
a) If the first complaint is still pending, said
motion shall be on the ground of LITIS
PENDENTIA [Rule 15, Sec. 12 (a)(2)]; or
b) If any of the complaints is terminated by
final judgment, the motion to dismiss shall
be on the ground of RES JUDICATA [Rule
15, Sec. 12(a)(3)].
2. File an answer, alleging either of the above-
cited grounds as affirmative defense.
One Suit for a Single Cause of Action(Rule 2,
Sec. 3)
This rule applies even when several rights,
belonging to one person, are violated.
All such rights violated, belonging to the same
person, should be alleged in a single complaint.
Otherwise, they are barred forever.
Tests to ascertain whether two suits relate
to a single or common cause of action:
1. Whether the same evidence would support
and sustain both the first and second causes
of action (also known as the ―same evidence‖
test);
2. Whether the defenses in one case may be
used to substantiate the complaint in the
other; and
3. Whether the cause of action in the second
case existed at the time of the filing of the
first complaint (Umale vs. Canoga Park
Development Corporation, G.R. No. 167246, July
20, 2011).
Rules in Case of Divisible Contracts
General Rule: A judgment for any single breach
of a continuing contract is NOT a bar to a suit for
a subsequent breach.
The filing of a complaint under divisible contract
covers all the previous ones in one cause of
action.
Exception:
Doctrine of Anticipatory Breach– even if the
contract is divisible in its performance and the
future periodic deliveries are not yet due, if the
obligor has already manifested his refusal to
Bar Operations C ommissions 35
 Purple Notes
Remedial Law
comply with his future periodic obligations, "the
contract is entire and the breach total." Hence,
there can only be one action for damages.
(DANFOSS, Inc. vs. Continental Cement Corporation,
G.R. No. 143788, September 9, 2005).
3.C.6. Joinder and Misjoinder of Causes of
Action
Joinder of Causes of Action (Rule 2, Sec. 5)
A party may, in one pleading assert, in the
alternative or otherwise, as many causes of
action as he may have against an opposing party
Conditions for Joinder of Causes of Action:
1. The party joining the causes of action must
comply with the rules on Joinder of Parties,
such that:
a. The right of relief arises out of the same
transaction or series of transactions;
b. There is a question of law or fact common
to all such plaintiffs or defendants;
c. Such joinder is not otherwise proscribed by
the provisions of the Rules on jurisdiction
and venue (Regalado, F.D., Remedial Law
Compendium, Volume 1, p. 91);
2. The joinder shall NOT include special civil
actions or actions governed by special rules;
3. Where the causes of action are between the
same parties but pertain to different venues
or jurisdiction, the joinder may be allowed in
the RTC provided one of the causes of action
fall within the jurisdiction of said court and the
venue lies therein; and
4. Totality Rule - Where the claims in the
causes of action are principally for the
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction(Rule 2,
Sec. 5). This is irrespective of which causes of
action arose out of the same or different
transaction.
When Totality Rule Applies
1. In actions where the jurisdiction of the court
is dependent on the amount involved.
36 Center for Legal Education and Research
Note: The test of jurisdiction shall be the
aggregate sum of all the money demands,
exclusive of interest and costs, irrespective of
whether or not the separate claims are owned by
or due to different parties. If any demand is for
damages in a civil action, the amount thereof
must be alleged.
2. In cases where there are two or more
plaintiffs having separate causes of action
against two or more defendants joined in a
complaint.
3. In cases where a plaintiff has separate
causes of action against two or more
defendants joined in a complaint.
Note: For the Totality Rule to apply in cases
provided for under (2) and (3), it is necessary
that:
1. The causes of action arose out of the same
transactions or series of transactions; and,
2. There is a common question of law or fact.
 Q. In what instance wherein Joinder of
Ordinary Civil Action and Special Action is
Allowed?
A. To begin with, petitioner could have joined
together all his allegations of error in one
petition for review under Rule 45 of the 1997
Rules of Civil Procedure since only questions
of law are raised in the instant case. At any
rate, there is nothing irregular in joining both
petitions for review (Rule 45) and
certiorari(Rule 65) in one pleading for
purposes of resolving the issues raised by
petitioner G & S. This procedural step may
even avoid inconsistency of rulings which
might result in case the writ of preliminary
injunction is validated but the civil case from
which the writ emanated is ordered
dismissed. Although a petition for review
under Rule 45 is an appeal process while a
petition for certiorari under Rule 65 is an
original action and the rule is that joinder of
causes of action shall not include special civil
actions governed by special rules, the
conceptual and procedural differences
between them are overshadowed by the
more significant probability of divergent
rulings in case the two (2) petitions are not
 Purple Notes
Remedial Law
joined which in the end would only cause 3. He must be a real party-in-interest(Herrera,
difficulties in determining which of the Vol. I, p. 504, 2007 ed.).
conflicting decisions should be enforced (G &
S Transport Corporation vs. Court of Appeals, G.R. Real Party-in-Interest is one who stands to be
No. 120287, May 28, 2002). benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit.
SPLITTING OF CAUSE JOINDER OF
OF ACTION CAUSE OF ACTION General Rule: Every action must be
There is a single cause of Contemplates prosecuted or defended in the name of the
action. several causes of
real party-in-interest.
action.
PROHIBITED, as it ENCOURAGED, as it
causes multiplicity of minimizesmultiplicity Exception: When otherwise authorized by
suits and double vexation of suits and law or the rules(Philippine Numismatic vs. Aquino
on the part of the inconvenience to the et al., G.R. No. 206617, January 30, 2017; Rule 3,
defendant. parties. Sec. 2).

Misjoinder of Causes of Action is NOT a
ground for dismissal of an action. A misjoined
cause of action may, on motion of a party or on
the initiative of the court, be severed and
proceeded with separately(Rule 2, Sec. 6).
Remedy
The court may drop the causes of action not
within its jurisdiction and retain the ones it can
handle, either motu proprio or upon motion of
the parties.
There is no sanction against non-joinder of
separate causes of action since a plaintiff only
needs a single cause of action to maintain an
action(Rule 2, Sec. 3).
Remedy if the suit is not in the name of or
against the real party-in-interest:
Allege in the Answer as an affirmative defense
that the complaint states no cause of action.
Remedy if one party in the suit is not a real
party in interest:
1. Upon motion of a party, the court may drop
or add a party by order; or,
2. Upon its own initiative, the court may drop
the name of a misjoined party.
Note: This may be done at any stage of the
proceeding(Riano, Civpro vol. 1 Bar Lecture
Series, 2016 ed., p 230).

3.D. PARTIES TO CIVIL ACTIONS  Q. Who is a real party in interest?

There are two main categories of parties to a civil A. ―Interest‖ within the meaning of the
action namely, the plaintiff and the defendant Rules of Court means material interest or an
(Rule 3, Sec. 1). interest in issue to be affected by the decree
or judgment of the case, as distinguished
3.D.1. Real Parties in Interest; from mere curiosity about the question
Indispensable Parties; Representatives as involved. A real party in interest is the party
Parties; Necessary Parties; Alternative who, by the substantive law, has the right
Defendants sought to be enforced (Ang vs. Sps Ang, G.R.
No. 186993, August 22, 2012).
Requirements for a person to be a party to
a civil action: Classification of Parties-in-Interest

1. He must be a: 1) Indispensable Parties

a. Natural person;
b. Juridical person; or An indispensable party is a party in interest
c. Entity authorized by law; without whom no final determination can be had
2. He must have legal capacity to sue; and of an action, and who shall be joined either as
plaintiffs or defendants.

Bar Operations C ommissions 37

 Purple Notes
Remedial Law
 Q. What is the effect of failure to implead an motion (Navarro vs. Escobido, G.R. No. 153788,
indispensable party in a suit? November 27, 2009).

A.1. The joinder of indispensable parties is  Q. How to determine if a party is not an

mandatory. Thus, without the presence of
indispensable parties to a suit or proceeding,
judgment of a court cannot attain real
finality. The absence of an indispensable
party renders all subsequent actions of the
court null and void for want of authority to
act, not only as to the absent parties but
even as to those present (Lotte Phil. Co., Inc.
vs. Dela Cruz etl.al., G.R. No. 166302. July 28,
2005).
indispensable party?
A. A party is not indispensable to the suit if
his interest in the controversy or subject
matter is distinct and divisible from the
interest of the other parties and will not
necessarily be prejudiced by a judgment
which does complete justice to the parties in
court (China Bank vs. Oliver, G.R. No. 135796,
October 3, 2002).

A.2. The joinder of indispensable parties is Co-Owners as Indispensable Parties

not a mere technicality. We have ruled that
General Rule: Co-owners are indispensable
the joinder of indispensable parties is
parties (Divinagracia vs. Parilla et al., G.R. No.
mandatory and the responsibility of
196750, March 11, 2015, citing Sec. 1 of Rule 69).
impleading all the indispensable parties rests
on the plaintiff. In Domingo vs. Scheer, we
Qualification: Co-owners are only indispensable
ruled that without the presence of
parties-defendants; they are NOT indispensable
indispensable parties to the suit, the
parties-plaintiffs(Marmo vs. Dacanay, GR No. 182585
judgment of the court cannot attain real
November 27, 2009).
finality. Otherwise stated, the absence of an
indispensable party renders all subsequent
Under this qualification, a co-owner may bring an
actions of the court null and void for want of
action without joining all the other co-owners as
authority to act not only as to the absent
co-plaintiffs (Catedrilla vs. Lauron, G.R. No. 179011,
party but even as to those present (Tumagan
April 15, 2013). However, if an action is filed
vs. Kairuz, G.R. No. 198124, September 12, 2018).
against the co-owners, ALL of them must be
joined as defendants.
 Q. Is failure to implead indispensable party in
a suit an incurable error?
Exception: When there is a contract which
makes the co-owners solidarily liable. In this
A. The Court clarified that the failure to
case, ONLY ONE of the co-owners is an
implead indispensable parties is a curable
indispensable party-defendant.
error (Pacaña-Contreras vs. Rovila Water Supply,
G.R. No. 168979, December 2, 2013).
 Q. In a contract of loan with a stipulation
that the debtors will be solidary liable to the
 Q. What will be the recourse of the court in
creditor, may the creditor initiate a suit
case there is a failure to include an
against any of the debtor?
indispensable party in a suit?
 A.Article 1216 of the Civil Code states that
A. The court, either motu proprio or upon the the creditor may proceed against anyone of
motion of a party, may order the inclusion of the solidary debtors or some or all of them
the indispensable party or give the plaintiff simultaneously (De Castro vs. CA, G.R. No.
opportunity to amend his complaint in order 115838. July 18, 2002).
to include indispensable parties. If the
plaintiff to whom the order to include the 2)Necessary Parties
indispensable party is directed refuses to
comply with the order of the court, the Necessary Parties are those who are not
complaint may be dismissed upon motion of indispensable but ought to be parties if complete
the defendant or upon the court's own relief is to be accorded to those already parties,

38 Center for Legal Education and Research

 Purple Notes
Remedial Law
or for a complete determination or settlement of A person need not be judicially declared
the claim subject of the action (Rule 3, Sec. 8). incompetent in order that the court may appoint
a guardian ad litem. It is enough that he be
 Q. Why are indispensable and necessary alleged to be incompetent.
parties considered as real parties in interest
in a suit? In case of supervening incapacity or
incompetency of a party, the action shall
A. Both indispensable and necessary parties continue to be prosecuted by or against that
are considered as real parties in interest, party personally and NOT through his
since both classes of parties stand to be representative, since he continues to be the real
benefited or injured by the judgment of the party in interest although assisted by his
suit (Pacaña-Contreras vs. Rovila Water Supply, guardian.
G.R. No. 168979, December 2, 2013).
General Rule: An agent may sue or be sued
without joining the principal if he acted:
INDISPENSABLE NECESSARY
PARTIES(Rule 3, Sec. PARTIES(Rule 3, Sec. 8
7) and 9) a) In his own name, and,
The action cannot The action can proceed b) For the benefit of an undisclosed principal.
proceed unless they even in the absence of
are joined. Their some necessary parties. Exception: When the contract involves things
presence issine qua belonging to the principal (Rule 3,Sec. 3).
non for the exercise of
judicial power. 4) Pro forma Party
No valid judgment if Case may be determined
indispensable party is in court even if a
One that is required to be joined as a co-party in
not joined. necessary party is not
joined but the judgment
a suit by or against another party, as may be
therein will not resolve provided by the applicable substantive law or
the entire controversy. procedural rule (Rule 3,Sec. 4).
They are those with They are those whose
such an interest in the interests are so far A nominal or pro forma party is one who is joined
controversy that a final separable that a final as a plaintiff or defendant, not because such
decree would decree can be made in party has any real interest in the subject matter
necessarily affect their their absence without or because any relief is demanded, but because
rights. affecting them.
the technical rules of pleadings require the
presence of such party on the record.
3) Representative Party
General Rule: Spouses should sue and be sued
Representative party is someone acting in a together as they are both administrators of their
fiduciary capacity for, or in behalf of, the principal community property or conjugal partnership
or beneficiary(Rule 3, Sec. 3). property(Villarama vs. Guno, GR No. 197514, August
6, 2018).
Who May Be Made a Representative?
Exception: Those provided by law:
 Trustee of an express trust;
 Guardian; 1. Petition for receivership;
 Executor or Administrator; or 2. Petition for judicial separation of property;
 Any party authorized by law or by the Rules 3. Petition for authority to be the sole
of Court. administrator of the absolute community;
Minor or incompetent persons may sue or be 4. When a spouse, without just cause, abandons
sued BUT with the assistance of his father, the other or fails to comply with his or her
mother, guardian, or if none, a guardian ad obligations to the family with respect to
litem(Rule 3,Sec. 5). marital, parental or property relations (Article
101 and 128, Family Code);

Bar Operations C ommissions 39

 Purple Notes
Remedial Law
5. Actions involving the mortgage, encumbrance,
alienation or other disposal of a spouse‘s
exclusive property (Article 111, Family Code);
6. Actions involving the property of a spouse
under the regime of separation of property
(Article 145, Family Code).
Remedy if there is failure to implead one of
the spouses: Amendment of the complaint.
5) Quasi-Parties are those in whose behalf a
class or representative suit is brought (Rule 3, Sec.
12,).
6) Indigent Party
Party who has no money or property sufficient
and available for food, shelter and basic
necessities for himself and his family (Rule 3, Sec.
21).
To litigate as an indigent party, authority may be
granted upon an ex parte application and
hearing. However, it may be contested at any
time before judgment is rendered.
Authority to litigate as an indigent shall include
an exemption:
1. From the payment of docket fees; and,
2. From the payment of transcript of
stenographic notes.
Important: Cross-refer to Sec. 18, Rule
141(2016 Bar).
Indigent-Litigants under Rule 141:
a) Those whose gross income and that of their
immediate family do not exceed an amount
double the monthly minimum wage of an
employee; and,
b) Those who do not own real property with a
fair market value as stated in the current tax
declaration of more than Php. 300,000.
The legal fees shall be a lien on any judgment
rendered in the case favorably to the indigent
litigant, unless the court otherwise provides.
To be entitled to the exemption, the litigant shall
execute an affidavit that he and his immediate
family do not earn a gross income
40 Center for Legal Education and Research
abovementioned, nor they own any real property
with the assessed value aforementioned.
An affidavit of a disinterested person must attest
to the truth of the litigant's affidavit.
Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have
been incurred(Rule 141, Sec. 19).
Alternative Defendant – The party sued, as a
substitute of another, when the plaintiff is
uncertain of whom to sue, although a right to
relief against him may be inconsistent with
another (Rule 3,Sec. 13).
In case where there are defendants with
unknown identity, the complaint shall be
amended to indicate the correct name of the
defendants after knowing the same (Rule 3,Sec.
14).
Plaintiff - One who has an interest in the
subject matter of the action or in obtaining the
relief demanded.
Note: An unwilling co-plaintiff shall be made a
defendant and the reason therefore shall be
stated in the complaint (Rule 3,Sec. 10).
Defendant - One who claims an interest in the
controversy or the subject thereof adverse to the
plaintiff, or who ordinarily should be joined as a
plaintiff but who does not consent thereto, the
reason therefore being stated in the complaint.
 Q. How may a party implead an unwilling
plaintiff?
A.1. Before a party may be considered as
unwilling plaintiff, it must be shown that said
party is made aware of the filing of the
complaint.
A.2. It is true that an unwilling party plaintiff
may be joined as a defendant but this must
be set out at the inception of the complaint.
Even if, for the sake of argument, that this
joinder may be made via an amendment, the
allegations of the complaint do not clearly
indicate that the case involves a party who

refuses to give her consent to be joined as a
plaintiff. As revealed in open court during the
hearing on the incidents, the plaintiff
Encarnacion CleaofasVda. de Biglang Awa
has not been made aware at all of the filing
of the complaint and of the reasons
therefore. It may not therefore be correctly
said that she was an unwilling co-plaintiff
(RTC decision in Biglang-awa vs. Philippine Trust
Company, G.R. No. 158998, March 28, 2008).
3.D.2.Compulsory and Permissive Joinder
of Parties
General Rule: Permissive(Rule 3, Sec. 6)
Exception: Compulsory only when parties
involved are indispensable parties(Rule 3, Sec. 7).
Exceptions to the Exception:
1. Class suits, where it would be impractical to
include all the names of the members of the
class in the action; or,
2. When the inclusion of an indispensable party
is merely a formality.
Examples
 Co-owners are not indispensable parties in
case one of them appoints an agent, as their
obligation is solidary.
 Art. 1915, NCC. If two or more persons
have appointed an agent for a common
transaction or undertaking, they shall be
solidarily liable to the agent for all the
consequences of the agency.
The rule in this article applies even when the
appointments were made by the principals in
separate acts, provided that they are for the
same transaction. The solidarity arises from
the common interest of the principals, and
not from the act of constituting the agency.
By virtue of this solidarity, the agent can
recover from any principal the whole
compensation and indemnity owing to him
by the others. The parties, however, may,
by express agreement, negate this solidary
responsibility. The solidarity does not
disappear by the mere partition effected by
the principals after the accomplishment of
Purple Notes
Remedial Law
the agency. X xx When the law expressly
provides for solidarity of the obligation, as in
the liability of co-principals in a contract of
agency, each obligor may be compelled to
pay the entire obligation. The agent may
recover the whole compensation from any
one of the co-principals (De Castro vs. CA,
G.R. No. 115838. July 18, 2002, supra).
 Co-owners are neither indispensable nor
necessary parties in case one of them brings
an action for recovery of co-owned property.
 Q. Are all co-owners, in a suit for recovery of
a co-owned property, indispensable parties?
A.1. In suits to recover properties, all co-
owners are real parties in interest. However,
pursuant to Article 487 of the Civil Code and
relevant jurisprudence, any one of them may
bring an action, any kind of action, for the
recovery of co-owned properties. Therefore,
only one of the co-owners, namely the co-
owner who filed the suit for the recovery of
the co-owned property, is an indispensable
party thereto. The other co-owners are not
indispensable parties. They are not even
necessary parties, for a complete relief can be
accorded in the suit even without their
participation, since the suit is presumed to
have been filed for the benefit of all co-
owners(Navarro vs. Escobido, G.R. No. 153788,
November 27, 2009).
A.2. A co-owner may bring such an action,
without the necessity of joining all the other
co-owners as co-plaintiffs, because the suit is
deemed to be instituted for the benefit of all.
If the action is for the benefit of the plaintiff
alone, such that he claims possession for
himself and not for the co-ownership, the
action will not prosper(Catedrilla vs. Lauron, G.R.
No. 179011, April 15, 2013).
Permissive Joinder of Parties
The rule on permissive joinder of parties
enunciates that parties can either be joined in
one single complaint or may themselves maintain
or be sued in separate suits.
Requisites:
Bar Operations C ommissions 41
 Purple Notes
Remedial Law
1. The right to relief arose out of the same
transaction or series of transactions;
2. There is a question of law or fact common to
all the plaintiffs or defendants; and,
3. Such joinder is not otherwise proscribed by
the provisions of the Rules of Court on
jurisdiction and venue (Regalado, F.D., Remedial
Law Compendium, Volume 1, p. 91).
Series of Transactions – separate dealings
with the parties but all of which dealings are
directly connected with the same type of subject
matter of the suit. Parties can either be joined in
one single complaint or may themselves maintain
or be sued in separate suits(Regalado).
The rule also applies to counterclaims.
3.D.3. Misjoinder and Non-Joinder of
Parties
Misjoinder and/or non-joinder of Parties is not a
ground for dismissal of the action (Rule 3, Sec.
11).
A party is misjoined when he is made a party to
the action although he should not be impleaded.
A party is not joined when he is supposed to be
joined but is not impleaded in an action (Riano,
Civil Procedure Vol. I, 2016 ed., p. 230).
Remedy when there is misjoinder: Motion to
Strike the names of the parties impleaded
(objection to be raised at the earliest opportunity,
i.e. the moment defect becomes apparent; it
cannot be raised for the first time on appeal).
A separate action should be brought against the
party misjoined.
Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. (Rule 3, Sec. 11).The failure to
obey the order of the court to drop or add a
party is a ground for the dismissal of the
complaint under Rule 17, Sec. 3 of the Rules of
Court (Riano Civil Procedure Vol. I, 2016, Page 230-
231).
Effect of Non-joinder of indispensable
parties: It renders all subsequent actions of the
court null and void for want of authority to act,
42 Center for Legal Education and Research
not only as to the parties absent BUT even as to
those present.
Effect of Non-joinder of necessary parties:
Non-joinder of necessary parties does not
prevent the court from proceeding in the action,
and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party.
What should the pleader do if a necessary
party is NOT joined?
He shall set forth the name of such necessary
party, if known, and the reason for the latter‘s
omission (Rule 3, Sec. 9).
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the
omitted necessary party, if jurisdiction over his
person may be obtained.Failure to comply with
such order, without justifiable cause, shall be
deemed a waiver of the claim against such
party(Rule 3, Sec. 9).
3.D.4. Class Suit
A suit brought by a number of persons
sufficiently numerous and representative so as to
fully protect the interests of all concerned, who
are so numerous that it is impracticable to join all
as parties, and the subject matter of the
controversy is one of common or general interest
to them.
 Q.Can minors and generations yet unborn
be represented in a class suit?
A. The court finds no difficulty in ruling that
they can, for themselves, for others of their
generation and for the succeeding
generations, file a class suit. Their
personality to sue in behalf of the
succeeding generations can only be based
on the concept of inter-generational
responsibility insofar as the right to a
balanced and healthful ecology is concerned.
Such a rightconsiders the ―rhythm and
harmony of nature.‖ Needless to say, every
generation has a responsibility to the next to
preserve that rhythm and harmony for the
full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors‘
assertion of their right to a sound

environment constitutes, at the same time,
the performance of their obligation to ensure
the protection of that right for the
generations to come (Oposa vs. Factoran, G.R.
No. 101083, July 30, 1993).
Requisites of a Class Suit:(CNRA)
1. The subject matter of the controversy must
be of Common or general interest to many
persons;
2. The persons are so Numerous that it is
impracticable to join all of them as parties;
3. The parties actually before the court are
sufficiently numerous and Representative as
to fully protect the interests of all
concerned; and
4. The representatives sue or defend for the
benefit of All (Rule 3, Sec. 12; Banda vs.
Ermita, G.R. No. 166620, April 20, 2010).
 Q. Is there a class suit in an ejectment case
if there are numerous occupants in the
subject parcel of land?
A.A class suit will not lie when the numerous
occupants of a parcel of land are sued for
ejectment from the land because their
interest is not common to all. The interest of
each defendant is only with respect to the
portion he claims and occupies (Sulo ng Bayan,
Inc. vs Araneta, G.R. No. L-31061, August 17,
1976).
 Q. May a class suit be instituted on behalf of
all commmuters and motorists who will be
prejudiced by the closure and excavation of
road?
A.In this case, the suit is clearly one that
benefits all commuters and motorists who
use La Paz Road. As succinctly stated by the
CA: The subject matter of the instant case,
i.e., the closure and excavation of the La Paz
Road, is initially shown to be of common or
general interest to many persons. The
records reveal that numerous individuals
have filed manifestations with the lower
court, conveying their intention to join
private respondents in the suit and claiming
that they are similarly situated with private
respondents for they were also prejudiced by
the acts of petitioners in closing and
Purple Notes
Remedial Law
excavating the La Paz Road. Moreover, the
individuals sought to be represented by
private respondents in the suit are so
numerous that it is impracticable to join them
all as parties and be named individually as
plaintiffs in the complaint. These individuals
claim to be residents of various barangays in
Biñan, Laguna and other barangays in San
Pedro, Laguna (Juana Complex I Homeowners‘
Assoc., Inc. et al., vs. Fil-Estate Land, Inc., et al.,
G.R. No. 152272, March 5, 2012).
3.D.5. Suits Against Entities Without
Juridical Personality
Persons associated in an entity without juridical
personality may be sued under the name by
which they are generally or commonly known,
but they cannot sue under such name(Rule 3, Sec.
15).
Note: Summons to one of them is valid service
of summons to all of them (see discussion on
Summons).
3.D.6. Effect of Death of a Party Litigant;
Duty of Counsel (Rule 3, Sec. 16)
Whenever a party to a pending action dies, and
the claims not thereby extinguished, it shall be
the duty of the counsel to inform the court within
thirty (30) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives.
Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
Note: In Rule 3, Sec. 16, the death of a party is
pendente lite. On the other hand, in Rule 39, Sec.
7, the death occurs after judgment has become
final and executory.
 Q. Will the attorney-client relationship still
subsist in case the client dies?
A. The death of the client extinguishes the
attorney-client relationship and divests the
counsel of his authority to represent the
client. Accordingly, a dead client has no
personality and cannot be represented by an
attorney (Laviña vs. CA, G.R. No. 78295 & 79917,
April 10, 1989).
Bar Operations C ommissions 43
 Purple Notes
Remedial Law
 Q. Does the counsel of the deceased become Note: The executor or administrator shall
the counsel of his heirs upon his death? immediately appear for and on behalf of the
deceased.
A. No, the counsel will not become the
counsel of the heirs of the deceased unless The court charges in procuring such
his services are engaged by said heirs (Lawas appointment, if defrayed by the opposing party,
vs. CA, G.R. No. L-45809,December 12, 1986). may be recovered as costs.

Substitution by Heirs of the Deceased Substitute Defendant Need NOT Be

Summoned
The heirs of the deceased may be allowed to be
substituted for the deceased, WITHOUT requiring Order of substitution shall be served upon the
the appointment of an executor or administrator parties to acquire jurisdiction over the substitute.
and the court may appoint a guardian ad litem
for the minor heirs. If the action does not survive (like the purely
personal action of support, annulment of
The court shall forthwith order said legal marriage and legal separation), the court shall
representative or representatives to appear and simply dismiss the case.
be substituted within a period of thirty (30) days
from notice. When the action is for the recovery of money
arising from contract and the defendant dies
ACTION THAT ACTION THAT DOES before entry of final judgment, the court shall not
SURVIVES NOT SURVIVE dismiss the suit. It shall continue and his legal
The wrong complained It is one where representative or legal heir shall substitute the
of affects primarily property or property
deceased. If the plaintiff obtains a favorable
property and property rights are merely
rights. The injuries to incidental (e.g.,
judgment, said judgment shall be enforced as a
the person are merely Annulment of Marriage, money claim against the estate of the deceased
incidental. Declaration of Nullity of (Rule 3,Sec. 20).
Marriage). The injury
complained of is to the Effect of Transfer of Interest
person.
Upon the death of a Upon the death of a General Rule: The action may be continued by
party, he is succeeded party, the case is or against the original party.
by the estate. Thus, in dismissed.
procedure, a person Exception: When the court, upon motion,
never dies; he continues
directs the person to whom the interest is
in his estate.
transferred to be substituted in the action or
Note: Estate is the joined with the original party (Rule 3, Sec. 19)
totality of ALL the assets
AND liabilities of the  The substitution of parties in this case is not
decedent. mandatory but only permissive.
(Cruz vs. Cruz, GR No. 173292, September 1, 2010.)  A transferee pendente lite is a proper party
and not an indispensable party.
When There is No Legal Representative  If the transfer was effected before the
commencement of the suit, the transferee
The court may order the opposing party to must necessarily be a party to the case.
appoint an executor or administrator when:  But said party may file a third-party
complaint and implead the transferor in the
a) The counsel for the deceased does not name action whenever the same is necessary for
a legal representative; or, the complete determination of all the rights
b) There is a representative named but he failed of the parties.
to appear within the specified period (Rule 3,
Sec. 16)

44 Center for Legal Education and Research

 Purple Notes
Remedial Law
Death or Separation of a Public Officer deceased, but also the resulting judgments. In
those instances, the courts acquired no
1. The public officer is a party in an action in his jurisdiction over the persons of the legal
official capacity; representatives or the heirs upon whom no
2. During the pendency of the action, the public judgment was binding.
officer dies, resigns or otherwise ceases to
hold office; 3.E. VENUE
3. Within 30 days after the successor takes
office or such time as may be granted by the It is the place, or the geographical area, in which
court, it is satisfactorily shown by any party a court with jurisdiction may hear and determine
that there is a substantial need for continuing a case, or the place where a case is to be tried.
or maintaining the action and that the
successor adopts or continues or threatens to  Q. What is the purpose of venue?
adopt or continue the action of his
predecessor; A. The rules on venue, like other procedural
4. Before substitution, proper notice must be rules, are designed to insure a just and
given to the officer to be affected and he orderly administration of justice or the
must be accorded an opportunity to be impartial and evenhanded determination of
heard(Rule 3, Sec. 17). every action and proceeding. Obviously, this
objective will not be attained if the plaintiff is
Consequence: The action may be continued given unrestricted freedom to choose where
and maintained by or against the successor. to file the complaint or petition (Mangila vs.
Court of Appeals, G.R. No. 125027, August 12,
Action on Contractual Money Claims (Rule 3, 2002).
Sec. 20)
Jurisdiction vs. Venue
1. The action is for recovery of money arising (Riano, Civil Procedure, Vol. I, 2016 ed., p. 147)
from contract, express or implied; and
2. The defendant dies BEFORE entry of final JURISDICTION VENUE
judgment in the court in which the action The authority to hear The place where the
was pending at the time of such death. and determine a case. case is to be instituted;
deals with locality.
Consequences: A matter of A matter of procedural
substantive law. or adjective law.
 The case shall NOT be dismissed. Instead, it Conferred by law or May be conferred by the
the Constitution and act or agreement of the
will continue until entry of final judgment.
cannot be otherwise parties.
 A favorable judgment obtained by the plaintiff agreed upon by the
shall be enforced in a manner especially parties.
provided for prosecuting claims against the Cannot be waived; May be waived.
estate of a deceased person (See: Rule 86). except jurisdiction over
 In case the property of the deceased has the person.
been attached, the writ of attachment will Establishes a relation Establishes a relation
NOT be dissolved but will entitle the between the court and between the plaintiff
judgment-creditor to preference over other the subject matter. and the defendant.
creditors against the estate. Limitation on the Limitation on the court.
plaintiff.
 When a party to a pending action dies and the
Deals with substance. Matter of convenience.
claim is not extinguished, the Rules of Court
Courts may motu Courts may not motu
require a substitution of the deceased. The proprio dismiss a case proprio dismiss a case
procedure is specifically governed by Sec.16 for lack of jurisdiction. on ground of improper
of Rule 3. venue.
 The Court has nullified not only trial
proceedings conducted without the Note: The parties may stipulate on the venue as
appearance of the legal representatives of the long as the agreement is:

Bar Operations C ommissions 45

 Purple Notes
Remedial Law
a) in writing; Makati because Makati is the place where the
b) made before the filing of the action, and main office of BPI was located (BPI Family
c) exclusive as to the venue. Savings Bank, Inc. vs. Sps. Yujuico, G.R. No.
175796, July 22, 2015).
3.E.1. Venue of Real Actions (Rule 4, Sec. 1)
3.E.3. Venue of Actions Against Non-
The venue of real actions is the place where the Residents (Rule 4,Sec. 3)
property involved, or a portion of it is situated.
Non-Resident Defendant
The rule on venue of real actions covers actions Venue of Not Found in
Found in the
the Action the
pertaining to title or possession of real property Philippines
Philippines
or interest therein.
Residence of Personal Actions
the Plaintiff. Actions. involving
 Venue if it involves property located at personal status
the boundary of 2 places: File a case in of the plaintiff.
either place at the option of the plaintiff. Where the Real Actions. Actions
property is involving any
 Venue if case involves 2 properties Located. property of the
located in 2 different places: said defendant
located in the
Philippines.
 If the properties are the object of the
same transaction: file it in any of the 2
places. Residence - the place where the party actually
resides at the time of action. It does not mean
 If the properties are the subject of 2 permanent home or domicile.
distinct transactions: separate actions
should be filed in each place unless  Q. What is the rule on venue if the plaintiff is
properly joined. not a resident of the Philippines and the
defendant is the one who resides in the
 In case of forcible entry and unlawful Philippines?
detainer, the action shall be commenced and
tried in the MTC of the municipality or city A.The plaintiff in this action has no residence
wherein the real property or a portion thereof in the Philippine Islands. Only one of the
is situated(Rule 4, Sec. 1). parties to the action resides here. There can
be, therefore, no election by plaintiff as to
3.E.2. Venue of Personal Actions (Rule 4,Sec. the place of trial. It must be in the province
2) where the defendant resides (Ang vs. Sps.
Ang, G.R. No. 201675, June 19, 2013).
The venue of personal actions is the place where 3.E.4. When the Rules on Venue Do Not
the plaintiff or any of the principal plaintiffs or Apply (Rule 4,Sec. 4)
where the defendant or any of the principal
defendants reside, at the election of the plaintiff. The Rules do not apply:
 Q. Is an action to recover deficiency of a. In those cases where a specific rule or law
balance after the extrajudicial foreclosure of provides otherwise, e.g. civil case for damages
the real property a real or personal action? in case of libel (Art. 360, RPC);or,
A.An action to recover the deficiency after b. Where the parties have validly agreed in
the extrajudicial foreclosure of the real writing before the filing of the action on the
property mortgage is a personal action, for it exclusive venue thereof (Pacific Consultants vs.
does not affect title to or possession of real Schonfeld, G.R. No. 166920, February 19, 2007).
property or any interest therein. Accordingly,
the proper venue in this case is the RTC in

46 Center for Legal Education and Research


3.E.5. Effects of Stipulations on Venue
Venue Stipulations
 Q. When is the stipulations on venue
permissive or restrictive?
A.Stipulations on venue, however, may either
be permissive or restrictive. Written
stipulations as to venue may be restrictive in
the sense that the suit may be filed only in
the place agreed upon, or merely permissive
in that the parties may file their suit not only
in the place agreed upon but also in the
places fixed by law. As in any other
agreement, what is essential is the
ascertainment of the intention of the parties
respecting the matter (Legaspi vs. Republc,
G.R. No. 160653, July 23, 2008).
 Q. How to determine if the venue stipulation
is exclusive/restrictive?
A.1. If the intention of the parties were to
restrict venue, there must be accompanying
language clearly and categorically expressing
their purpose and design that actions
between them be litigated only at the place
named by them. (Pacific Consultants vs.
Schonfeld, G.R. No. 166920, February 19, 2007).
A.2.In view of the predilection to view a
stipulation on venue as merely permissive,
the parties must, therefore, employ words in
the contract that would clearly evince a
contrary intention. In Spouses Lantin vs.
Judge Lantion, the Court emphasized that the
mere stipulation on the venue of an action is
not enough to preclude parties from bringing
a case in other venues. The parties must be
able to show that such stipulation
is exclusive. In the absence of qualifying or
restrictive words, the stipulation should be
deemed as merely an agreement on an
additional forum, not as limiting venue to the
specified place (Planters Dev‘t. Bank vs. Ramos,
G.R. No. 228617, September 20, 2017).
Qualifying or Restrictive words
a) "only‖;
b) "solely";
c) "exclusively in this court";
Purple Notes
Remedial Law
d) "in no other court save";
e) "particularly";
f) "nowhere else but/except —"; and,
g) words of equal import (Pacific Consultants
vs. Schonfeld, G.R. No. 166920, February 19,
2007).
 The court may declare an agreement on
venue as contrary to public policy if the
stipulation unjustly denies a party a fair
opportunity to file suit in the place
designated by the rules. (Sweet Lines Inc. vs.
Teves, G.R. No. L-37750, May 19, 1978).
 A third party complaint is ancillary to the
main action. Hence, it must yield to the
jurisdiction and venue of the main action
even if said third party complaint is based on
a separate agreement specifying a different
venue.
Improper Venue
General Rule: Although the venue is technically
improper, the venue will be deemed proper if the
defendant does not object.
Since venue is not a matter of substantive law
but is primarily for the convenience of the
parties, it would be up for the defendant to
question the venue. If he does not raise the issue
of venue, the Court has no authority to motu
proprio dismiss a case for improper venue.
Exception: In cases covered by Summary
Procedure, the court may dismiss a case outright
on any of the grounds apparent in the complaint.
This of course includes improper venue. The
dismissal here need not be preceded by a motion
to dismiss because it may be done by the court
motu proprio(Sec. 4, 1991 Rules of Summary
Procedure).
 Q.What is the effect of restricting the filing of
any suit or action with regards to venue?
A.In the present case, Spouses Ramos had
validly waived their right to choose the venue
for any suit or action arising from the
mortgages or promissory notes when they
agreed to the limit the same to Makati City
only and nowhere else. True enough, the
stipulation on the venue was couched in a
Bar Operations C ommissions 47
 Purple Notes
Remedial Law
language showing the intention of the parties Always filed before
to restrict the filing of any suit or action to judgment.
the designated place only (i.e., ―exclusively‖,
―waiving for this purpose any other venue‖). 3.F.1. Kinds of Pleadings and when they
It is crystal clear that the intention was not should be filed
just to make the said place an additional
forum or venue but the only jurisdiction INTERPOSING A INTERPOSING A
where any suit or action pertaining to the CLAIM DEFENSE
mortgage contracts may be filed. There being Includes: Includes:
no showing that such waiver was invalid or 1. Complaint 1. Answer
that the stipulation on venue was against 2. Counterclaim 2. Reply
3. Cross-claim 3. Rejoinder
public policy, the agreement of the parties
4. 3rd, 4th, 5th, etc. -
should be upheld (Planters Dev‘t. Bank vs. party complaint
Ramos, G.R. No. 228617, September 20, 2017). 5. Complaint-in-
intervention (Rule
3.F. PLEADINGS 19)

Pleadings are the written statements of the Pleadings to be Filed by Different Parties
respective claims and defenses of the parties
submitted to the court for appropriate judgment PARTY PLEADING TO BE FILED
(Rule 6, Sec. 1). Plaintiff Complaint;
Reply
Purpose of pleadings Defendant Answer;
Rejoinder;
1. To define the issues and foundation of proof Counterclaim;
to be submitted during the trial (Lianga Lumber Cross-claim
vs. Lianga Timber, G.R. No. L-38685, March 31, 3rd, 4th, etc. - Answer;
1977); and Party Defendant Counterclaim;
Cross-claim
2. To apprise the court of the rival claims of the
Counter-claimant Answer;
parties(Albano, Remedial Law).
or Cross-claimant Counterclaim;
Cross-claim
Nature of the Pleading Intervenor Complaint-in-intervention;
Answer-in-intervention
Elementary is the rule of procedure that the
nature of a pleading is to be determined by the
 Q. Are there any changes to procedure when
averments in it and NOT by its title (Bank of
Commerce vs. Perlas-Bernabe, G.R. No. a dismissed case is re-filed?
172393,October 20, 2010).
A. No.The procedure for dismissed
caseswhen re-filed is the same as though it
Pleading vs. Motion was initially lodged, i.e., the filing of answer,
reply, answer to counter-claim, including
PLEADING MOTION other foot-dragging maneuvers, except for
the rigmarole of raffling cases which is
A statement of the An application for relief
claims and defenses, other than by a
dispensed with since the re-filed complaint is
focusing on matters to pleading(Rule 15, Sec. automatically assigned to the branch to
be included in the 1). which the original case pertained. A
judgment(Rule 6, Sec. complaint that is re-filed leads to the re-
1). enactment of past proceedings with the
General relief is prayed Particular relief is concomitant full attention of the same trial
for. sought. court exercising an immaculate slew of
Pleadings are not Motion is a kind of jurisdiction and control over the case that
motions. pleading. was previously dismissed, which in the
May be initiatory.
context of the instant case is a waste of

48 Center for Legal Education and Research


judicial time, capital and energy (RCBC vs.
Magwin Marketing, G.R. No. 152878, May 5,
2003).
3.F.1a. Complaint
Complaint is a pleading alleging the plaintiff‘s or
claiming party‘s cause/s of action.The names and
residences of the plaintiff anddefendant must be
stated in thecomplaint(Rule 6, Sec. 3).
Under the 2019 Amendments, every pleading
stating a party's claims or defenses shall, in
addition to those mandated by Rule 7, Sec. 6,
state the following:
a) Names of witnesses who will be presented to
prove a party's claim or defense;
b) Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be attached
to the pleading and form an integral part
thereof.
Only witnesses whose judicial affidavits are
attached to the pleading shall be presented by
the parties during trial. Except if a party
presents meritorious reasons as basis for the
admission of additional witnesses, no other
witness or affidavit shall be heard or admitted
by the court; and
c) Documentary and object evidence in support
of the allegations contained in the pleading
(Rule 7, Sec. 6).(n)
 Q.What is the purpose of a complaint?
A.The purpose of a complaint is to inform the
defendant clearly and definitely of the claims
made against him so that he may be
prepared to meet the issues at the trial
(Tantuico, Jr. vs. Republic, G. R. No. 89114,
December 2, 1991).
Ultimate Facts - The essential facts constituting
the plaintiff‘s cause of action.
 Q.When is a fact essential?
A.A fact is essential if it canot be stricken out
without leaving the statement of the cause of
Purple Notes
Remedial Law
action insufficient (Tantuico, Jr. vs. Republic, G.
R. No. 89114, December 2, 1991).
Evidentiary Facts - Those facts which are
necessary for determination of the ultimate facts
(Salita vs. Magtolis, G. R. No. 106429, June 13, 1994).
Test of Sufficiency of the Facts (alleged in
the complaint): If upon admission or proof of the
facts being alleged, a judgment may properly be
given.
3.F.1b. Answer (Rule 6, Sec. 4 and 5)
An answer is a pleading in which a defending
party sets forth his or her defenses. Defenses
may be negative or affirmative
Kinds of Defenses that may be contained in
the answer:
1. Negative Defenses
a. Negative Pregnant
2. Affirmative Defenses
Negative Defense involves the specific denial
of the material facts alleged in the pleading of
the claimant essential to his or her cause/s of
action (Rule 6, Sec. 5[a]).
Note: General denial will be deemed an
admission of the averments in the complaint.
Negative Pregnant is a form of negative
expression which carries with it an affirmation or
at least an implication of some kind favorable to
the adverse party (Nelson Valdez vs. Atty. Antolin
Dabon, Jr., A.C. No. 7353,November 16, 2015).
 Q. When is a defense considered negative
pregnant?
A. It is considered a negative pregnant
when it contains a denial pregnant with an
admission of the substantial facts alleged in
the pleading. Where a fact is alleged with
qualifying or modifying language and the
words of the allegation as so qualified or
modified are literally denied, it has been
held that the qualifying circumstances alone
are denied while the fact itself is admitted
(Republic of the Philippines vs. Sandiganbayan,
G.R. No. 152154, July 15, 2003).
Bar Operations C ommissions 49
 Purple Notes
Remedial Law
 Q. How is a an allegation considered a
negative pregnant?
A.Where a fact is alleged with qualifying or
modifying language and the words of the
allegation as so qualified or modified are
literally denied, it has been held that the
qualifying circumstance alone is denied while
the fact itself is admitted. It is clear from
Atty. Gabon‘s Comment that his denial only
pertained as to the existence of a forced
illicit relationship. Without a categorical
denial thereof, he is deemed to have
admitted his consensual affair. (Nelson Valdez
vs. Atty. Antolin Dabon, Jr., A.C. No. 7353,
November 16, 2015)
Effect of Negative Pregnant: The averments
to which it was directed are admitted.
Affirmative defense is an allegation of a new
matter, which, while hypothetically admitting the
material allegations in the pleading would
nevertheless prevent or bar recovery by him or
her.
The affirmative defenses
include:(SPIDERS-OFF)
a. Statute of limitations;
b. Payment;
c. Illegality;
d. Discharge in bankruptcy;
e. Estoppel;
f. Release;
g. Statute of frauds;
h. Any Other matter by way of confession and
avoidance;
i. Former recovery; and
j. Fraud.
Affirmative defenses may also include
grounds for the dismissal of a complaint,
specifically:
a) that the court has no jurisdiction over the
subject matter;
b) that there is another action pending between
the same parties for the same cause; or
c) that the action is barred by a prior
judgment(Rule 6, Sec. 5[b]).
(This will be discussed in detail under Allegations
in a Pleading)
50 Center for Legal Education and Research
3.F.1c. Counterclaims
A counterclaim alleges any claim, which a
defending party may have against an opposing
party(Rule 6, Sec. 6).
A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is NOT part of the answer. It is a
distinct and independent cause of action. Upon
its filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered within 20 calendar days from service.
Compulsory Counterclaim
Requisites of compulsory counterclaim:
a) it arises out of or is necessarily connected
with the transaction or occurrence which is
the subject matter of the opposing party‘s
claim
b) It does not require for its adjudication the
presence of third parties over whom the
court cannot acquire jurisdiction; and,
c) The court has jurisdiction to entertain the
claim both as to its amount and nature,
except in an original action before the RTC,
the counterclaim may be considered
compulsory regardless of the amount (Rule
6,Sec. 7; Metropolitan Bank and Trust vs. CPR
Promotions and Marketing, Inc., G.R. No. 200567,
June 22, 2015).
―Compelling Test of Compulsoriness‖
requires a logical relationship between the claim
and the counterclaim, that is, where conducting
separate trials of the respective claims of the
parties would entail a substantial duplication of
effort and time of the parties and of the
court(Quintanilla vs. C.A., G.R. No. 101747,
September 24, 1997).
 Q. What is the effect if the counterclaim is in
excess of jurisdiction of the court?
A. If the counterclaim, in excess of the
jurisdiction of the court, is interposed in the
same action and the court finds both
plaintiff's complaint and defendant's
counterclaim (for an amount exceeding said
court's jurisdiction) meritorious, it will simply
dismiss the complaint on the ground that

defendant has a bigger credit. Since
defendant still has to institute a separate
action for the remaining balance of his
counterclaim, the previous litigation did not
really settle all related controversies (Calo vs.
Ajax International, Inc., G.R. No. L-22485, March
13, 1968).
A compulsory counterclaim cannot be the subject
of a separate action but it should instead be
asserted in the same suit involving the same
transaction or occurrence, which gave rise to it.
It is elementary that a defending party‘s
compulsory counterclaim should be interposed at
the time he files his Answer, and that failure to
do so shall effectively bar such claim(Metropolitan
Bank and Trust Company vs. CPR Promotions and
Marketing, Inc., G.R. No. 200567, June 22, 2015).
Test to determine whether a counterclaim
is compulsory or not:
1) Are the issues of fact or law raised by the
claim and the counterclaim largely the
same?;
2) Would res judicata bar a subsequent suit on
defendant‘s claim absent the compulsory
counterclaim rule?;
3) Will substantially the same evidence support
or refute plaintiff‘s claim as well as the
defendant‘s counterclaim?; and,
4) Is there any logical relation between the
claim and the counterclaim? (Arturo C. Alba, Jr.
vs. RaymundMalapajao, G.R. No. 198752, January
13. 2016)
Note: Affirmative answers to the above queries
indicate the existence of a compulsory
counterclaim (Financial Building vs. Forbes Park,
G.R. No. 133119, August 17, 2000).
 Q. When is counterclaim considered
permissive?
A.The Court ruled that Alday‘s counterclaim
for commissions, bonuses and accumulated
premium reserves is merely permissive. The
evidence required to provedAlday‘s claims
differs from that needed to establish FGU‘s
demands for recovery of cash accountabilities
from Alday, such as cash advances and costs
of premiums. The recovery of FGU‘s claims is
Purple Notes
Remedial Law
not contingent or dependent upon
establishing Alday‘s counterclaim, such that
conducting separate trials will not result in
the substantial duplication of the time and
effort of the court and the parties (Alday vs.
FGU Insurance Corp., G.R. No. 138822, January
23, 2001).
 Q. When is counterclaim considered
compulsory?
A.When Mercado sought to annul the
continuing hold-out agreement and deed of
assignment (which he executed as security
for his credit purchases), he in effect sought
to be freed from them. While he admitted
having outstanding obligations, he
nevertheless asserted that those were not
covered by the assailed accessory contracts.
For its part, aside from invoking the validity
of the said agreements, SMC therefore
sought to collect the payment for the value of
the goods Mercado purchased on credit.
Thus, Mercado‘s complaint and SMC‘s
counterclaim both touched the issues of
whether the continuing hold-out agreement
and deed of assignment were valid and
whether Mercado had outstanding liabilities
to SMC. The same evidence would essentially
support or refute Mercado‘s claim and SMC‘s
counterclaim. Based on the foregoing, had
these issues been tried separately, the efforts
of the RTC and the parties would have had to
be duplicated. Clearly, SMC‘s counterclaim,
being logically related to Mercado‘s claim,
was compulsory in nature (Mercado vs. CA,
G.R. No. 169576, October 17, 2008).
Doctrine of Ancillary Jurisdiction
Under this doctrine, the federal district court
acquires jurisdiction of case or controversy as an
entirety and may, as incident to disposition of
matter properly before it, possess jurisdiction to
decide other matters raised by case, though
district court could not have taken cognizance of
them if they had been independently
presented(Black's Law Dictionary 79 [5th ed., 1979]).
Applying to counterclaim, the counterclaim may
be considered compulsory regardless of the
amount, in an original action in the Regional Trial
Court. (Rule 6, Sec. 7)
Bar Operations C ommissions 51
 Purple Notes
Remedial Law
Motion to Dismiss and Compulsory COMPULSORY PERMISSIVE
Counterclaim COUNTERCLAIM COUNTERCLAIM
require to be considered an initiatory
Filing of a motion to dismiss and setting up a accompanied by a pleading.
certification against
compulsory counterclaim are incompatible
forum-shopping or,
remedies. If both are availed and in the event whenever required by
the motion to dismiss is meritorious, the party law, certificate to file
loses his counterclaim. Thus, if he opts to set up action issued by the
his counterclaim, he may still plead his ground LupongTagapamayapa.
for dismissal as an affirmative defense in his Need not be answered; Must be answered,
answer. no default. (Gojo vs. otherwise there can be
Goyaa, G.R. an order of default.
 Q. Can a plaintiff who did not file an answer No. L-26768, October (Sarmiento vs. Juan, G.R.
to a compulsory counterclaim be declared in 30, 1970) No. L-56605,
January 28, 1983)
default?
Payment of docket fees This is an initiatory
for compulsory pleading and therefore,
A. No. A plaintiff who fails or chooses not to counterclaim remains to there is a need to pay
answer a compulsory counterclaim may not be suspended. The the docket fee.
be declared in default, principally because ruling in Korea
the issues raised in the counterclaim are Technologies Co., vs.
deemed automatically joined by the Lerma(G.R. No.
allegations of the complaint(Gojo vs. Goyala, 143581, January 7,
G.R. No. L-26768, October 30, 1970). 2008) with respect to
the requirement of
payment of docket fees
Permissive Counterclaim
for compulsory
counterclaims has been
A counterclaim is permissive if it does not arise deleted in a revised
out of or is not necessarily connected with the issuance: OCA Circular
subject matter of the opposing party's claim. It 96-2009, August 13,
is essentially an independent claim that may be 2009).
filed separately in another case (Alba vs. Malapajo,
G.R. no. 198572, January 13, 2016). Barred if not set up in Not barred even if not set
the action except after- up in the action. The
Permissive Counterclaim vs. Compulsory acquired counterclaim. defendant can institute
Counterclaim (Rule 9, Sec.2) another action for
recovery.
This is also referred to
COMPULSORY PERMISSIVE as ―set-off‖. This is also referred to as
COUNTERCLAIM COUNTERCLAIM ―recoupment‖.
Arises out of or is Does not arise out of or
necessarily connected is necessarily connected
with the transaction with the subject matter Effect on the counterclaim when the
that is the subject of the opposing party‘s complaint is dismissed
matter of the opposing claim.
party‘s claim. (Rule 6,  Where the defendant files an answer
Sec.7) raising as affirmative defenses in Rule
Does not require for its It may require for its 8, Sec. 12 (a) which includes a
adjudication the adjudication the presence
counterclaim. The court then shall, motu
presence of third of third parties over
parties of whom the whom the court cannot
proprio, resolve such affirmative defenses. If
court cannot acquire acquire jurisdiction during the hearing on the affirmative
jurisdiction(Rule 6, defenses, the court decides to dismiss the
Sec.4). complaint, such dismissal shall be limited to
Since it is not Should be accompanied the complaint, and does not include
considered an initiatory by the certificates dismissal of the counterclaim, compulsory or
pleading, it does not mentioned since it is permissive.

52 Center for Legal Education and Research


 When the plaintiff files a motion to
dismiss on his complaint under Rule
17, Sec. 2 after the defedendant has
pleaded his answer with a A cross-claim must be set up by a defending
counterclaim. If a counterclaim has
already been pleaded by the defendant prior
to the service upon him of the plaintiff‘s
motion to dismiss, and the court grants the
said motion to dismiss, the dismissal shall be
limited to the complaint. The dismissal shall
be without prejudice to the right of the
defendant to prosecute his or her
counterclaim in a separate action unless
within fifteen (15) calendar days from notice
of the motion he or she manifests his or her
preference to have his or her counterclaim
resolved in the same action (Rule 17, Sec. 2).
 When the Dismissal is due to plaintiff’s
fault under Rule 17, Sec. 3 and at a
time when a counterclaim has already
been set up. The dismissal shall be without
prejudice to the right of the defendant to
prosecute his or her counterclaim in the
same or in a separate action. (Rule 17, Sec.
3).
 Q. Does the dismissal of a complaint follow
dismissal of counterclaim?
A.No.A dismissal of an action is different
from a mere dismissal of the complaint. For
this reason, since only the complaint and not
the action is dismissed, the defendant in
spite of said dismissal may still prosecute his
counterclaim in the same action In Pinga,
the Court clearly stated that the dismissal of
the complaint does not necessarily result to
the dismissal of the counterclaim (Lim Teck
Chuan vs. LeopoldaCecilio, G.R. No. 155701,
March 11, 2015).
3.F.1d. Cross-Claims
Cross-claim is any claim by one party against a
co-party arising out of the transaction or
occurrence that is the subject matter either of
the original action or of a counterclaim therein. It
may cover all or part of the original claim. (Rule 6,
Sec. 8)
It is asserted by a defending party against a co-
defending party so that the latter may be held
Purple Notes
Remedial Law
liable for the claim which the claimant seeks to
recover from the cross-claimant.
party at the time he files his answer.
General Rule: Cross-claim is barred if not set up
in the action. (Rule 9, Sec. 2)
Exceptions:
1. When it is outside the jurisdiction of the court;
2. When the court cannot acquire jurisdiction
over third parties whose presence is necessary
for the adjudication of the cross-
claim(Regalado. Vol. 1. 8th ed. p. 147);
3. When the cross-claim either matures or is
acquired by a party after servinghis or her
pleading, it may still be setup, with leave of
court, by supplemental pleadings before
judgment (Rule 11, Sec. 9); or
4. If through oversight, inadvertence, or
excusable neglect, it is not asserted, it may
still be set up, with leave of court, by
amendment of the pleadingsbefore judgment
(Rule 11, Sec. 10).
Note: The cross-claim that shall be barred if not
asserted is the cross-claim already existing at the
time the answer is filed, not the cross-claim that
may mature or may be acquired after service of
the answer. As to the latter, Rule 10, Sec.
6declares that it may, by leave of court, be set
up by way of a supplemental pleading.
The dismissal of a complaint carries with it the
dismissal of a cross-claim which is purely
defensive but not a cross-claim seeking an
affirmative relief.
Omitted Counterclaim or Cross-claim
When a pleader fails to set up a counterclaim or
a cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he or
she may, by leave of court, set up the
counterclaim or cross-claim by amendment
before judgment (Rule 11, Sec. 10).
3.F.1e. Third(Fourth, etc.)-party complaints
Third, etc.,-party complaint is a claim that a
defending party may, with leave of court, file
Bar Operations C ommissions 53
 Purple Notes
Remedial Law
against a person not a party to the action who is
called the third-party defendant, for Contribution,
Indemnity, Subrogation, or any Other
relief(CISO), in respect of his opponent‘s
claim.(Rule 6, Sec. 11).
Purpose
The purpose of Section 11, Rule 6 of the Rules of
Court is to permit a defendant to assert an
independent claim against a third-party which he,
otherwise, would assert in another action, thus
preventing multiplicity of suits. All the rights of
the parties concerned would then be adjudicated
in one proceeding. This is a rule of procedure and
does not create a substantial right. Neither does
it abridge, enlarge, or nullify the substantial
rights of any litigant (Asian Construction and
Development Corporation vs. CA, G.R. No, 160242,
May 17, 2005).
Requisites for a third-party action:
1) the party to be impleaded must not yet be a
party to the action;
2) the claim against the third-party defendant
must belong to the original defendant;
3) the claim of the original defendant against the
third-party defendant must be based upon the
plaintiffs claim against the original defendant;
and
4) the defendant is attempting to transfer to the
third-party defendant the liability asserted
against him by the original plaintiff. (Philtranco
vs. Paras, G.R. No. 161909, April 25, 2012).
Test to determine if third-party claim is in
respect of plaintiff’s claim:
1) Whether it arises out of the same transaction
on which the plaintiff‘s claim is based, or
although arising out of another or different
transaction, is connected with the plaintiff‘s
claim;
2) Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all
or part of the claim against original defendant,
although the third-party defendant‘s liability
arises out of another transaction; and,
3) Whether the third-party defendant may assert
any defenses which third party plaintiff has or
may have to the plaintiff‘s claim.(Asian
54 Center for Legal Education and Research
Construction and Development Corporation vs. CA,
G.R. No. 160242, May 17, 2005).
Note: Judgment on a third-party complaint may
become final and executory without waiting for
the determination of the main case.
When third (fourth, etc.)- party be denied
admission, and the court shall require
defendant to institute a separate action
a) the third (fourth, etc.)- party defendant
cannot be located within thirty (30) calendar
days from the grant of such leave;
b) matters extraneous to the issue in the
principal case are raised; or
c) the effect would be to introduce a new and
separate controversy into the action(Rule 6,
Sec 11). (n)
Disallowance of third-party complaint
appealable
The admission of a third-party complaint lies
within the sound discretion of the trial court. If
leave to file a third-party complaint is denied,
then the proper remedy is to file a separate case,
not to insist on the admission of the third-party
complaint all the way up to this Court. (DBP vs.
Clarges Realty Corporation, G.R. No. 170060, August
17, 2016 – Case penned by J.Leonen)
Right to file third-party complaint
discretionary upon the trial court
The right to file a third-party complaint against a
third-party rests in the discretion of the trial
court. The third-party complaint is actually
independent of, separate and distinct from the
plaintiff‘s complaint, such that were it not for the
rule, it would have to be filed separately from the
original complaint.
A prerequisite to the exercise of such right is that
some substantive basis for a third-party claim be
found to exist, whether the basis be one of
indemnity, subrogation, contribution or other
substantive right(Asian Construction and
Development Corporation vs. CA, G.R. No. 160242,
May 17, 2005).
 Purple Notes
Remedial Law
Propriety of impleading third-party petitioner also sought the dismissal of the
defendant respondent‘s complaint. The amount that
petitioner seeks to collect from Becthel
The bringing of a third-party defendant is proper would NOT be remitted to the respondent
if he would be liable to the plaintiff or to the after all (Asian Construction and Development
defendant, or both, for all or part of the plaintiff‘s Corporation vs. CA, G.R. No. 160242, May 17,
claim against the original defendant, although the 2005).
third-party defendant‘s liability arises out of
 It goes without saying that the denial of the
another transaction.
petitioner‘s motion with leave to file a third-
party complaint against Becthel is without
The defendant may implead another as third-
prejudice to its right to file a separate
party defendant
complaint against the latter (Asian
Construction and Development Corporation vs.
a) on an allegation of liability of the third-party CA, G.R. No. 160242, May 17, 2005).
defendant to the defendant for contribution,
indemnity, subrogation or any other relief; Distinction between Third-Party Complaint
b) on the ground of direct liability of the third- and Cross-Claim
party defendant to the plaintiff or to both the
plaintiff and the defendant; and, THIRD-PARTY
c) there is a causal connection between the CROSS-CLAIM
COMPLAINT
claim of the plaintiff in his complaint and a Against a person not Against a co-party. (Rule 6,
claim for contribution, indemnity or other a party to the action. Sec. 8)
relief of the defendant against the third-party (Rule 6, Sec. 11)
defendant. (Asian Construction and Development Third party is not yet Cross defendant is a co-
Corporation vs. CA, G.R. No. 160242, May 17, impleaded. party, thus, already
2005). impleaded.
Must be pertaining to Must arise out of the
 Q. What is the requirement for a third-party the opponent‘s transaction that is the
(plaintiff‘s) claim. subject matter of the
complaint relative to recovery?
original action or of the
A. The third-party complaint does not have counterclaim therein. (Rule
6, Section 8).
to show with certainty that there will be
recovery against the third-party defendant,
and it is sufficient that pleadings show Distinction between Third-Party Complaint
possibility of recovery. In determining the and Complaints-in-Intervention
sufficiency of the third-party complaint, the
THIRD-PARTY COMPLAINT-IN-
allegations in the original complaint and the
COMPLAINT INTERVENTION
third-party complaint must be examined. A Brings into the action Same
third-party complaint must allege facts which a third person not
prima facie show that the defendant is originally a party(Rule
entitled to contribution, indemnity, 6, Sec. 11
subrogation or other relief from the third- Initiative is with the Initiative is with a non-
party defendant (Asian Construction and person already a party who seeks to join the
Development Corporation vs. CA, G.R. No. party to the action. action.
160242, May 17, 2005).
3.F.1f.Complaint-in-Intervention
 Motion to file third-party complaint
andAnswer-in-Intervention (Rule 19, Sec. 3)
dismissed. We note that in its third-party
complaint, the petitioner alleged that Becthel
Intervention is a remedy by which a third party,
should be ordered to pay the balance of its not originally impleaded in the proceedings,
account, so that petitioner could pay the becomes a litigant thereinto enable him to
same to the respondent. However, contrary protect or preserve a right or interest that may
to its earlier plea for the admission of its be affected by those proceedings(Ongco vs.
third-party complaint against Becthel, the
Dalisay, G.R. No. 190810, July 18, 2012).

Bar Operations C ommissions 55

 Purple Notes
Remedial Law
Complaint-in-intervention is filed by an based solely on an actionable document(Rule 6,
intervenor who asserts a claim against either or Sec. 10).(n)
all of the original parties(Rule 19, Sec. 3).
3.F.1h.Extension of time to file an Answer
Answer-in-intervention is filed by an
intervenor if he unites with the defending party in A defendant may, for meritorious reasons, be
resisting a claim against the latter(Rule 19, Sec. 4). granted an additional period of not more than
thirty (30) calendar daysto file an Answer. A
Who may intervene in an action defendant is only allowed to file one (1) motion
for extension of time to file an answer.
Any person who:
A motion for extension to file any pleading, other
1. Has a legal interest in the matter in Litigation; than an answer, is prohibited and considered
2. Has a legal interest in the success of Either of mere scrap of paper. The court, however, may
the parties; allow any other pleading to be filed after the time
3. Has a legal interest against Both of them, or fiexed by these Rules (Rule 11, Sec. 11). (n)
4. Is so Situated as to be adversely affected by a
distribution or other disposition of property in
3.F.2. PLEADINGS ALLOWED IN SMALL
the custody of the court or of an officer
CLAIM CASES AND CASES COVERED BY THE
thereof(Rule 19, Sec. 1)
RULES ON SUMMARY PROCEDURE
Time to intervene
Pleadings allowed under the Rules on
Summary Procedure
The motion to intervene may be filed at any time
The only pleadings allowed to be filed are the
before rendition of judgment by the trial
Complaints, Compulsory Counterclaims and Cross
court.(Rule 19, Sec. 2)
Claims pleaded in the answer, and the answer
thereto. Also, all pleadings shall be
3.F.1g. Reply
verified(Revised Rules on Summary Procedure, Sec.
3).
Reply is the pleading-response of the plaintiff to
the defendant‘s answer, the office or function of
Pleadings allowed under the Rules of
which is to deny, or allege facts in denial or
Procedure for Small Claims Cases:
avoidance of new matters alleged in, or relating
1. Verified Statement of Claims (Form 1-SCC)
to, said actionable documents.
(Sec.6, A.M. No. 08-8-7-SC);
2. Verified Response(Sec.13, A.M. No. 08-8-7-SC);
A reply may be allowed only if the defending
3. Permissive Counterclaim(Sec.15, A.M. No. 08-8-
party attaches an actionable document to his or
7-SC).
her answer.
3.F.3. PARTS AND CONTENTS OF A
All new matters alleged in the answer shall be
PLEADING
deemed controverted. if the plaintiff wishes to
interpose any claims arising out of said matters
1. Caption
suchshall be set forth on the amended or
2. The Body
supplemental complaint(Rule 6, Sec. 10).(n)
a) Paragraphs
b) Headings
Note: A party cannot, in his reply, amend his
c) Relief
cause of action nor introduce new causes of
d) Date
action. Such shall be set forth in an amended or
3. Signature and address
supplemental complaint.
4. Verification
5. Certification against forum shopping
The defendant, on the otherhand, may file a
rejoinder in the event that an actionable
document is attached to the reply and same is

56 Center for Legal Education and Research


3.F.3a. Caption (Rule 7, Sec. 1)
The caption sets forth the following:
1) Name of the court;
2) Title of the action; and,
3) The docket number, if assigned.
Body (Rule 7, Sec. 2)
The body of the pleading sets forth the following:
1) Designation of the pleading;
2) Allegations of the party‘s claims or defenses;
3) Relief prayed for; and,
4) Date of the pleading.
Note: It is not the caption of the pleading but
the allegations therein which determine the
nature of the action. The court shall grant relief
warranted by the allegations and proof, even if
no such relief is prayed for (Solid Homes, Inc. vs.
Court of Appeals, G.R. No. 108451,April 11, 1997).
3.F.3b. Signature and address
Every pleading and other written submissions to
the court must be signed by the party or by the
counsel representing him or her. [Rule 7, Sec. 3
(a)]
Signature of Counsel constitutes a ceftificate
by him or her that she has:
1. Read the pleading and document; and
2. that to the best of his or her knowledge,
information, and belief, formed after an
inquiry reasonable under the circumstances:
a) It is not being presented for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation;
b) The claims, defenses, and other legal
contentions are warranted by existing law
or jurisprudence, or by a non-frivolous
argument for extending, modifying, or
reversing existing jurisprudence;
c) The factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after
availment of the modes of discovery under
these rules; and
Purple Notes
Remedial Law
d) The denials of factual contentions are
warranted on the evidence or, if
specifically so identified, are reasonably
based on belief or a lack of
information[Rule 7, Sec. 3 (b)] (n)
Effect when the court determines violation
of rule on signature
The court may on motion or motu proprio and
after notice and hearing, impose an appropriate
sanction or refer such violation to the proper
office for disciplinary action, on any attorney, law
firm, or party that violated the rule, or is
responsible for the violation[Rule 7, Sec.3 (c)].(n)
Nature of liability of the law firm for any
violation committed by its Partner,
Associate or Employee
General Rule:It shall be jointly and severally
liable and cannot pass on the monetary penalty
to the client.
Exception: When exceptional circumstances are
present.
The sanction may include, but shall not be
limited to: (NPR)
a) Non-monetary directive or sanction;
b) an order to pay a Penalty in court; or
c) if imposed on motion and warranted for
effective deterrence, an order directing
payment to the movant of part or all of the
Reasonable attorney‘s fees and other
expenses directly resulting from the violation.
The lawyer or lawfirmCANNOT pass on
themonetary penalty to the client[Rule 7, Sec.3
(c)].(n)
Consequence of an unsigned pleading:An
unsigned pleading produces no legal effect. Such
a pleading may be stricken out as sham and
false, and the action may proceed as though the
pleading has not been served.
Additional information to be placed after
the counsel’s name
1. Professional Tax Receipt (PTR) Number;
Bar Operations C ommissions 57
 Purple Notes
Remedial Law
2. IBP Official Receipt Number and date of issue
(Bar Matter No. 287, September 26, 2000);
3. Attorney‘s Roll Number (Bar Matter No. 1132,
April 2, 2003); and,
4. Number and date of MCLE Certificate of
Compliance/Exemption (Bar Matter No. 1922,
June 3, 2008).
 Q. Is anInformation a pleading thereby
requiring the lawyer to indicate his MCLE
Certificate of Compliance or Exemption?
A. Yes.Bar Matter No. 1922 requires
practicing members of the Bar to indicate in
all PLEADINGS filed before the courts or
quasi-judicial bodies the number and date of
issue of their MCLE Certificate of Compliance
or Exemption. Information is defined as an
accusation in writing charging a person with
an offense subscribed by the prosecutor and
filed with the court. From the foregoing
definition, is clear that an information is a
pleading. It is, for all intents and purposes,
considered an initiatory pleading because it is
a written statement which contains the cause
of action of a party (i.e., the State) against
the accused. Like a pleading, the Information
is also filed in court for appropriate
judgment. Undoubtedly, an information falls
squarely within the ambit of Bar Matter No.
1922 (People vs. Arrojado, G.R. No. 207041,
November 09, 2015).
Effect of failure to disclose the number and
date of issue of MCLE Certificate of
Compliance/Exemption
It subjects the counsel to appropriate penalty
and disciplinary action(OCA CIRCULAR NO. 79-
2014).
3.F.3c. Verification
Pleadings need not be under verified by an
affidavit except when otherwise specifically
required by law or a rule (Riano).
How pleadings are verified
By an affidavit of an affiant duly authorized to
sign said verification. The signature of the affiant
shall further serve as a certification of the
truthfulness of the allegations in the pleading.
58 Center for Legal Education and Research
In case of a representative, 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.
What should be alleged: (HEPA)
a. The pleading is not filed to Harass, cause
unnecessary delay, or needlessly increase the
cost of litigation;
b. The factual allegations therein have
Evidentiary support or, if specifically so
identified, will likewise have evidentiary
support after a reasonable opportunity for
discovery; and
c. The allegations in the pleading are true and
correct based on his or her Personal
knowledge, or based on Authentic documents.
The signature of the affiant shall further serve as
a certification of the truthfulness of the
allegations in the pleading (Rule 7, Sec. 6).(n)
 Q. What are the two modes of verification?
A.The veracity of the allegations in a
pleading may be affirmed based on either
one‘s own personal knowledge or on
authentic records, or both, as warranted.
The use of the preposition "or" connotes
that either source qualifies as a sufficient
basis for verification and, needless to state,
the concurrence of both sources is more
than sufficient. Bearing both a disjunctive
and conjunctive sense, this parallel legal
signification avoids a construction that will
exclude the combination of the alternatives
or bar the efficacy of any one of the
alternatives standing alone (Hun Hyung Park
vs. Eung Won Choi, G.R. No. 165496, February
12, 2007).
General Rule: Pleadings need not be under
oath, verified or accompanied by an affidavit.
Exception: When otherwise specifically required
by law or rule (Rule 7, Sec. 6).
Verification is required for the
following:(not exclusive)

1) Petition for review from the Regional Trial
Court to the Supreme Court raising only
questions of law [Rule 41, Sec. 2(c)];
2) Petition for Review From the Regional Trial
Courts to the Court of Appeals (Rule 42, Sec.
1);
3) Petition for Review Appeals From the Court
of Tax Appeals and Quasi-Judicial Agencies
to the Court of Appeals (Rule 43, Sec. 5);
4) Appeal by Certiorari to the Supreme
Court(Rule 45, Sec. 1);
5) Petition for Annulment of Judgments of Final
Orders and Resolutions(Rule 47, Sec. 4);
6) Application for Preliminary Injunction or
Temporary Restraining Order (Rule 58, Sec.
4);
7) Application for Appointment of a Receiver
(Rule 59, Sec. 1);
8) Application for Support Pendente Lite (Rule
61, Sec. 1);
9) Petition for CertiorariAgainst the Judgments
and Final Orders or Resolutions of the
Commission on Elections and the
Commission on Audit(Rule 64, Sec. 2);
10) Petition for Certiorari(Rule 65, Sec. 1);
11) Petition for Prohibition(Rule 65, Sec. 2);
12) Petition for Mandamus(Rule 65, Sec. 3);
13) Petition for Quo Warranto(Rule 66, Sec. 1);
14) Complaint for Expropriation (Rule 67, Sec. 1);
15) Pleadings Allowed in Forcible Entry and
Unlawful Detainer Proceedings (Rule 70, Sec.
4);
16) Petition for Indirect Contempt (Rule 71, Sec.
4);
17) Answer contesting the genuineness of an
actionable document;
18) Pleadings filed in civil cases under the 1991
Revised Rules on Summary Procedure(Sec.
3); and
19) Statement of Claim (Form 1-SCC) under The
Revised Rules of Procedure for Small Claims
Cases(Sec. 6);
Effect of absence of Verification
1. A pleading without the required verification
has no legal effect, BUT amending the
pleading with the required verification may
cure the same.
2. The absence of verification or the non-
compliance with the verification requirement
does not necessarily render the pleading
Purple Notes
Remedial Law
defective. It is only a formal and not a
jurisdictional requirement. The requirement is
a condition affecting only the form of the
pleading(Benguet Corporation vs. Cordillera
Caraballo Mission, Inc., G.R. No. 155343,
September 2, 2005)and non-compliance
therewith does not necessarily render it
fatally defective(Sarmiento vs. Zaratan, GR No.
167471, February 5, 2007).
3. It is settled that the verification of a pleading
is only a formal, not a jurisdictional
requirement intended to secure the
assurance that the matters alleged in a
pleading are true and correct. Therefore, the
courts may simply order the correction of the
pleadings oract on them and waive strict
compliance with the rules (Fernandez vs.
Villegas, G.R. No. 200191, August 20, 2014).
Signature on Verification and certification
against forum shopping
Any person who personally knew the facts may
sign the verification; BUT only the plaintiff or the
principal parties, not the counsel, may execute
the certification of non-forum shopping.
 Q. Who can sign the verification in cases
wherein the petitioner is a government
entity?
A. The petitioner in this case is the
Commission on Appointments, a government
entity created by the Constitution, and
headed by its Chairman. There was no need
for the Chairman himself to sign the
verification. Its representative, lawyer or any
person who personally knew the truth of the
facts alleged in the petition could sign the
verification. With regard, however, to the
certification of non-forum shopping, the
established rule is that it must be executed
by the plaintiff or any of the principal parties
and not by counsel. (Commission on
Appointments vs. Paler, G.R. No. 172623, March
3, 2010).
 Q. Is the verification of a pleading a formal
requirement?
A. Yes. Verification of a pleading is a formal,
not jurisdictional, requirement intended to
Bar Operations C ommissions 59
 Purple Notes
Remedial Law
secure the assurance that the matters
alleged in a pleading are true and correct.
Thus, the court may simply order the
correction of unverified pleadings or act on
them and waive strict compliance with the
rules. (Medado vs. Heirs of Late Antonio
Consing, G.R. No. 186720, February 8, 2012)
Signature rule for verification and
certification against forum shopping
General Rule: Verification and certification
against forum shopping must be signed by ALL
of the petitioners.
Exception: When there is substantial
compliance with the certification requirement, as
in the following:
a) Where the petitioners are immediate
relatives who share a common interest in
the property subject of the action; the fact
that only one of the petitioners executed the
verification or certification of forum shopping
will not deter the court from proceeding with
the action (Medado vs. Heirs of the Late Antonio
Consing, G.R. No. 186720, February 8, 2012).
b) When one who has ample knowledge to
swear to the truth of the allegations in the
complaint or petition signs the verification;
c) When matters alleged in the petition have
been made in good faith or are true and
correct; and,
d) Under reasonable or justificable
circumstances, as when all the petitioners
share a common interest and invoke a
common cause of action or defense (Basan
vs. Coca-cola Bottlers, G.R. No. 174365-66,
February 04, 2015).
 Q. When is there substantial compliance
with the verification/certification against
forum shopping requirement and when is it
allowed?
A. While the general rule is that the
verification and certification against forum
shopping must be signed by ALL the
petitioners in a case, the signature of ONLY
ONE of them, petitioner Basan in this case,
may be deemed substantial compliance with
the procedural requirement. Jurisprudence is
replete with rulings that the rule on
60 Center for Legal Education and Research
verification is deemed substantially complied
with when one who has ample knowledge to
swear to the truth of the allegations in the
complaint or petition signs the verification,
and when matters alleged in the petition
have been made in good faith or are true
and correct. Similarly, this Court has
consistently held that when under
reasonable or justifiable circumstances, as
when all the petitioners share a common
interest and invoke a common cause of
action or defense, the signature of only one
of them in the certification against forum
shopping substantially complies with the
certification requirement (Basan vs. Coca-cola
Bottlers, G.R. No. 174365-66, February 04,
2015).
3.F.3d.Certification against forum shopping
Forum Shopping
Forum shopping is the act of a party litigant
against whom an adverse judgment has been
rendered in one forum seeking and possibly
getting a favorable opinion in another forum,
other than by appeal or the special civil action of
certiorari, or the institution of two or more
actions or proceedings grounded on the same
cause or supposition that one or the other court
would make a favorable disposition. Forum
shopping happens when, in the two or more
pending cases, there is identity of parties,
identity of rights or causes of action, and identity
of reliefs sought (Alma Jose vs. Javellana, G.R. No.
158239, January 25, 2012).
Test in determining the existence of forum
shopping
Where the elements of litis pendentia are
present, and where a final judgment in one case
will amount to res judicata in the other, there is
forum shopping.
Elements of Litis Pendentia
a) Identity of the parties or at least such as to
represent the same interests in both actions;
b) Identity of rights asserted and relief prayed
for, the relief being founded on the same
acts; and,

c) Identity of the first two elements, such that
any judgment rendered in one action will,
regardless of which party is successful,
amount to res judicata in the other(Grace Park
Int‘l Corp. vs. Eastwest Banking Corp., G.R. No.
210606,July 27, 2016).
5. Q. Is there forum shopping where there are
distinct cause of action?
A. No. For forum shopping to exist, both
actions must involve the same transaction,
same essential facts and circumstances and
must raise identical causes of action, subject
matter and issues. Clearly, it does not exist
where different orders were questioned, two
distinct causes of action and issues were
raised, and two objectives were sought.
(Alma Jose vs. Javellana, G.R. No. 158239,
January 25, 2012)
Three ways to commit forum shopping:
 through litis pendentia — filing multiple
cases based on the same cause of action and
with the same prayer, the previous case not
having been resolved yet
 through res judicata — filing multiple cases
based on the same cause of action and the
same prayer, the previous case having been
finally resolved
 splitting of causes of action — filing
multiple cases based on the same cause of
action but with different prayers (Sps. Plaza vs.
Lustiva, G.R. No. 172909, March 5, 2014).
Litis pendentiais a situation wherein another
action is pending between same parties for the
same cause of action and the second action
becomes unnecessary and vexatious (Acap vs.
Court of Appeals, G.R. No. 118114, December 7,
1995).
Lis pendens, which literally means ―pending
suit‖, refers to the jurisdiction, power or control
which a court acquires over property involved in a
suit, pending the continuance of the action, and
until final judgment.
Founded upon public policy and necessity, lis
pendens is intended to keep the properties in
litigation within the power of the court until the
litigation is terminated, and to prevent the defeat
Purple Notes
Remedial Law
of the judgment or decree by subsequent
alienation. Its notice is an announcement to the
whole world that a particular property is in
litigation and serves as a warning that one who
acquires an interest over said property does so at
his own risk or that he gambles on the result of
the litigation over said property.
The filing of a notice of lis pendens has a two-
fold effect:
1. it keeps the subject matter of the litigation
within the power of the court until the entry
of the final judgment to prevent the defeat of
the final judgment by successive alienations;
and,
2. it binds a purchaser, bona fide or not, of the
land subject of the litigation to the judgment
or decree that the court will promulgate
subsequently (Biglang-awa vs. Philippine Trust
Company, G.R. No. 158998, March 28, 2008).
Grounds for cancelling notice of lis
pendens:
1. The annotation was for the purpose of
molesting the title of the adverse party; or,
2. The annotation is NOT necessary to protect
the title of the party who caused it to be
recorded.
Note: The notice of lis pendens may be
cancelled only upon order of the court, after
proper showing of the ground therefor (Rule 13,
Sec. 19).
Res judicatameans that a final judgment or
decree on the merits by a court of competent
jurisdiction is conclusive of the rights of the
parties or their privies, in all later suits and on all
points and matters determined in the previous
suit.
6. Q. What does ―res judicata‖ mean?
A. The term literally means a ―matter
adjudged, judicially acted upon, or settled by
judgment.‖ The principle bars a subsequent
suit involving the same parties, subject
matter, and cause of action. Public policy
requires that controversies must be settled
with finality at a given point in time (Sps.
Bar Operations C ommissions 61
 Purple Notes
Remedial Law
Dela Cruz vs. Joaquin, G.R. No. 162788, July 28,
2005).
Elements of Res Judicata: (FMJI-PSC)
1. the former judgment or order must be Final;
2. it must have been rendered on the Merits of
the controversy;
3. the court that rendered it must have had
Jurisdiction over the subject matter and the
parties; and,
4. There must be, between the first and the
second actions, Identity of:
a. Parties;
b. Subject matter; and
c. Cause of action (Sps. Dela Cruz vs. Joaquin,
G.R. No. 162788, July 28, 2005).
Two concepts of res judicata(Rule 39, Sec. 47)
1. Bar by prior or former judgment; and
2. Conclusiveness of judgment or preclusion of
issues or collateral estoppels
3. that if he should thereafter learn that the
same or similar action or claim has been filed
or is pending, he shall report that fact within
five (5) calendar days therefrom to the court
wherein his aforesaid complaint or initiatory
pleading has been filed (Rule 7, Sec. 5)
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. (n)
The following are considered initiatory
pleadings:
a) Original civil complaint;
b) Counterclaim;
c) Cross-claim;
d) Third (fourth, etc.) party complaint;
e) Complaint-in-intervention;and
f) Any other petition, or application wherein a
party asserts his claim for relief(A.M. No. 04-94,
February 8, 1994).

Basis of Res Judicata Non-compliance with the requirements for

Certification against Forum Shopping (Rule
1. Parties should not be permitted to litigate 7, Sec.5)
the same issue more than once.
2. When a right or fact has been judicially tried Ground Effect
and determined by a court of competent Failure to comply with Not curable by mere
jurisdiction, the judgment of the court, so the requirements under amendment.
Rule 7, Sec. 5.
long as it remains unreversed, should be
Gen. Rule: Cause for
conclusive upon the parties and those in the dismissal of the
privity with them in law or estates. case without prejudice

Certification against Forum Shopping Exception: When

otherwise provided,
It is a certification under oath in the complaint or upon motion and after
other initiatory pleading, or in a sworn hearing.
certification annexed thereto and simultaneously Submission of false Indirect contempt of
certification or non court, without prejudice
filed therewith:
compliance with any of to the corresponding
the undertakings under administrative and
1. that the plaintiff or principal party has not Rule 7, Sec. 5. criminal actions.
theretofore commenced any action or filed Acts of the party or his  Summary dismissal
any claim involving the same issues in any counsel clearly constitute with prejudice
court, tribunal or quasi-judicial agency and, willful and deliberate  Direct contempt
to the best of his knowledge, no such other forum shopping.  Administrative
action or claim is pending therein; sanctions.

2. that if there is such other pending action or
claim, a complete statement of the present
status thereof; and,
Note: The rule does not apply to cases that
arise from an initiatory or original action which
has been elevated by way of appeal or certiorari
to higher or appellate courts or authorities. This
is so not only because the issues in the appellate

62 Center for Legal Education and Research


courts necessarily differ from those in the lower
court, but also because the appealed cases are a
continuation of the original case and treated as
only one case(Eulogio vs. Bell Sr., G.R. No. 186322,
July 8, 2015).
Guidelines:
1. The certificate is to be executed by petitioner
and not by counsel;
2. The certificate is required only for complaints
and initiatory pleadings(Korea Technologies Co.
Ltd. vs. Lerma, G.R. No. 143581, January 7, 2008);
3. The certification is mandatory under Sec. 5 of
Rule 7 but not jurisdictional (Robert Dev‘t Corp.
vs. Quitain, G.R. No. 135042, September 23,
1999);
4. Certificate of non-forum shopping is not
required in a compulsory counterclaim (Santo
Tomas University Hospital vs. Surla, G.R. No.
129718, August 17, 1998);
5. All plaintiffs must sign the certification of non
forum shopping (Loquias vs. Office of the
Ombudsman, G.R. No. 139396, August 15, 2000).
Note: Every petition filed with the Supreme
Court or the CA must be accompanied by a
certificate of non-forum shopping.
 Administrative Circular No. 28-91, dated
February 8, 1994, issued by the Supreme
Court, requires that every petition filed with
the Supreme Court or the CA must be
accompanied by a certificate of non-forum
shopping. Later, Administrative Circular No.
04-94 was issued and made effective on
April 1, 1994. It expanded the certification
requirement to include cases filed in court
and in quasi-judicial agencies. The Court
adopted paragraphs (1) and (2) of
Administrative Circular No. 04-94 to become
Section 5, Rule 7 of the 1997 Rules of Civil
Procedure. Significantly, to curb the
malpractice of forum shopping, the rule
ordains that a violation thereof would
constitute contempt of court and be a cause
for the summary dismissal of the petition,
without prejudice to the taking of
appropriate action against the counsel of the
party concerned (Mandaue Galleon Trade, Inc.
vs. Isidto, G.R. No. 181051, July 5, 2010).
 Q. Does the rule on certificate against forum
Purple Notes
Remedial Law
shopping also apply in criminal cases?
A. No. Certificate of non-forum shopping is
not required or necessary in criminal cases
and distinct causes of action. The absence of
a provision on non-forum shopping in the
Revised Rules of Criminal Procedure, unlike in
the Rules on Civil Procedure, suggests as
much(Gilbert Guy vs. Asia United Bank, G.R. No.
174874, 4 Oct. 2007).
 Q. Does the rule on certificate against forum
shopping apply to labor cases?
A.No.Under the omnibus rules implementing
the Labor Code as amended by D.O. No. 9,
labor cases are supposed to be filed in the
Regional Office which has jurisdiction over
the principal office of the employer or where
the bargaining unit is principally situated. The
rules further provide that where two or more
petitions involving the same bargaining unit
are filed in one Regional Office, the same
shall be automatically consolidated. Hence,
the filing of multiple suits and the possibility
of conflicting decisions will rarely happen in
this proceeding and, if it does, will be easy to
discover.
Notably, under the Labor Code and the rules
pertaining to the form of the petition for
certification election, there is no requirement
for a certificate of non-forum shopping either
in D.O. No. 9, series of 1997 or in D.O. No.
40-03, series of 2003 which replaced the
former.
Considering the nature of a petition for
certification election and the rules governing
it, we therefore hold that the requirement for
a certificate of non-forum shopping is
inapplicable to such a petition (Samma-Likha
vs. Samma Corp. G.R. No. 16714113 March 2009).
 Q. When is a signature of counsel sufficient in
certification against forum shopping?
A. Certification against forum shopping is a
peculiar and personal responsibility of the party,
an assurance given to the court or other
tribunal that there are no other pending cases
involving basically the same parties, issues and
causes of action. It must be executed by the
Bar Operations C ommissions 63
 Purple Notes
Remedial Law
party-pleader, not by his counsel. If, however,
for reasonable or justifiable reasons, the party-
pleader is unable to sign, he must execute a
Special Power of Attorney (SPA) designating his
counsel of record to sign on his behalf(Uy vs. CA,
G.R. No. 173186, September 16, 2015).
Verification and Certification of non-forum
shopping by a Corporation
 Q. Who are the signatory/ies to the
verification and Certification against forum
shopping?
A.The requirement that petitioner should sign
the certificate of non-forum shopping applies
even to corporations, the Rules of Court
making no distinction between natural and
juridical persons. The signatory in the case
of the corporation should be ―a duly
authorized director or officer of the
corporation‖ who has knowledge of the
matter being certified. If, as in this case, the
petitioner is a corporation, a board resolution
authorizing a corporate officer to execute the
certification against forum-shopping is
necessary. A certification not signed by a
duly authorized person renders the petition
subject to dismissal. (Gonzales vs. Climax
Mining Ltd., G.R. No. 161957. February 28, 2005)
General Rule: Only individuals vested with
authority by a valid board resolution may sign the
certificate of non-forum shopping in behalf of a
corporation. Proof of said authority must be
attached; otherwise, the petition is subject to
dismissal (Asean Pacific Planners vs. City of Urdaneta,
G.R. No. 162525, September 23, 2008).
Exception: The following officers of a
corporation do NOT require a Board Resolution;
they can always sign the verification and CAFS
without said resolution:
1. Chairman of the Board of Directors
2. President of the corporation
3. General Manager
4. Acting Manager
5. Personnel Officer
6. Employment Specialist in a labor case
(Powerhouse Staff Builders vs. Rey, G.R. No.
190203, November 7, 2016).
64 Center for Legal Education and Research
Rationale: Corporate officers or representatives
of the corporation are in a position to verify the
truthfulness and correctness of the allegations in
the petition.
GUIDELINES for (i) non-compliance with
the requirements on; or, (ii) submission of
defective Verification and Certification
against Forum Shopping:
1) A distinction must be made between non-
compliance with the requirement on or
submission of defective verification, and non-
compliance with the requirement on or
submission of defective certification against
forum shopping.
2) As to verification, non-compliance therewith or
a defect therein does not necessarily render the
pleading fatally defective. The Court may order
its submission or correction or act on the
pleading if the attending circumstances are such
that strict compliance with the Rule may be
dispensed with in order that the ends of justice
may be served thereby.
3) Verification is deemed substantially complied
with when one who has ample knowledge to
swear to the truth of the allegations in the
complaint or petition signs the verification, and
when matters alleged in the petition have been
made in good faith or are true and correct.
4) As to certification against forum shopping,
non-compliance therewith or a defect therein,
unlike in verification, is generally not curable by
its subsequent submission or correction thereof,
unless there is a need to relax the Rule on the
ground of "substantial compliance" or presence
of "special circumstances or compelling reasons."
5) The certification against forum shopping must
be signed by all the plaintiffs or petitioners in a
case; otherwise, those who did not sign will be
dropped as parties to the case. Under reasonable
or justifiable circumstances, however, as when all
the plaintiffs or petitioners share a common
interest and invoke a common cause of action or
defense, the signature of only one of them in the
certification against forum shopping substantially
complies with the Rule.
 Purple Notes
Remedial Law
6) Finally, the certification against forum can be amendments.
shopping must be executed by the party-pleader, corrected by CAFS is more
not by his counsel. If, however, for reasonable or amendments. important than
justifiable reasons, the party-pleader is unable to Verification.
sign, he must execute a Special Power of
Attorney designating his counsel of record to sign 3.F.3e. Contents of a pleading
on his behalf (Vda. De Formoso vs. Philippine
National Bank, G.R. No. 154704, June 1, 2011). The pleadings shall now contain: (CBE-
NSE)

Verification vs. Certification against Forum 1. Claims and defenses of the party;
Shopping 2. Body (Sec. 2 Rule 7)
3. Evidence to be offered, specifically:
Verification Certification a. Names of witnesses who will be presented
against forum to prove a party‘s claim or defense
shopping b. Summary of the witnesses‘ intended
(CAFS) testimonies
Definition This is an This is an c. Documentary and object Evidence in
allegation that allegation that a support of the allegations contained in the
the affiant has party has not filed
pleading(Rule7, Sec. 6).(n)
read the a similar case
pleading and before any other
that the court, tribunal, Attach Judicial Affidavits of witnesses
allegations body or agency.
therein are The Judicial Affidavits of witnesses shall be
true and attached to the pleading and form an integral
correct of his part thereof. Only witnesses whose judicial
personal affidavits are attached to the pleading shall be
knowledge or presented by the parties during trial(Rule 7, Sec. 6
based on (b)).
authentic
records.
Effect of failure to attach Judicial Affidavit
Objectives To secure the To give assurance
assurance that to the court or of witness
the matters other tribunal that
alleged in a there are no other General Rule:The witness whose Judicial
pleading are pending cases Affidavit is not attached on the pleading shall not
true and involving basically be heard or admitted by court.
correct. the same parties,
issues and causes
Exception: if a party presents meritorious
of action.
reasons as basis for the admission of additional
Who The party The party himself.
should sign himself. Reason: The witnesses (Rule 7, Sec. 6).(n)
Reason: The counsel has no
counsel has no personal 3.F.4. Allegations in a Pleading
personal knowledge of the
knowledge of substantive 3.F.4a. Manner of MakingAllegations
the allegations.
substantive
Every pleading shall contain in a methodical and
allegations.
logical form, a plain, concise and direct statement
What is the Not Not jurisdictional;
effect of its jurisdictional; the lack of it will of the ultimate facts, including the evidence
absence the lack of it not divest the on which the party pleading relies for his claim or
will not divest court of defense, omitting the statement of mere
the court of jurisdiction. evidentiary facts (Rule 8,Sec. 1).
jurisdiction. It cannot be
However, it corrected by

Bar Operations C ommissions 65

 Purple Notes
Remedial Law
Ultimate Facts are the important and
substantial facts which either directly form the
basis of the plaintiff‘s primary right and duty or
directly make up the wrongful acts or omissions
of the defendant(Uy vs. CA, G.R. No. 173186,
September 16, 2015).
Evidentiary Facts are those which are
necessary to prove the ultimate fact, or which
furnish evidence of the existence of some other
facts. They are not proper as allegations in the
pleadings, as they may only result in confusing
the statement of the cause of action or the
defense.
When is a fact essential
When it cannot be stricken out without leaving
the statement of the cause of action or defense
insufficient(Zuniga-Santos vs. Santos-Gran, GR No.
197380, October 8, 2014).
What are NOT ultimate facts
 Evidentiary facts;
 Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect
inferences or conclusions from facts stated;
 The details of probative matter or particulars
of evidence, statements of law, inferences and
arguments.
Condition Precedent refers to matters which
must be complied with before a cause of action
arises.
In any pleading, a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient(Rule 8, Sec. 3).
Example of conditions precedent:
1. Exhaustion of Administrative Remedies;
2. Earnest efforts were undertaken to for the
reconciliation of the members of the same
family; and
3. Barangay Conciliation Proceeding
The phrase ―members of the same family‖
refers to:
a) Vertical line – no limitation
66 Center for Legal Education and Research
b) Collateral line – up to brothers and sisters only
(Art. 152, NCC)
General Rule: Every case must undergo
Barangay Conciliation Proceeding before it is filed
with the court.
Exceptions: Barangay Conciliation is NOT
necessary:
1. Government is a party;
2. A corporation is a party;
3. In cases of warrantless arrest;
4. In the availment of provisional remedies; and,
5. If the parties are not residents of the same
city or municipality UNLESS the barangays
where they live are adjacent to each
other(Abagatnan vs. Sps. Clarito, GR No. 211966,
August 7, 2017).
Fraud, mistake, or condition of the mind
In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must
be stated with particularity.
Malice, intent, knowledge, or other condition of
the mind of a person may be averred
generally(Rule 8, Sec. 5).
Facts that may be averred generally:
1. Conditionsprecedent(Rule 8, Sec. 3);
Note: There must still be an allegation that
the specific condition precedent has been
complied with; otherwise, the case will be
dismissed for lack of cause of action.
2. Malice, Intent, Knowledge, or other
Condition of the mind(MICK)(Rule 8, Sec. 5);
Reason: It is difficult to state the particulars
constituting these matters.
3. Judgments of domestic or foreign courts,
tribunals, boards, or officers;
Note:No need to show jurisdiction (Rule 8,
Sec. 6). An authenticated copy of the
judgment or decision shall be attached to
the pleading. (n)
4. Official document or act(Rule 8, Sec. 9).

Note: It is sufficient to aver that the
document was issued or the act was done in
compliance with law.
Facts that must be averred with
particularity: (CALF)
1. Capacity to sue or be sued;
2. Authority to sue or be sued in a defenses(La Naval Drug Corporation vs. CA, G.R. No.
representative capacity;
Note: A party desiring to raise an issue as to
the legal existence or capacity of any party to
sue or be sued in a representative capacity
shall do so by specific denial which shall
include supporting particulars within the
pleader‘s knowledge.
3. Legal existence of an organized association of
person that is made a party;
Note:If the plaintiff is a foreign corporation,
the following must be averred:
a) The specific circumstance that it is duly
licensed to do business in the Philippines;
or
b) That the transaction is an isolated one, if it
is not licensed to do business in the
Philippines(Olympia Business Machines Co. vs.
E. Razon, Inc., G.R. No. 75631, October 28,
1987).
4. In all averments of Fraud or mistake the
circumstances constituting fraud or mistake
must be stated with particularity;
Rule on Alternative Defenses
1. Two or more statements are made in the
alternative.
2. One of them, if made independently, would
be sufficient.
3. In such a case, the pleading is NOT made
insufficient by the insufficiency of one or
more of the alternative statements(Rule 8,
Sec. 2).
In the same manner that the plaintiff may assert
two or more causes of action in a court suit, a
defendant is likewise expressly allowed, under
Purple Notes
Remedial Law
Section 2, Rule 8, of the Rules of Court, to put up
his own defenses alternatively or even
hypothetically. Indeed, under Section 2, Rule 9,
of the Rules of Court, defenses and objections
not pleaded either in a motion to dismiss or in an
answer, except for the failure to state a cause of
action, are deemed waived. We take this to mean
that a defendant may, in fact, feel enjoined to set
up, along with his objection to the court's
jurisdiction over his person, all other possible
103200, August 31, 1994).
3.F.4b. Pleading an Actionable Document
Actionable document is a document or
instrument which is the basis of a cause of action
or defense, and not merely evidentiary thereon
(Araneta, Inc. vs. Lyric Film Exchange, Inc.,G.R. No.
37730, November 14, 1933).
Manner of pleading an actionable
document
Actionable documents are pleaded by alleging the
substance of such written instrument in the
pleading and attaching a copy thereof to the
pleading as an exhibit (Rule 8, Sec. 7).
How to contest an actionable document:
1) By specific denial under oath; AND
2) By setting forth what is claimed to be the
facts (Rule 8, Sec. 8).
General Rule: When an actionable document is
properly alleged, failure to specifically deny the
same under oath (verification) shall result to the
implied admission of the genuineness and due
execution of the document.
Exceptions:
a) When the adverse party is not a party to the
instrument; or
b) When the order for the inspection of the
document is refused (Rule 8, Sec. 8).
Note: In the above exceptions, SPECIFIC
DENIAL is STILL REQUIRED but it need NOT be
under oath. Otherwise, the general rule applies
that matters which were not specifically denied
are deemed admitted.
Bar Operations C ommissions 67
 Purple Notes
Remedial Law
A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant the dismissal of an
action. The content of the documents annexed
shall prevail.
―Due execution and genuineness‖ of a
document simply means:
1. that ―the party whose signature it bears
admits that he signed it or that it was signed
by another for him with his authority;
2. that at the time it was signed, it was in words
and figures exactly as set out in the pleading
of the party relying upon it;
3. that the document was delivered; and,
4. that any formal requisites required by law,
such as a seal, an acknowledgment, or
revenue stamp, which it lacks, are waived by
him(Citibank, N.A. vs. Sabeniano, G.R. No. 156132,
February 6, 2007).
 Q. What does genuiness and due execution
mean?
A. When the law makes use of the phrase
‗genuineness and due execution of the
instrument‘ it means nothing more than that
the instrument is not spurious, counterfeit, or
of different import on its face from the one
executed. It is equally true, however, that
execution can only refer to the actual making
and delivery, but it cannot involve other
matters without enlarging its meaning
beyond reason. The only object of the rule
was to enable a plaintiff to make out a prima
facie, not a conclusive case, and it cannot
preclude a defendant from introducing any
defense on the merits which does not
contradict the execution of the instrument
introduced in evidence (Benguet Exploration vs.
CA, G.R. No. 117434, February 9, 2001).
 Q. What does ―admission of the due
execution and genuineness of a document
mean?
A. It simply means that ―the party whose
signature it bears admits that he signed it or
that it was signed by another for him with his
authority, that at the time it was signed it
was in words and figures exactly as set out in
the pleading of the party relying on it, that
the document was delivered, and that any
68 Center for Legal Education and Research
formal requisites required by law, such as a
seal, an acknowledgment, or revenue stamp,
which it lacks, are waived by him(Benguet
Exploration Inc. vs. CA, G.R. No. 117434, February
9, 2001).
Note: Failure to deny the genuineness and due
execution of the document does not amount to a
waiver. It does not stop a party from
controverting such by evidence of:
a) Fraud
b) Mistake
c) Duress
d) Want/illegality of consideration
e) Compromise
f) Payment
g) Statute of limitations
h) Estoppel
i) Minority or imbecility
 Q. When is the requirement of an oath on
specific denial of actionable document not
necessary?
A.The requirement of oath does not apply
when (1) the adverse party does not appear
to be a party to the instrument or (2) when
compliance with an order for an inspection of
the proginal instrument is refused (Rule 8, Sec.
8; Fernando Medical Enterprises, Inc. vs. Wesleyan
University,781 SCRA 508, January 20, 2016).
Defenses waived by admission
1) Forgery of signature;
2) The party charged signed the instrument in
some other capacity;
3) Want of authority of an agent;
4) Corporation was not authorized under the
charter to sign the instrument;
5) Want of delivery; or,
6) The document as signed was not in words
and figures exactly set out in the
pleading(Go vs. BPI Savings Bank, GR No.
187487, June 29, 2015).
 Q. What is the effect of failure to specifically
deny under oath the genuineness and due
execution of an actionable document? How
may it be waived?
A.Failure to specifically deny under oath the
genuineness and due execution of an

actionable document generally implies an
admission of the same by the other party.
However, such implied admission is deemed
waived if the party asserting the same has
allowed the adverse party to present
evidence contrary to the contents of such
document without objection (Central Surety
vs. Hodges, G.R. No. L-28633, March 30, 1971).
3.F.4c. Specific Denials
How made:
1. Specify each material allegation of fact the
truth of which a party does not admit, and
whenever practicable, set forth the substance
of the matters upon which he relies to support
his denial (Specific Absolute Denial);
2. Specify so much of the averment as is true
and material, and deny the remainder
(Partial Specific Denial); or,
3. State defendant‘s lack of knowledge or
information sufficient to form a belief as to
the truth of a material averment made in the
complaint (Specific Denial by Disavowal
of Knowledge)(Rule 8, Sec. 10).
Note: This does not apply where the fact as to
which want of knowledge is asserted is, to the
knowledge of the court, so plain and necessarily
within the defendant‘s knowledge that his
averment of ignorance must be palpably untrue.
 Q. What are considered sham denials?
A. It is settled that denials based on lack of
knowledge or information or matters clearly
known to the pleader, or ought to be known
to it, or could have easily been known by it
are insufficient and constitute ineffective or
sham denials (Fernando Medical Enterprises,
Inc. vs. Wesleyan University, G.R. No. 207970,
January 20, 2016).
 Q. Does the use of word ―specifically‖ make
the denial a specific one?
A.No. A general denial does not become
specific by the use of the word ―specifically‖.
Neither does it become so by simple
expedient of coupling the same with a broad
Purple Notes
Remedial Law
conclusion of law that the allegations
contested are ―self-serving‖ or are intended
―to suit plaintiff‘s purposes‖ (Go Tong
Electrical Supply vs. BPI, G.R. No. 187487, June
29, 2015).
 Q. What is the purpose of requiring specific
denials?
A. The purpose of requiring respondents to
make a specific denial is to make them
disclose facts which will disprove allegations
of petitioner at the trial, together with the
matters they rely upon in support of such
denial. This is to prevent unnecessary
expenses and waste of time by compelling
both parties to lawy their cards oin the
table, thus reducing the controversy to its
true terms (Republic vs, Sandiganbayan, G.R.
No. 152154, July 15, 2003).
 Q. When is a denial considered not denial at
all?
A.When matters regarding which
respondents claim to have no knowledge or
information sufficient to form a belief are
plainly and necessarily within their
knowledge, their alleged ignorance or lack of
information will not be considered a specific
denial—a profession of ignorance about a
fact which is patently and necessarily within
the pleader‘s knowledge or means of
knowing is as ineffective as no denial at all;
The form of denial based on ignorance or
lack of information must be availed of with
sincerity and in good faith, and certainly not
for the purpose of confusing the adverse
party as to what allegations of the petition
are really being challenged, nor should it be
made for the purpose of delay(Republic of the
Philippines vs. Sandiganbayan, G.R. No. 152154,
July 15, 2003)
.
General Rule: Material averments asserting a
claim shall be deemed admitted when not
specifically denied(Rule 8, Sec. 11).
Note: Where the allegation is not specifically
denied, it shall be considered as having been
admitted by the party against whom such
allegations are directed against.
Exception: Matters NOT deemed admitted even
if NOT specifically denied.
Bar Operations C ommissions 69
 Purple Notes
Remedial Law
a) Unliquidated damages; (Rule 8, Sec. 11) Remedies available against denial of
b) Allegations immaterial to the cause of action; affirmative defenses
c) Allegations where no answer has been filed;
and, If affirmative defenses are denied they shall
d) Conclusions of law. notbe subject for a motion for reconsideration or
petition for certiorari, prohibition or mandamus,
3.F.4d. Affirmative Defenses but may beamong the matters to be raised on
appeal after a judgment on the merits (Rule 8,
A defendant shall raise his or her affirmative Section 12).(n)
defenses in his or her answer, which shall be
limited to the reasons below: Resolution of Affirmative Defenses

1. Those set forth under Rule 6, Sec. 5(b): General Rule: The court
(SPIDERS-OFF) shallmotuproprioresolve the affirmative defenses
within thirty (30) calendar days from the filing of
a. Statute of limitations; the answer [Rule 8, Sec. 12(c)].(n)
b. Payment;
c. Illegality;
Exception: For affirmative defenses in Section 5
d. Discharge in bankruptcy;
(b) of Rule 6, the court may conduct a summary
e. Estoppel;
hearing within fifteen (15) calendar days from
f. Release;
the filing of the answer. Such affirmative
g. Statute of frauds;
defenses shall be resolved by the court within
h. Any Other matter by way of confession
thirty (30) days from termination of summary
and avoidance;
hearing[Rule 8,Sec. 12 (d)].(n)
i. Former recovery; and
j. Fraud.
Affirmative defenses which may call for a
summary hearing
2. Lack of jurisdiction over the subject matter;
3. Litis pendentia;
Those set forth under Rule 6, Sec. 5(b):
4. Res judicata;
(SPIDERS-OFF)
5. That the court has no jurisdiction over the
person of the defending party;
a. Statute of limitations;
6. That venue is improperly laid;
b. Payment;
7. That the plaintiff has no legal capacity to sue
c. Illegality;
8. That the pleading asserting the claim states
d. Discharge in bankruptcy;
no cause of action; and
e. Estoppel;
9. That a condition precedent for filing the claim
f. Release;
has not been complied with(Rule 8,Sec. 12).(n)
g. Statute of frauds;
h. Any Other matter by way of confession and
Effects of failure to raise affirmative avoidance;
defense at the earliest opportunity i. Former recovery; and
j. Fraud.
General Rule: It shall constitute a waiver
thereof.  Q. When is such summary judgment proper?

Exception: The following may be raised at any
part of the proceeding, subject only to the rules
on estoppel and laches:
1. Lack of Jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations (Rule 9, Sec. 1).
A. This is after the court summarily hears
both parties with their respective proofs and
finds that there is no genuine issue between
them. Summary judgment is proper when
there is clearly no genuine issue as to any
material fact in the action. The theory of
summary judgment is that, although an

70 Center for Legal Education and Research


answer may on its face appear to tender
issues requiring trial, if it is demonstrated by
affidavits, depositions or admissions that
those issues are not genuine but sham or
fictitious.
Purple Notes
Remedial Law
may be barred by laches (Tijam vs.
Sibonghanoy, G.R. No. L- 21450, April 15, 1968).
A compulsory counterclaim or a cross-claim not
set up shall be barred (Rule 9, Sec.2).

A genuine issue is an issue of fact which
calls for the presentation of evidence as
distinguished from an issue which is fictitious
and contrived, set up in bad faith or patently
lacking in substance so as not to constitute a
genuine issue for trial(Republic vs.
Sandiganbayan, G.R. No. 152154, July 15, 2003).
Note: The presence of the said grounds
authorizes the court to motu proprio dismiss the
claims. These grounds must, however, appear
from the pleadings or the evidence on record.
Moreover, they may be raised at any stage of the
proceedings even for the first time on appeal,
EXCEPT estoppel by laches.

3.F.5. Effect of Failure to Plead Effect of failure of the defendant to file an

Default may occur when the defending party fails
to file his answer within the reglementary period.
It does not occur from the mere failure of the
defendant to attend the trial. The court cannot
motu proprio declare the defendant in default.
There must be a requisite motion so that the
defending party can be declared in default.
answer
General Rule: If the defending party fails to
answer within the time allowed therefor, the
court, upon motion, shall declare him in default.
Exceptions: In the following cases, no default
may be declared:

A declaration of default is not an admission of the a) Annulment of marriage;

truth or validity of the plaintiff‘s claim (Vlason
Enterprises Corp. vs. CA, G.R. No. 121662-64, July 06,
1999).
3.F.5a. Failure to Plead Defenses and
Objections
b) Declaration of nullity of marriage;
c) Legal separation;
d) Special civil actions of certiorari, prohibition,
and mandamus (instead, comment is filed);
or,
e) Summary procedure

General Rule: Defenses and objections not  Q. What is the sole ground for declaring a
pleaded either in a motion to dismiss or in the party in default?
answer are deemed waived.(Omnibus Motion
Rule) A. Failure to file a responsive pleading within
the reglementary period, and not failure to
Exceptions: appear at the hearing, is the SOLE GROUND
for an order of default (Sps. Salvador vs. Sps.
1. Lack of jurisdiction; Rabaja and Gonzales, G.R. No. 199990, February
2. Litis pendentia; 4, 2015).
3. Res judicata; and
4. Prescription of the action (Rule 9, Sec. 1) Residual Jurisdiction vs. Residual
Prerogatives
 Q. What is the effect of the above
exceptions? Residual Jurisdiction Residual Prerogatives
Governed by Rule 41, Governed by Rule 9, Sec.
A. The court shall dismiss the claim if any of Sec. 9. 1 and Rule 17, Sec. 3.
these grounds appears from the pleadings or Available at a stage in Does not require the
the evidence on record. These defenses may which the court is perfection of an appeal.
normally deemed to
be raised at any stage of the proceedings,
have lost jurisdiction
even for the first time on appeal EXCEPT that over the case or the
lack of jurisdiction over the subject matter subject matter involved

Bar Operations C ommissions 71

 Purple Notes
Remedial Law
in the appeal. 3.F.6 Declaration of Default

This stage is reached It is a procedural concept that occurs when the

upon the perfection of defending partyfailstofile his answer within the
the appeals by the
reglementary period. It does not occur from the
parties or upon the
approval of the records failure of the defendant to attend either the pre-
on appeal, but prior to trial or the trial(Rule 9, Sec.3).
the transmittal of the
original records or the 3.F.6a. When a declaration of default is
records on appeal. proper
Refers to the authority Refers to the authority of
of the trial court to: the trial court to motu 1. The court has validly acquired jurisdiction over
(O-PAPA) proprio dismiss a claim the person of the defending party either by
on the following grounds:
service of summons or voluntary appearance;
1. Order execution
pending appeal; 1. Lack of jurisdiction
2. issue Protective over the subject 2. The defending party failed to answer within
orders; matter; the time allowed therefor;
3. Approve 2. Res judicata;
compromises; 3. Litis pendentia; 3. There must be a motion to declare the
4. Permit appeals of 4. Prescription (Rule 9, defending party in default filed by the claiming
indigent litigants; Sec. 1); party;
and 5. Failure on the part of
5. Allow the the plaintiff, without
4. The defending party must be notified of the
withdrawal of the any justifiable cause:
appeal a. to appear on the
motion to declare him in default;
date of the
presentation of his Note:Alllitigiousmotions shall be servedby
evidence in chief personal service, accreditedprivate courier or
on the complaint; registeredmail, or electronic means so asto
b. to prosecute his ensure their receipt by theother party[Rule 15,
action for an Sec. 5(b)].(n)
unreasonable
length of time; or
5. There must be proof of the failure to file the
c. to comply with
these Rules or any
answer (Sablas vs. Sablas, G. R. No. 144568, July
order of the court 3, 2007); and,
(Rule 17, Sec. 3).
(Katon vs. Palanca, Jr., G.R. No. 151149, September 7, Note: Pursuant to the 2019 amendments,
2004.) hearing on a motion to declare defendant in
default is just discretionary. The court may,
3.F.5b. Failure to Plead a Compulsory in the exercise of its discretion, and if deemed
Counterclaim and Cross-claim necessary for its resolution, call a hearing on
the motion(Rule 15, Sec. 6).(n)
General Rule: A compulsory counterclaim or a
cross-claim not set up shall be barred (Rule 9, Sec.  Q. Can the court motu proprio declare a
2). party in default?

Exception: The pleader may, by leave of court,
set up the counterclaim or cross-claim by
amendement before judgment when the failure
to set up such claim is through
a) Oversight;
b) Inadvertence;
c) Excusable neglect; or
d) When justice requires (Rule 11, Sec. 10).
A. No.The trial court cannot motu proprio
declare a defendant in default as the rules
leave it up to the claiming party to protect
his or its interests. The trial court should
not, under any circumstances, act as counsel
of the claiming party (Sablas vs. Sablas, G. R.
No. 144568, July 3, 2007).

72 Center for Legal Education and Research

 Purple Notes
Note: If an amended complaint is filed
resulting in the withdrawal of the original
complaint, and defendant was declared in
default for failing to answer the original
complaint, the defendant is entitled to
answer the amended complaint as to which
he was not in default.
Order of default
 Issued by the court on plaintiff‘s motion and
at the start of the proceedings, for failure of
the defendant to file his responsive pleading
seasonably.
 The order of default renders the defending
party in default. The court shall either: a)
proceed to render judgment granting the
claimant such relief as his pleading may
warrant; or, b) in its discretion, shall require
the claimant to submit evidence. The
reception of evidence may be delegated to
the clerk of court (Rule 9, Sec. 3).
3.F.6b. Effect of an order of default
 Q. What is the effect of the order to a party
declared in default?
A. A party delared in default loses his
standing in court; he is only entitled to
receive notice of subsequent proceedings.
He cannot:
a) participate in the proceedings;
b) present his defense;
c) adduce evidence on his behalf;
d) cross-examine the witness of the
plaintiff; and,
e) object or refute evidence or motions filed
against him (Otero vs. Tan, G. R. No.
200134, August 15, 2012).
 Q. What may a party in default do?
 Q. Is relief automatic once the opposing party
A. The party in default may still be called on
as a witness, in behalf of the non-defaulting
defendant(Cavili vs. Florendo, G.R. No. L-73039,
October 09, 1987).
 Q. Is a party in default prohibited from filing
an appeal?
A. No.It is important to note that a party
declared in default is NOT barred from
Remedial Law
appealing from the judgment on the main
case, whether or not he had previously filed
a Motion to Set Aside Order of Default, and
regardless of the result of the latter and the
appeals therefrom. However, the appeal
should be based on the Decision‘s being
contrary to law or the evidence already
presented, and not on the alleged invalidity
of the default order (BDO vs. Transipek, G.R.
No. 181235, July 22, 2009).
Note: While the defendant can no longer take
part in the trial, he is nevertheless entitled to
notices of subsequent proceedings [Rule 9, Sec.
3(a)].
Judgment by default
Judgment rendered by the court on the basis of
the complaint or after receiving plaintiff‘s
evidence when the defendant was declared in
default(Rule 9, Sec. 3).
General Rule: There is no judgment by default
without an order of default.
Exception: When a party refuses to comply with
modes of discovery.
A judgment by default may be rendered in the
following cases despite an answer having been
filed:
1. If a disobedient party refuses to obey an
order requiring him to comply with the various
modes of discovery(Rule 29, Sec. 3).
2. If a party or officer or managing agent of a
party willfully fails to appear before the officer
who is to take his deposition or a party fails to
serve answers to interrogatories (Rule 29, Sec.
5).
is declared in default?
A. Complainants are not automatically entitled
to the relief prayed for once the defendants
are declared in default. Favorable relief can
only be granted after the court has
ascertained that the relief is warranted by the
evidence offered and the facts proven by the
presenting party (Gajudo vs. Traders Royal Bank,
G. R. No. 151098, 21 March 2006).
Bar Operations C ommissions 73
 Purple Notes
Remedial Law
3.F.6c. Relief from an order of default
The party in default may, after notice of the
order of default and before judgment, file a
Motion to Lift the Order of Default(BDO vs.
Transipek, G.R. No. 181235, July 22, 2009)and show:
 That the failure to answer was due to Fraud,
Accident, Mistake or Excusable
negligence(FAME); and
 That the party declared in default has a
meritorious defense.
Remedies of a party against an order of
default
a) A party declared in default may at any time
after notice thereof and before judgment, file
a motion under oath to set aside the order of
default upon proper showing that his or her
failure to answer was due to fraud, accident,
mistake or excusable negligence and that he
or she has a meritorious defense[Rule 9, Sec.
3(b)];
b) A motion for reconsideration of the order
denying the motion to set aside order of
default;
c) A petition for certiorari to declare the nullity of
a judgment by default is also available if the
trial court improperly declared a party in
default, or even if the trial court properly
declared a party in default, if grave abuse of
discretion attended such declaration(Crisologo
vs. Globe Telecom Inc., G.R. No. 167631,
December 16, 2005).
Note: If motion for reconsideration is denied,
there is no remedy left because such order is
interlocutory, UNLESS there is grave abuse of
discretion in which case the remedy is a Petition
for Certiorari(Rule 65).
Remedies of a party against a judgment by
default
a) Motion for Reconsideration;
b) Motion for New Trial;
c) If the motion is denied, appeal the judgment;
Note: The more appropriate and adequate
remedy is not ordinary appeal but the special
civil action of certiorari when the petitioners
were not given the opportunity to present
74 Center for Legal Education and Research
their evidence, and, therefore, nothing can be
reviewed on appeal except the self-serving
evidence adduced by the private respondent
during the ex partepresentation of the
evidence (Continental Leaf Tobacco (Phil.) Inc. vs.
CA, G.R. No. L-69243, November 22, 1985).
d) Petition for Relief from Judgment or Petition
for Relief from Denial of Appeal(Rule 38, Sec. 1
and 2);
e) If petition for relief is denied, file a Petition for
Annulment of Judgment (Rule 47).
Notes:
 Meritorious defense is a statement of the
evidence which defendant intends to present
if the motion is granted and which will
warrant a reasonable belief that the result
would probably be different if new trial is
granted(Velayo-Fong vs. Sps. Velayo, G.R. No.
155488, December 6, 2006).
 Where the defendant was improperly
declared in default and the order is not lifted,
he can elevate the matter by certiorari
without waiting for the judgment by default.
 If a default judgment was already rendered,
he can also resort immediately to certiorari
because his challenge is on the nullity of both
the order and the judgment by default.
 An order of default and an order denying a
motion for reconsideration of the default
order are NOT appealable as they are merely
interlocutory orders.
 An order denying a petition for relief, seeking
to set aside an order of default is final and
therefore, appealable.
 Q. Is the plaintiff still required to prove his
allegations despite order of default againt
defending party?
A. Yes.The plaintiff is not automatically
entitled to the relief prayed for. The law gives
the defendant some measure of protection as
the plaintiff must still prove the allegations in
the complaint (Saguid vs. Court of Appeals, G.R.
No. 150611, June 10, 2003).

Appeal from Judgment by default
The rule is that right to appeal from the
judgment by default is not lost and can be
done and can be done on grounds that:
1. the amount of the judgment is excessive;
2. is different in kind from that prayed for; or
3. that the plaintiff failed to prove the material
allegations of his complaint, or that the
decision is contrary to law.
Despite being burdened by the circumstances of
default, the petitioners may still use all other
remedies available to question not only the
judgment of default but also the judgment on
appeal before this Court. Those remedies
necessarily include an appeal by certiorari under
Rule 45 of the Rules of Court.(Farida Bitte vs. Sps.
Fred and Rosa Jonas, G.R. No. 212256, December 9,
2015)
Order of Default vs. Judgment by Default
Order of Default Judgment by Default
Issued by the court, on Rendered by the court
plaintiff‘s motion, for following a default order
failure of the or after it received, ex
defendant to file his parte, plaintiff‘s
responsive pleading evidence.
seasonably.
Interlocutory, not Final, appealable.
appealable.
Partial Default
There is partial default when there is a claim or
suit upon a common cause of action against
several defending parties and where at least one
of them files an answer[Rule 9, Sec. 3(c)].
3.F.6d. Effect of Partial Default
General Rule: The court shall try the case
against all upon the answers thus filed and
render judgment upon the evidence
presented[Rule 9, Sec. 3(c)].
Exception: Where the defense is personal to the
one who answered, in which case, it will not
benefit those who did not answer.
Note: If the co-defendant who filed his answer
died and the case was dismissed as to him, the
Purple Notes
Remedial Law
answer he filed does not inure to the benefit of
the defaulting defendants(Regalado).
3.F.6e. Extent of relief that may be granted
to claimant
Where the defendant is declared in default and
subsequently judgment is rendered against him,
such judgment shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages.
3.F.6f. Actions where default are not
allowed
In the following cases, no default may be
declared:(LANS3)
a) Legal separation;
b) Annulment of marriage;
c) Declaration of Nullity of marriage;
d) Special civil actions of certiorari, prohibition,
and mandamus (instead, comment is filed);
or,
e) Cases governed by Summary procedure;
f) Small claims cases;
3.F.7 Filing and Service of Pleadings
Filing is the act of submitting the pleading or
other paper to the court.
Service is the act of providing a party with a
copy of the pleading or any other court
submission(Rule 13, Sec. 2).
Service where several counsels appear for
one party
Where several counsels appear for one party,
such party shall be entitled to only one copy of
any pleading or paper served upon the lead
counsel if one is designated, or upon any one of
them ifthere is no designation of a lead
counsel(Rule 13, Sec. 2).
3.F.7a. Payment of Docket Fees
 Q. What is the purpose of a docket fee?
A. It is not simply the filing of the complaint
or appropriate initiatory pleading but the
payment of the prescribed docket fee that
Bar Operations C ommissions 75
 Purple Notes
Remedial Law
vests a trial court with jurisdiction over the particular case from their operation,
subject matter of the action (Proton Pilipinas whenever the purposes of justice require it
Corporation vs. Banque Nationale De Paris, G.R. (Villamor vs. CA, G. R. No. 136858, January 21,
No. 151242, June 15, 2005). 2004; Bautista vs. Unangst, G.R. No. 173002, July
4, 2008)
This is also true in case of appeals, the court
held ―as early as 1932, in Lazaro vs. 3.F.7b. Distinguish: Filing and Service of
Endencia, we have held that the payment of Pleadings
the full amount of the docket fees is an
indispensable step for the perfection of an Filing Service
appeal. The Court acquires jurisdiction over The act of the act of
submitting the providing a
any case only upon the payment of the
pleading or party with a
prescribed docket fees.‖ (Panay Railways Ins. Definition other paper to copy of the
vs. Development Corporation, G. R. No. 154061, the court (Rule pleading or any
January 25, 2012) 13, Sec. 2). other court
submission
 Q. What is the effect of non-payment of (Rule 13, Sec.
docket fee and if insufficient? 2).
1. Personal; 1. Personal
A. Nonpayment at the time of filing does not 2. Registered service;
automatically cause the dismissal of the case, Manner of mail; 2. Service by
as long as the fee is paid within the Filing/Modes 3. Accredited mail;
prescriptive or reglementary period (PAGCOR of Service courier; 3. Substituted
4. Electronic service;
vs. Lopez, 474 SCRA 76, October 25, 2005). If
means as 4. Electroning
the amount of docket fees is insufficient may be means and
considering the amount of the claim, the authorized facsimile;
party filing the case will be required to pay by the Court 5. Presumptive
the deficiency, but jurisdiction is not in places service.
automatically lost (Rivera vs. Del Rosario, G.R. where the
No. 144934, January 15, 2004). court is
electronically
 Q. What is the rule on docket fees on equipped.
appeal? Every judgment, resolution, order,
Papers pleading subsequent to the
A. The right to appeal is a purely statutory required to complaint, writted motion, notice,
right. Nonpayment of the appellate fee is a be filed and appearance, demand, offer of
valid ground for the dismissal of an appeal served judgment or similar papers shall
be filed with the court, and served
because the appellate court does not acquire
upon the parties affected thereby
jurisdiction over the subject matter of the (Rule 13, Sec. 4).
action without such payment. However, delay
in the payment of the docket fees confers
3.F.7c. Periods of Filing Pleadings
upon the court a discretionary power to
dismiss an appeal. For this reason, payment
of the full amount of the appellate court PLEADING PERIOD WITHIN
docket and other lawful fees within the WHICH TO FILE
Answer to the Within thirty (30)
reglementary period is mandatory and
complaint calendar days after
jurisdictional. Nevertheless, as this Court service of summons,
ruled, the strict application of the unless a different period
jurisdictional nature of the above rule on is fixed by the court (Rule
payment of appellate docket fees may be 11, Sec. 1).
mitigated under exceptional circumstances to
better serve the interest of justice. It is A defendant may, for
always within the power of this Court to meritorious reasons, be
suspend its own rules, or to except a granted an additional

76 Center for Legal Education and Research

 Purple Notes
Remedial Law
period of not more than complaint (Rule 11, Sec.
thirty (30) calendar days 5). Hence, answer must
to file an answer. A be filed within thirty (30)
defendant is only allowed calendar days after
to file one (1) motion for service of summons,
extension of time to file unless a different period
an answer (Rule 11, Sec. is fixed by the court.
11).(n) Answer to a Within fifteen (15)
complaint-in- calendar days from notice
Answer to an If the filing is a matter intervention of the order admitting the
amended complaint of right, within thirty complaint-in-intervention,
(30) calendar days after unless a different period
being served with a copy is fixed by the court(Rule
of the amended 19, Sec. 4).
complaint. Answer to a Within twenty (20)
supplemental calendar days from notice
If the filing is not a complaint of the order admitting the
matter of right, within same, unless a different
fifteen (15) calendar days period is fixed by the
from notice of the order court.
of admitting the same.
Note: The answer to the
Note: An answer earlier complaint shall serve as
filed may serve as the the answer to the
answer to the amended supplemental complaint if
complaint if no new no new or supplemental
answer is filed (Rule 11, answer is filed (Rule 11,
Sec. 2). Sec. 7).
Answer to a Within twenty (20) Reply within fifteen (15)
counterclaim or calendar days from calendar days from
cross-claim service (Rule 11, Sec. 4). service of the pleading
Answer of a If it has a resident responded to (Rule 11,
defendant foreign agent, Within thirty (30) Sec. 6).
private juridical calendar days after Answer to the Within ten (10) days from
entity service of summons to complaint under the service of summons (Sec.
such resident agent; Rules on Summary 5).
Procedure
If it has no resident
agent but it has an, A motion for extension to fileany pleading, other
agent, director, or than ananswer, is prohibited and considered a
trustee in the
mere scrap of paper. The court, however,
Philippines, Within thirty
(30) calendar days after mayallow any other pleading to befiled after the
service of summons to time fixed bytheseRules(Rule 11, Sec. 11).(n)
such agent, director, or
trustee Note: In cases where service of summons is
made through service upon defendant whose
If it has no resident identity or whereabouts are unkwown under Rule
agent, officer, agent, 14, Sec. 16 or through extraterritorial services
director or trustee in under Rule 14, Sec. 17, the defendant must file
the Philippines, within
his or her answer within a reasonable time, which
sixty (60) calendar days
after receipt of summons shall not be less than sixty (60) calendar days
by such entity (Rule 11, after notice.
Sec. 2).
3.F.7d. Manner of Filing
Answer to a third The time to answer shall
(fourth, etc.) -party be governed by the same General Rule: (ERAP)
complaint rule as the answer to the

Bar Operations C ommissions 77

 Purple Notes
Remedial Law
1. Submitting Personally the original thereof,
plainly indicated as such, to the court;
2. Sending them by Registered mail
3. Sending them by Accredited courier (n); or
4. Transmitting them by electronic mail or other
electronic means or other Electronic means as
may be authorized by the Court in places
where the court is electronically equipped
(Rule 13, Sec. 3). (n)
Exception:
The followingMUSTmust be served orfiled
personally or by registeredmail when allowed,
and shall NOT be served or
filedelectronically:(ISDAS)
1. Initiatory pleadings andinitial responsive
pleadings;
2. Subpoenae, protectionorders, and writs;
3. Documentsthat are not readily amenable
toelectronic scanning;
4. Appendices and exhibits tomotions; and
5. Sealed and confidentialdocuments or records.
Exception to the exception:
The foregoing may be be served or filed
electronically if express permission is granted by
the court(Rule 13, Sec. 14). (n)
Coverage of Rule 13
a) Pleadings;
b) Motions;
c) Other court submissions;
What is not covered by Rule 13?
Those for which a different mode of service is
prescribed (Rule 13, Sec. 1).
3.F.7e. Modes of Service
Personal Service
a) by personal delivery of a copy to the party or
to the party‘s counsel, of authorized
representative named in the appropriate
pleading or motion;
b) by leaving it in his or her office withhis or her
clerk, or with a person having charge thereof;
or
c) If no person is found in his orher office, or his
or her office isnot known, or he orshe has no
78 Center for Legal Education and Research
office, then by leavingthe copy, between the
hours ofeight in the morning and six inthe
evening, at the party's orcounsel's residence,
if known,with a person of sufficient ageand
discretion residing therein(Rule 13, Sec. 6).
Service by Registered Mail
It shall be done by:
1. depositing the copy in the post office;
2. in a sealed envelope;
3. plainly addressed to the party or his counsel
at his office, if known, or otherwise at his
residence, if known;
4. with postage fully paid; and
5. with the instruction to the postmaster to
return the mail to the sender after 10 calendar
days if not delivered (Rule 13, Sec. 7).
Note:Service by Ordinary Mail may be done only
if no registry service is available in the locality of
either the sender or the addressee (Rule 13, Sec.
7).
Service by electronic mail, facsimile
transmission, or other electronic means
Service by electronic means and facsimile shall
bemade if the party concerned consents to such
modes of service.
Service by electronic Service by facsimile
means
By sending an e-mail by facsimile shall be
to the party‘s or made by sending a
counsel‘s electronic facsimile copy to the
mail address, or party‘s or counsel‘s given
through other facsimile number.
electronic means of
transmission.
Requires prior agreement of the parties or express
permission granted by the court (Rule 13, Sec.
9).(n)
Service consistent with international
conventions made through methods which are
consistent with established international
conventions to which the Philippines is a
party(Rule 13, Sec. 5).(n)
Subsituted Service
If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be
 Purple Notes
Remedial Law
made by personal service or service by mail, the 13, Sec. 3).
office and place of residence of the party or his
or her counsel being unknown, service may be
made by delivering the copy to the clerk of court,
with proof of failure of both personal service and
service by mail. The service is complete at the
time of such delivery(Rule 13, Sec. 8). By Registered Mail Proof of filing:
 Registry receipt; and
 Affidavit of service of
Requisites for a valid substituted service:
the person who did
the mailing[Rule 13,
1. Service of pleadings and other papers cannot Sec. 16(b)].
be made by personal service or service by
mail; Date of filing: The date
2. The office and place of residence of the party of mailing as shown by
or his or her counsel being unknown; and the post office stamp on
3. Failure of both personal service and service by the envelope or the
registry receipt shall be
mail must be proved(Rule 13, Sec. 8).
considered as the date of
filing, payment, or
Presumptive service deposit in court (Rule 13,
Sec. 3).
There shall be presumptive notice to a party of a By an accredited Proof of filing:
court setting if such notice appears on the courier  affidavit of service of
records to have been mailed atleast twenty (20) the person who
calendardaysprior schedules date of hearing, if brought the pleading
addressee within same judicial region, or thirty or other document to
the service provider;
calendar days (30) if addressee outside judicial
and
region(Rule 13, Sec. 10).(n)  the courier‘s official
receipt and document
SUMMARY OF RULE 13: MANNER, PROOF tracking number
AND COMPLETENESS OF FILING AND [Rule 13, Sec.
SERVICE 16(c)].(n)

FILING Date of filing: The date

FILING – the act of submitting the pleading or
other paper to the court.
Personal Filing – Proof of filing:
submitting personally  Existence of the
the original thereof, pleading or paper in
plainly indicated as such the record of the
to the court case; or
 Written or stamped
acknowledgment of
its filing by the clerk
of court on a copy of
the pleading or paper,
if not in the record
but claimed to have
been filed personally
[Rule 13, Sec. 16(a)].
Date of filing: the clerk
of court shall endorse on
the pleading the date
and hour of filing (Rule
of mailing as shown by
the official receipt and
the tracking number
shall be considered as
the date of filing,
payment, or deposit in
court (Rule 13, Sec.
3).(n)
By electronic mail Proof of filing
General Rule:
 Affidavit of electronic
filing of the filing
party; and
 A paper copy of the
pleading or other
document
transmitted or a
written or stamped
acknowledgement of
its filing by the clerk
of court.

Bar Operations C ommissions 79

 Purple Notes
Remedial Law
Exception: having charge place and manner of
If the paper copy sent by thereof; or service (Rule 13, Sec.
electronic mail was also c. By leaving the copy 17).
filed by registered mail, between 8am and
the same shall be proven 6pm at the party‘s Completeness:
by: or counsel‘s Upon actual delivery
residence, if (Rule 13, Sec. 15).
 Registry receipt; and known, with a
 Affidavit of service of person of sufficient
the person who did age and discretion
the mailing [Rule 13, then residing
Sec. 16(d)].(n) therein (Rule 13,
Sec. 6).
Date of filing: The date By registered mail Proof of service:
of the electronic – done by:  Affidavit of the party
transmission shall a) depositing the copy serving with full
beconsidered as the date in the post office; statement of the date,
of filing (Rule 13, Sec. b) in a sealed place and manner of
3). envelope; service; and
c) plainly addressed  Registry receipt issued
Through other Proof of filing: to the party or his by the mailing office
authorized electronic  Affidavit of electronic counsel at his [Rule 13, Sec. 17(b)].
means filing of the filing office, if known, or
party; and otherwise at his Completeness:
 A copy of the residence, if a. actual receipt by the
electronic known; addressee; or
acknowledgement of d) with postage fully b. after (5) five days
its filing by the court paid; and from the date he
[Rule 13, Sec. e) with the instruction received the first
16(e)].(n) to the postmaster notice of the
to return the mail postmaster,
Date of filing: The date
to the sender after whichever is earlier
of the electronic
10 calendar days if (Rule 13, Sec. 15).
transmission shall
not delivered (Rule
beconsidered as the date
13, Sec. 7). Note: The registry return
of filing (Rule 13, Sec.
card shall be filed
3).
immediately upon its
Affidavit of Service – affidavit of the person receipt by the sender, or
who did the mailing with full statement of the in lieu thereof, the
date and place of depositing the mail in the post unclaimed letter together
office in a sealed envelope, addressed to the with the certified or
court, with postage fully pre-paid, and with sworn copy of the notice
instructions to the postmaster to return the mail given by the postmaster
to the sender after 10 days if not delivered. to the addressee.
By ordinary mail – Proof of service:
may be done only if no Affidavit of the person
SERVICE
registry service is mailing stating the facts
available in the locality showing compliance with
SERVICE – the act of providing a party with a copy of either the sender or Sec. 7 of Rule 13 [Rule
of the pleading or paper concerned (Rule 13, Sec. the addressee (Rule 13, Sec. 17(a)].
2). 13, Sec. 7).
Personal Service – Proof of service: Completeness:
a. By delivering  Written admission of Upon the expiration of 10
personally a copy the party served; days after mailing,
to the party or his  Official return of the UNLESS the court
counsel; server; or otherwise provides (Rule
b. By leaving it in his  Affidavit of the party 13, Sec. 15).
office with his clerk serving with full Substituted service Proof of service:
or with a person statement of the date, – by delivering a copy Written or stamped

80 Center for Legal Education and Research


to the clerk of court acknowledgment by the
with proof of failure of clerk of court
both personal service
and service by mail Completeness:
At the time of delivery
(Rule 13, Sec. 8).
By accredited Proof of service:
courier  Affidavit of service
executed by the
person who brought
the pleading or paper
to the service
provider; and
 The courier‘s official
receipt or document
tracking number [Rule
13, Sec. 17(c)].(n)
Completeness:
a. Actual receipt by
addressee;
b. After two (2) two
attempts to deliver by
the courier; or
c. Upon expiration of five
(5) days after the first
attemot to deliver,
whichever is earlier
(Rule 13, Sec. 15).(n)
By electronic mail, Proof of service:
facsimile, or other  Affidavit of service
authorized executed by the
electronic means person who sent the e-
mail, facsimile, or
other electronic
transmission; and
 Printed proof of
transmittal [Rule 13,
Sec. 17(d)].(n)
Completeness:
A. Electronic Service
General Rule: When the
electronic transmission of
the document, or when
available, at the time that
the electronic notification
of service of document is
sent.
Exception:Not effective
or complete if the party
serving document learns
that it did not reach the
addressee or person
served.
B. Facsimile
Purple Notes
Remedial Law
Upon receipt by the other
party , as indicated in the
facsimile transmission
printout (Rule 13, Sec.
15).(n)
Note: A party who changes his or her email
address or facsimile number while action is
pending must promptly file, within five (5)
calendar days from such change, a notice of such
change. Service shall be presumed valid unless
such party notifies the court of any change, as
aforementioned(Rule 13, Sec. 11).(n)
3.F.7f.Service of judgments, final orders, or
resolutions
Judgments, final orders or resolutions shall be
served either personally or by registered mail.
Upon ex parte motion of any party in the case, a
copy of the judgment, final order, or resolution
may be delivered by accredited courier at the
expense of such party. (n)
When a party summoned by publication has failed
to appear in the action, judgments, final orders or
resolutions against him shall be served upon him
also by publication at the expense of the prevailing
party (Rule 13, Sec. 13).
3.F.7g. Conventional service or filing of
orders, pleadings and other documents
Notwithstanding the foregoing, the following
orders, pleadings, and other documents must be
served or filed personally or by registered mail
when allowed, and shall not be served or filed
electronically, unless express permission is
granted by the Court:
1. Initiatory pleadings and initial responsive
pleadings, such as an answer;
2. Subpoena, protection orders, and writes;
3. Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning may, at the option of the
party filing such, be filed and served
conventionally; and
4. Sealed and confidential documents or
records(Rule 13, Sec. 14). (n)
Bar Operations C ommissions 81
 Purple Notes
Remedial Law
3.F.7h. When service deemed complete
1. Personal service- upon actual delivery;
2. Service by ordinary mail- complete upon
expiration of 10 calenday days after mailing
unless court provides otherwise provides;
3. Service by registered mail- upon actual
receipt by the addressee, or after five (5)
calendar days from date he or she received
the first notice by of the postmaster,
whichever is earlier;
4. Service by accredited courier- upon actual
receipt by addressee, or after at least two (2)
attempts to deliver by the courier service, or
upon expiration of five (5) calendar days after
the first attempt to deliver, whichever is
earlier;
5. Electronic Service- at time of electronic
transmission of the document, or when
available, at time electronic notification of
service pf the document is sent.
Note: Electronic service not complate if party
serving document learns that it did not reach
addressee or person to be served.
6. Service by facsimile- upon receipt by the
other party, as indicated in the facsiomile
transmission printout(Rule 13,Sec. 15).
3.F.7i. Proof or Filing and Service
1. Personal Filing/Service
a. Filing- proven by written or stamped
acknowledgement of its filing by the clerk
of court on a copy of the pleading or court
submission;
b. Service- written admission of the party
served, or the official return of the server,
or affidavit of party serving, containing a
statement of the date, place, and manner
of service.
2. Registered mail
a. Filing- proven by registry receipt and by
the affidavit of the person who mailed it.
b. Service-
82 Center for Legal Education and Research
i. Registered mail- affidavit of the
person mailing stating the facts
showing compliance with Setion 7 of
this rule and registry receipt issued by
the mailing office.
ii. Ordinary mail- affidavit of the
person mailing stating compliance
with Section 7 of this Rule.
3. AccreditedCourier Service
a. Filing- Affidavit of service of the person
who brought the pleading or other
document to the service provider, together
with the courier‘s official receipt and
document tracking number.
b. Service- Affidavit of service executed by
the person who brought the pleading or
paper to the service provider, together
with the courier‘s official receipt or
document tracking number.
4. Electronic Mail/Facsimile
a. Filing- Affidavit of electronic filing of the
filing party accompanied by a paper copy
of paper transmitted or written
acknowledgement of its filing by the clerk
of court. If facmsilie or other electronic
means, affidavit of electronic filing of filing
party with copy of electronic
acknowledgement of its filing by the court.
b. Service- an affidavit of service executed
by the person who sent the e-mail,
facsimile, or other electronic transmission,
together with a printed proof of
transmittal(Rule 13, Sec. 16 & 17).
3.F.8. Amendment (Rule 10)
Amendment is the correction of an error
committed in any process, pleading, or
proceeding at law, or in equity, and which is
done either as of course, or by the consent of the
parties, or upon motion to the court in which the
proceeding is pending.
Amended pleadings may be made by:
1. Adding or striking out an allegation or the
name of any party; or,
2. Correcting a mistake in the name of a party or
a mistaken or inadequate allegation or

description in any other respect (Rule 10, Sec.
1).
Purpose of Amendments of Pleadings
 Q. Is amendment of pleadings allowed?
A.Amendments of pleadings are allowed in
order that actual merits of the case may be
determined in the most expeditious and
inexpensive manner without regard to
technicalities, and that all other matters
included in the case may be determined in a
single proceeding, thereby avoiding multiplicity
of suits (Swagman Hotels and Travels, Inc. vs. CA,
G. R. No. 161135, April 8, 2005).
Two Kinds of Amendments both in Civil and
Criminal Cases
1. Amendment as a matter of right; and,
2. Amendment by leave of court
Other Set of Classification
1. Substantial Amendment - amendment
prejudicial to aparty.
2. Formal Amendment - not prejudicial to a
party because it is only amendment as to
theform.
3.F.8a. Amendment as a matter of right
(Rule 10, Sec. 5)
a) At any time before a responsive pleading is
served; or
b) In case of a Reply, at any time within 10
calendar days after it is served.
Amendment as a matter of right, by the terms of
Rule 10,Sec. 2, may be made only ONCE.
The remedy of a party is mandamus when the
court refuses to admit an amended pleading
when its exercise is a matter of right.
 Q.Which court is mandated to admit
amendment as a matter of right? The trial
court.
A. Rule 10, Sec. 2refers to an amendment
before the trial court, not to amendments
before the Court of Appeals. The Court of
Appeals is vested with jurisdiction to admit or
Purple Notes
Remedial Law
deny amended petitions filed before it(Navarro
vda. deTaroma vs. Taroma, G.R. NO. 160214,
December 16, 2005).
3.F.8b. Amendments by leave of court
When amendment is substantial, it may only be
done with leave of court. Such leave shallbe
refused if it appears to the court that the motion
was made with:
a) intent to delay confer jurisdiction on the
court; or
b) the pleading stated no cause of action from
the beginning which could be amended(Rule
10, Sec. 3).(n)
 Q. Can an order allowing amendment be
subject of certiorari?
A. NO. As a matter of judicial policy, courts
are impelled to treat motions for leave to file
amended pleadings with liberality. Hence, as
long as it does not appear that the motion for
leave was made with bad faith or with intent
to delay the proceedings, courts are justified
to grant leave and allow the filing of an
amended pleading. Once a court grants a
leave to file an amended pleading, the same
becomes binding and will not be disturbed on
appeal UNLESS it appears that the court had
abused its discretion (Yujuico vs. United
Resources Asset Management, G.R. No. 211113,
June 29, 2015).
Requisites for amendments by leave of
court
a) Motion filed in court;
b) Notice to the adverse party; and,
c) Opportunity to be heard afforded to the
adverse party.
Note: Even if the amendment is substantial, no
leave of court is required if made as a matter of
right.
Amendment for the second or subsequent time
must always be with leave of court. This is true
even if an answer is yet to be filed or even if the
case is yet to be set for trial.
Bar Operations C ommissions 83
 Purple Notes
Remedial Law
Amendment for the complaint is now allowed
even if an order for its dismissal has been issued
provided that the amended complaint is filed
before the dismissal order became final and
executory(Rodriguez Jr., vs. Augilar Sr., G.R. No.
159482, August 30, 2005).
Leave of court is required after a responsive
pleading is filed because the amendment of the
complaint is not only unfair to the defendant but
will cause unnecessary delay in the proceedings.
On the other hand, where no responsive pleading
has yet been served, no defenses would be
altered. The amendment of the pleading will not
then require leave of court.
 Q. Why should the courts be liberal in
allowing amendments?
A. The courts should be liberal in allowing
amendments to pleadings to avoid a
multiplicity of suits and in order that the real
controversies between the parties are
presented, their rights determined, and the
case decided on the merits without
unnecessary delay. This liberality is greatest
in the early stages of a lawsuit, especially in
this case where the amendment was made
before the trial of the case, thereby giving
the petitioners all the time allowed by law to
answer and to prepare for trial(Tiu vs.
Philippines Bank of Communications, G.R. No.
151932, August 19, 2009).
 Q. When is leave of court necessary for an
amendment?
A. Prior to the filing of an answer, the
plaintiff has the absolute right to amend the
complaint whether a new cause of action or
change in theory is introduced. The reason
for this rule is implied in the subsequent
Section 3 of Rule 10. Under this provision,
substantial amendment of the complaint is
not allowed without leave of court after an
answer has been served, because any
material change in the allegations contained
in the complaint could prejudice the rights of
the defendant who has already set up his
defense in the answer (Remington Industrial
vs. CA, G.R. No. 133657, May 29, 2002).
 Q. Is a motion for leave to file an amended
answer filed after a substantial lapse of time
automatically considered dilatory?
84 Center for Legal Education and Research
A. No. The mere fact that URAMI filed
its motion for leave years after the original
answer is also not reason enough in itself to
discredit the amended answer as a sheer
dilatory measure. Readily observable from
the established facts is that the perceived
delay between the filing of the motion for
leave and the filing of the original answer is
not purely attributable to URAMI. must be
remembered that some time after the
original answer was filed, we issued a
temporary restraining order. On this score,
we note that it only took URAMI a little over
three months after the lifting of the
temporary restraining order to replace its
previous counsel of record in Civil Case No.
70027 and to file its amended
answer(Yuijuico vs. United Assets Management,
Inc., G.R. No. 211113, June 29, 2015).
Note: Amendments are generally favored (LISAM
Enterprises, Inc. and Soriano vs. BDO, G.R. No.
143264, April 23, 2012).
3.F.8C. Formal Amendment
This can be made at any stage of the action in
order for the court to summarily correct any
defect in the designation of parties and other
clearly clerical or typographical errors, provided,
no prejudice is caused thereby to the adverse
party(Rule 10, Sec. 4).
No Amendments to conform to or authorize
presentation of evidence
When issues not raised by the pleadings are tried
with the express or implied consent of the
parties, they shall be treated in all respects as if
they had been raised in the pleadings.
No amendment such pleadings deemed amended
is necessary to conform to or authorize
presentation of evidence (Rule 10, Sec. 5).
Amendment that changes the cause of
action
General Rule: An amendment that changes the
cause or causes of action is now allowed (LISAM
Enterprises, Inc. and Soriano vs. BDO, G.R. No.
143264, April 23, 2012, citing Valenzuela vs. CA).

Exception: A complaint can never be amended
if it will alter the jurisdiction of the court. (Rule 10,
Sec. 3)
Exception to the Exception: If the jurisdiction
of the courts is concurrent.
Filing of amended pleading
When any pleading is amended, a new copy of
the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed(Rule 10, Sec. 7).
3.F.8d. Effect of amended pleading
An amended pleading: (SOW)
1. Supersedes the pleading that it amends.
2. Admissions in superseded pleadings may be
Offered in evidence against the pleader, and
3. claims and defenses therein not incorporated
in the amended pleading shall be deemed
Waived(Rule 10, Sec. 8).
 Q. What is the effect of the amendment on
admissions made in the original pleading?
A.The admissions made in the superseded
pleadings ceases to be a judicial admission.
Nonetheless, they may be used as
extrajudicial admission and in order to have
such effect, be formally offered as
evidence(Ching vs. Court of Appeals, G.R. No.
110844, April 27, 2000).
3.F.8e. Supplemental pleadings
A supplementary pleading is the one that sets
forth transactions, occurrences or events which
have happened since the date of the pleading
sought to be supplemented (Rule 10, Sec. 6).
How supplemental pleadings made
1. Motion of a party;
2. Reasonable notice to other party;
3. Supplemental pleadings shall set forth
transactions, occurences or events which have
happened since the date of the pleading
sought to be supplemented;
4. Adverse party may plead to the supplemental
pleading within ten (10) calendar days from
notice of order admitting the supplemental
pleading(Rule 10, Sec. 6).
Purple Notes
Remedial Law
Note: Motion to amend after aresponsive
pleading has beenfiled is a litigious motion [Rule
15, Sec. 5(6)]. Hence, the court may, in the
exercise of itsdiscretion, and if deemednecessary
for its resolution, calla hearing on said
motion(Rule 15, Sec. 6).
3.G. SUMMONS (Rule 14)
3.G.1. Nature and Purpose of Summons
Nature of Summons
Summons is a writ by which the defendant is
notified of the action brought against him.
Service of such writ is the means by which the
court acquires jurisdiction over his
person(Republic vs. Domingo, G.R. No. 175299,
September 14, 2011).
Purpose of Summons
Pursuant to a right to due process, summons is
to give notice to the defendant that an action has
been commenced against him.
 Q. What is the purpose of summons?
A. The purpose of summons is to notify the
defendent of the action against him and to
acquire jurisdiction over his person (Umandap
vs. Sabio, G.R. No. 140244, August 29, 2000).
When Issued
General rule: Upon filing of the complaint and
the payment of the requisite legal fees.
Exception: If the complaint is, on its face,
dismissible under Rule 9, Sec. 1, to wit:
1) Lack of jurisdiction;
2) Litis pendentia;
3) Res judicata; and
4) Prescription of the action (Rule 14, Sec. 1).
Where the defendant was declared in default on
the original complaint and the plaintiff
subsequently filed an amended complaint, the
amended complaint and summons should be
served upon the defendant with the same
formalities as the original complaint and
Bar Operations C ommissions 85
 Purple Notes
Remedial Law
summons (Atkins vs. Domingo, G.R. No. L-19565,
March 24, 1923).
3.G.1a. In Relation to Actions in Personam,
In Rem, and Quasi In Rem
Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide a
case where the action is in personam but NOT
where the action is in rem or quasi in rem(Biaco
vs. Philippine Countryside Rural Bank,, G.R. No.
161417, February 08, 2007).
A. Actions InPersonam
In an action in personam, jurisdiction over the
person of the defendant is necessary for the
court to validly try and decide a case(Riano, Civil
Procedure Vol. I, 2016 Ed., p. 77).
 Q. What is the purpose of summons in
Actions InPersonam?
A. In Actions InPersonam: The purpose of
summons is to notify the defendent of the
action against him and to acquire jurisdiction
over his person (Umandap vs. Sabio, G.R. No.
140244, August 29, 2000).
 Q. How is summons served to the defendant
in an action in personam?
A. In an action in personam, personal service
of summons or — if this is not possible and
he cannot be personally served —substituted
service (as provided in Rule 14, sections 7
and 8) is essential for the acquisition by the
court of jurisdiction over the person of a
defendant who does not voluntarily submit
himself to the authority of the court. If
defendant cannot be served with summons
because he is temporarily abroad, but
otherwise a Philippine resident, service of
summons may, by leave of court, be made
by publication. Otherwise stated, a resident
defendant in an action in personam, who
cannot be personally served with summons,
may be summoned either by means of
substituted service in accordance with Rule
14, section 8 or by publication as provided in
sections 17 and 18 of the same Rule
(Valmonte vs. CA, G.R. No. 108538, January 22,
1996).
86 Center for Legal Education and Research
 Q. What do the terms ―dwelling house‖ and
―residence‖ refer to?
A. Dwelling house or residence refers to the
place where the person named in the
summons is living at the time when the
service is made, even though he may be
temporarily out of the country at the time
(Domagas vs. Jensen, G.R. No. 158407, January
17, 2005).
B. Actions In Rem or Quasi In Rem:
In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction, provided
that the court acquires jurisdiction over the
res(Riano, Civil Procedure Vol.I, 2016 ed., p. 80).
 What is the purpose of extraterritorial service
of summons?
A. Service of summons in the manner
provided in section 17 (extraterritorial service
of summons) is not for the purpose of
vesting jurisdiction but for complying with the
requirements of fair play or due process, so
that a party will be informed of the pendency
of the action against him and the possibility
that property in the Philippines belonging to
him or in which he has an interest may be
subjected to a judgment in favor of the
plaintiff and he can thereby take steps to
protect his interest if he is so minded (PCI
Bank vs. Alejandro, G.R. No. 175587, September
21, 2007).
 Q. In an action in rem or quasi in rem, is it
necessary to acquire jurisdiction over the
person of the defendant?
A. If the action is in rem or quasi in rem,
jurisdiction over the person of the defendant
is not essential for giving the court
jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a
non-resident and he is not found in the
country, summons may be served
extraterritorially in accordance with Rule 14,
section [17](Valmonte vs. CA, G.R. No. 108538,
January 22, 1996).

3.G.1b. When Summons Are Issued
General rule: Upon filing of the complaint and
the payment of the requisite legal fees.
Exception: If the complaint is, on its face,
dismissible under Rule 9, Sec. 1, to wit:
1. Lack of jurisdiction;
2.Litis pendentia;
3. Res judicata; and
4. Prescription of the action (Rule 14, Sec. 1).
3.G.1c. Contents of Summons (Rule 14, Sec. 2)
It shall be directed to the defendant, signed by
the clerk of court under seal, and contain:
(a) The name of the court and the names of the
parties to the action;
(b) When authorized by the court upon ex parte
motion, an authorization for the plaintiff to
serve summons to the defendant;
(c) A direction that the defendant answer within
the time fixed by these Rules; and
(d) A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief applied
for. (Rule 14, Sec. 2)
Note: A copy of the complaint and order for
appointment of guardian ad litem, if any, shall be
attached to the original and each copy of the
summons(Rule 14, Sec. 2).
3.G.1d. Duty of Counsel
Duty of Counsel of Record
Where the summons is improperly served and a
lawyer makes a special appearance on behalf of
the defendant to, among others, question the
validity of service of summons, the counsel shall
be deputized by the court to serve summons on
his or her client (Rule 14, Sec. 13).(n)
3.G.1e. Return
Within thirty (30) calendar days from issuance of
summons by the clerk of court and receipt
thereof, the sheriff or process server, or person
authorized by the court, shall complete its
service.
Purple Notes
Remedial Law
Within five (5) calendar days from service of
summons, the server shall file with the court and
serve a copy of the return to the plaintiff‘s
counsel, personally, by registered mail, or by
electronic means authorized by the Rules.
Should substituted servicehave been effected, the
return shall state the following:
1. The impossibility of prompt personal service
within a period of thirty (30) calendar days
from issue and receipt of summons;
2. The date and time of the three (3) attempts
on at least (2) two different dates to cause
personal service and the details of the
inquiries made to locate the defendant
residing thereat; and
3. The name of the person at least eighteen (18)
years of age and of sufficient discretion
residing thereat, name of competent person in
charge of the defendant‘s office or regular
place of business, or name of the officer of
the homeowners‘ association or condominium
corporation or its chief security officer in
charge of the community or building where
the defendant may be found(Rule 14, Sec.
20).(n)
3.G.2. Voluntary Appearance
The defendant's voluntary appearance in the
action shall be equivalent to service of summons.
The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the
person of the defendant shall be deemed a
voluntary appearance(Rule 14, Sec. 23).(n)
General Rule: Any form of appearance in court,
by the defendant, by his agent authorized to do
so, or by attorney, is equivalent to service of
summons.
Exception: Where such appearance is precisely
to object to the jurisdiction of the court over the
person of the defendant.
Note:Pursuant to the 2019 amendments,
inclusion in a Motion to Dismiss of other grounds
aside from lack of jurisdiction over the person of
Bar Operations C ommissions 87
 Purple Notes
Remedial Law
the defendant shall be deemed a voluntary
appearance(Rule 14, Sec. 23). (n)
For the court to acquire jurisdiction over the
person of the defendant by voluntary
appearance, there must be an ―unequivocal
submission‖ (and intentional submission) of
himself to the jurisdiction of the court. So if it is
equivocal, then the court does not acquire
jurisdiction.
 Q. What other motions, when filed,
constitute ―voluntary appearance‖?
A. Assuming arguendo that the service of
summons was defective, such flaw was cured
and respondents are deemed to have
submitted themselves to the jurisdiction of
the trial court when they filed an Omnibus
Motion to Admit the Motion to Dismiss and
Answer with Counterclaim, an Answer with
Counterclaim, a Motion to Inhibit, and a
Motion for Reconsideration and Plea to Reset
Pre-trial. The filing of Motions seeking
affirmative relief -- to admit answer, for
additional time to file answer, for
reconsideration of a default judgment, and to
lift order of default with motion for
reconsideration -- are considered voluntary
submission to the jurisdiction of the court.
Having invoked the trial court‘s jurisdiction to
secure affirmative relief, respondents cannot
-- after failing to obtain the relief prayed for -
- repudiate the very same authority they
have invoked (Oaminal vs. Castillo, G.R. No.
152776, October 8, 2003).
Effects of Voluntary Appearance
 Defendant‘s voluntary appearance in the
action shall be equivalent to service of
summons.
 Whatever defect there was in the mode of
service is deemed waived and the court
acquires jurisdiction over the person of the
defendant by his voluntary submission
thereto(Orosa vs. CA, G.R. No. 118696,
September 3, 1996).
3.G.3. Who May Serve Summons (PODS)
1. Sheriff;
2. Sheriff‘s Deputy;
88 Center for Legal Education and Research
3. Other proper court officer; and
4. In case of failure of service of summons by
them (1 and 2), the court may authorize the
Plaintiff – to serve the summons–together
with the sheriff (Rule 14, Sec. 3).
Service of Summons by the Plaintiff
1. In case of failure of service of summons by
(a) the sheriff, and (b) the sheriff‘s deputy or
other proper court officer, the court may
authorize the plaintiff- to serve the summons
- together with the sheriff (Rule 14, Sec. 3).
2. The plaintiff may serve summons to the
defendant, when authorized by the court upon
ex parte motion (Rule 14, Sec. 2)
3. In cases where summons is to be served
outside the judicial region of the court where
the case is pending, the plaintiff shall be
authorized to cause the service of summons.
(Rule 14, Sec. 3)
4. If the plaintiff is a juridical entity:
a. It shall notify the court, in writing, and
name its authorized representative therein,
b. It shall attach a board resolution or
secretary‘s certificate thereto, as the case
may be, stating that such representative is
duly authorized to serve the summons on
behalf of the plaintiff (Rule 14, Sec. 3)
5. If the plaintiff misrepresents that the
defendant was served summons, and it is
later proved that no summons was
served:(DNS)
a. The case shall be Dismissed with
prejudice;
b. the proceedings shall be Nullified; and
c. the plaintiff shall be meted appropriate
Sanctions(Rule 14, Sec. 3).
6. If summons is returned without being served
on any or all the defendants, the court shall
order the plaintiff to cause the service of
summons by other means available under the
Rules(Rule 14, Sec. 3).
 Purple Notes
Remedial Law
7. Failure to comply with the order shall cause cured. A case should not be dismissed simply
the dismissal of the initiatory pleading without because an original summons was wrongfully
prejudice(Rule 14, Sec. 3). served. It should be difficult to conceive, for
example, that when a defendant personally
Misrepresentation Failure to comply with appears before a Court complaining that he
(DNS) the order had not been validly summoned, that the case
a. The case shall be The initiatory pleading against him should be dismissed. An alias
Dismissed with shall be dismissed without summons can be actually served on said
prejudice; prejudice.
defendant (BPI vs. Sps. Santiago, G.R. No.
b. the proceedings
169116, March 28, 2007).
shall be Nullified;
and 3.G.4. Personal Service
c. the plaintiff shall
be meted
Service In Person On Defendant
appropriate
Sanctions
Whenever practicable, the summons shall be
Validity of Summons and Issuance of Alias served by:
Summons
1. Handing a copy thereof to the defendant in
Validity of Summons person and informing the defendant that he or
she is being served; or
General Rule:Summons shall remain valid until 2. If he or she refuses to receive and sign for it,
duly served. by leaving the summons within the view and
in the presence of the defendant (Rule 14, Sec.
5).
Exception: If the summons is recalled by the
court (Rule 14, Sec. 4).
Note: Under the present rule, Rule 14, Sec. 5
refers to the mode of service therein as ―Service
Alias Summons
In Person On Defendant‖ not ―personal service‖.
In case of loss or destruction of summons, the
3.G.5. Substituted Service
court may, upon motion, issue an alias
summons(Rule 14, Sec. 4).
If, for justifiable causes, the defendant cannot be
served personally after at least three (3)
Alias Summons is issued when the first summons
attempts on two (2) different dates, service may
has not produced its effect because it is defective
be effected:
in form or manner of service, and when issued,
supersedes the first. It refers to a summons
a) By leaving copies of the summons at the
other than the original summons.
defendant's residence to a person at least
eighteen (18) years of age and of sufficient
When Alias Summons Is Issued: (DLR)
discretion residing therein;
a) When the summons is Destroyed;
Note:Dwelling house or residence refers to
b) When the summons is Lost; or
the place where the person named in the
c) Whe the summons has been Recalled by the
summons is living at the time when the
court which issued the same.
service is made, even though he may be
temporarily out of the country at the time
 Q. What is the effect of issuance and proper
(Domagas vs. Jensen, G.R. No. 158407, January
service of alias summons?
17, 2005).
A. However, upon the issuance and the
proper service of new summons, whatever b) By leaving copies of the summons at the
defect attended the service of the original defendant's office or regular place of business
summons, was promptly and accordingly with some competent person in charge
thereof. A competent person includes, but is

Bar Operations C ommissions 89

 Purple Notes
Remedial Law
not limited to, one who customarily receives
correspondences for the defendant;
Notes: The terms ―office‖ or ―regular place of
business‖ refer to the office or place of
business of defendant at the time of
service(Keister vs. Navarro, G.R. No. L-29067, May
31, 1977).
To be a ―competent‖ person to receive the
summons means that he should be "duly
qualified" and "having sufficient capacity,
ability or authority." Further, The rule
presupposes that such a relation of confidence
exists between the person with whom the
copy is left and the defendant and, therefore,
assumes that such person will deliver the
process to defendant or in some way give him
notice thereof."(Sandoval II vs. HRET, G.R. No.
149380, July 3, 2002)
A security guard is not a competent person in
charge at the defendant‘s office in case of
substituted service of summons (Ong vs. Co,
G.R. No. 206653, February 25, 2015).
c) By leaving copies of the summons, if refused
entry upon making his or her authority and
purpose known, with any of the officers of the
homeowners‘ association or condominium
corporation, or its chief security officer in
charge of the community or the building
where the defendant may be found (n); and
d) By sending an electronic mail to the
defendant‘s electronic mail address, if allowed
by the court(Rule 14, Sec. 6).(n)
Note: Personal service of summons is preferred
over substituted service. Resort to substituted
service is only warranted when the impossibility
of personal service is clearly apparent(Carson
Realty & Management Corporation vs. Red Robin
Security Agency, G.R. No. 225035, February 8, 2017).
The Return shall state the following:
1. The impossibility of service of summons within
a a period of thirty (30) calendar days from
issue and receipt of summons;
2. The date and time of the three (3) attempts
on at least (2) two different dates to
causepersonal service
90 Center for Legal Education and Research
3. The details of the inquiries made to locate the
defendant; and
4. The name of the person at least eighteen (18)
years of age and of sufficient discretion
residing thereat, name of competent person in
charge of the defendant's office or regular
place of business, or name of the officer of
the homeowners'association or condominium
corporation or its chief security officer in
charge of the community or building where
the defendant may be found(Rule 14, Sec. 20).
 Q. What is the effect of failure to comply
with the requirements of substituted service?
A. The failure to comply faithfully, strictly and
fully with all the foregoing requirements of
substituted service renders the service of
summons ineffective. This is necessary
because substituted service is in derogation
of the usual method of service (Sps. Jose vs.
SpsBoyon, G.R. No. 147369, October 23, 2003).
 Q. In cases of substituted service of
summons, who may be competent to receive
such summons?
A.(1). It is to be noted that in case of
substituted service, there should be a report
indicating that the person who received the
summons in the defendant's behalf was one
with whom the defendant had a relation of
confidence, ensuring that the latter would
actually receive the summons (Chu vs. Mach
Asia Trading, G.R. No. 184333, April 1, 2013).
A.(2). Effort to serve the said summons
personally upon said defendants were made,
but the same were ineffectual and unavailing
on the ground that per information of a
person of sufficient age and discretion
working therein who signed to acknowledge
receipt , said defendant is always roving
outside and gathering news, thus, substituted
service was applied (Macasaet vs. Co, G.R. No.
156759, June 05, 2013).
3.G.6. Constructive Service
General Rule:Summons by publication is
available only in actions in rem or quasi in rem. It
is not available as a means of acquiring
jurisdiction over the person of the defendant in
an action in personam.

Exception: Summons may, by leave of court, be
served by publication against a resident in an
action in personamunder the conditions set forth
in the following rules:
a) When the defendant is designated as an
unknown owner, or the like;
b) When the identity or whereabouts of the
defendant are unknown and cannot be
ascertained by diligent inquiry, within ninety
(90) calendar days from the commencement
of the action (Rule 14, Sec. 16); or
c) When the defendant is a resident temporarily
out of the Philippines (Rule 14, Sec. 18).
Note: The present rule expressly states that it
applies ―in any action where the defendant is
designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry.‖ Thus,
it now applies to any action, whether in
personam, in rem or quasi in rem(Santos vs. PNOC,
G.R. No. 170943, September 23, 2008).
Conversion of an action in personam into
an action in rem
In an action in personam, summons must be
served by personal or substituted service,
otherwise the court will not acquire jurisdiction
over the defendant.In case the defendant does
not reside and is not found in the Philippines
(and hence personal and substituted service
cannot be effected), the remedy of the plaintiff in
order for the court to acquire jurisdiction to try
the case is to convert the action into a
proceeding in rem or quasi in rem by attaching
the property of the defendant.
Thus, in order to acquire jurisdiction in actions in
personam where defendant resides out of and is
not found in the Philippines, it becomes a matter
of course for the court to convert the action into
a proceedinginrem or quasi in rem by attaching
the defendant‘s property. The service of
summons in this case (which may be by
publication coupled with the sending by
registered mail of the copy of the summons and
the court order to the last known address of the
defendant), is no longer for the purpose of
acquiring jurisdiction but for compliance with the
requirements of due process(PCIB vs. Alejandro,
G.R. No. 175587, September 21, 2007).
Purple Notes
Remedial Law
Against a non-resident, jurisdiction is acquired
over the person of the defendant by service upon
his person while said defendant is within the
Philippines. As once held, when the defendant is
a non-resident, personal service of summons in
the state is essential to the acquisition of
jurisdiction over him. This is, in fact, the only way
of acquiring jurisdiction over his person if he does
not voluntarily appear in the action.
Summons by publication against a non-resident
in an action in personam is not a proper mode of
service(Velayo-Fong vs. Sps. Velayo, G.R. No. 155488,
December 6, 2006).
 Q. What is the purpose of ―publication‖?
A. Publication is notice to the whole world
that the proceeding has for its object to bar
indefinitely all who might be minded to make
an objection of any sort against the right
sought to be established. It is the publication
of such notice that brings the whole world as
a party in the case and vests the court with
jurisdiction to hear and decide it (Alaban vs.
CA, GR 156021, September 23, 2005).
 Q. How is service of summons by
―publication‖ done?
A. As a rule, service of summons by
publication must be complemented by service
of summons by registered mail to the
defendant‘s last known address. This
complementary service is evidenced by an
affidavit ―showing the deposit of a copy of
the summons and order for publication in the
post office, with postage prepaid, directed to
the defendant by registered mail to his last
known address.‖(Santos vs. PNOC, G.R. No.
170943, September 23, 2008)
3.G.6a. Service Upon A Defendant Where
His Identity Is Unknown Or Where His
Whereabouts Are Unknown
In any action, whether in personam, in rem or
quasi in rem, service of summons by
publicationmay, by leave of court, be beeffected
when:
a) The defendant is designated as an unknown
owner, or the like; or
Bar Operations C ommissions 91
 Purple Notes
Remedial Law
b) Whenever his or her whereabouts are
unknown and cannot be ascertained by
diligent inquiry, within ninety (90) calendar
days from the commencement of the action.
Manner of publication: in a newspaper of
general circulation and in such places and for
such time as the court may order.
Note:Anyorder granting such leave shall specify
a reasonable time, which shall not be less than
sixty (60) calendar days after notice, within which
the defendant must answer(Rule 14, Sec. 16).(n)
3.G.6b. Service Upon Residents Temporarily
Outside of the Philippines
This rule applies when an action, whether in
personam, in rem or quasi in rem, is commenced
against a defendant who ordinarily resides within
the Philippines, but who is temporarily out of
it(Rule 14, Sec. 17).
Manner of service:
Service may, by leave of court, be also effected
out of the Philippines, as under the rules in
extraterritorial service, to wit: (PIPO)
a. By Personal service as under Rule 14, Sec.6;
b. As provided for in International conventions to
which the Philippines is a party; or
c. By Publication in a newspaper of general
circulation in such places and for such time as
the court may order, in which case a copy of
the summons and order of the court shall be
sent by registered mail to the last known
address of the defendant, OR
d. In any Other manner the court may deem
sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) calendar days after notice, within
which the defendant must answer (Rule 14, Sec.
17).
Reason: Even if the person is abroad, he has a
residence in the Philippines or a place of business
and surely, because of his absence, he cannot be
served in person within a reasonable time.
92 Center for Legal Education and Research
In the case of Montefalcon vs. Vasquez (2008)
substituted service of summons is the normal
mode of service against a temporarily absent
resident.
 Q. How is summons served to a resident
who is ―temporarily absent‖?
A. The normal method of service of
summons on one temporarily absent is by
substituted service because personal service
abroad and service by publication are not
ordinary means of summoning defendants.
Summons in a suit in personam against a
temporarily absent resident may be by
substituted service as domiciliaries of a State
are always amenable to suits in personam
therein. A man temporarily absent from this
country leaves a definite place of residence,
a dwelling where he lives, a local base, so to
speak, to which any inquiry about him may
be directed and where he is bound to return.
Where one temporarily absents himself, he
leaves his affairs in the hands of one who
may be reasonably expected to act in his
place and stead; to do all that is necessary
to protect his interests; and to communicate
with him from time to time any incident of
importance that may affect him or his
business or his affairs. It is usual for such a
man to leave at his home or with his
business associates information as to where
he may be contacted in the event a question
that affects him crops up. If he does not do
what is expected of him, and a case comes
up in court against him, he cannot in justice
raise his voice and say that he is not subject
to the processes of our courts. He cannot
stop a suit from being filed against him upon
a claim that he cannot be summoned at his
dwelling house or residence or his office or
regular place of business (Montefalcon vs.
Vasquez, G.R. No. 165016, June 17, 2008).
3.G.7. Extraterritorial Service, When
Allowed
Extraterritorial Service applies when:
1. The defendant does not reside and is not
found in the Philippines, and
2. The action:(AREA)
 Purple Notes
Remedial Law
a) Affects the personal status of the plaintiff the plaintiff Philippines:
or (Extraterritoria or (PIPO)
b) Relates to, or the subject of which is, l Service) b) Relates to,
property within the Philippines, in which or the a) By Personal
subject of service as
the defendant has or claims a lien or
which is, under
interest, actual or contingent, or property Section 6;
c) The relief demanded consists, wholly or in within the or
part, in Excluding the defendant from any Philippines, b) As provided
interest therein, or in which for in
d) The property of the defendant has been the Internation
Attached within the Philippines defendant al
has or conventions
Manner of service: claims a to which
lien or the
interest, Philippines
Service may, by leave of court, be effectedout of actual or is a party;
the Philippines:(PIPO) contingent, or
or c) By
a) By Personal service as under Section 6; or c) The relief Publication
b) As provided for in International conventions to demanded inanewspap
which the Philippines is a party; or consists, er of
c) By Publication in a newspaper of general wholly or in general
circulation in such places and for such time as part, in circulation
Excluding in such
the court may order, in which case a copy of
the places and
the summons and order of the court shall be defendant for such
sent by registered mail to the last known from any time as the
address of the defendant, or interest court may
d) In any Other manner the court may deem therein, or order, in
sufficient. d) The which case
property of a copy of
Any order granting such leave shall specify a the the
reasonable time, which shall not be less than defendant summons
has been and order
sixty (60) calendar days after notice, within
Attached of the court
which the defendant must answer. (Rule 14, Sec. within the shall be
17) Philippines sent by
Manner of Service registered
mail to the
Defendant Action Manner of last known
Service address of
Defendant In any action, With leave of the
whose identity whether in court, by defendant,
or personam, in publication in or
whereabouts rem or quasi in a newspaper d) In any
are unknown rem of general Other
circulation and manner the
in such places court may
and for such deem
time as the sufficient.
court may
order. Defendant is a In any action, Service may,
resident who whether in by leave of
Defendant The action: Service may, is temporarily personam, in court, be
does not (AREA) by leave of out of the rem or quasi in effected out of
reside and is a) Affects the court, be Philippines rem the
not found in personal effected out of Philippines:
the Philippines status of the (PIPO)

Bar Operations C ommissions 93

 Purple Notes
Remedial Law
of such jail or institution who is deemed as a
a) By Personal special sheriff for said purpose.
service as
under The jail warden shall file a return within five (5)
Section 6;
calendar days from service of summons to the
or
b) As provided defendant (Rule 14, Sec. 8).
for in
Internation (b) Service Upons Minors
alconventio
ns to which This rule applies when the defendant is:
the
Philippines a) A minor;
is a party; b) Insane; or
or
c) Otherwise an incompetent person
c) By
Publication
in a Service shall be made:
newspaper
of general a) Upon him or her personally AND on his or her
circulation legal guardian if he or she has one;
in such b) If none, upon his or her guardian ad litem
places and whose appointment shall be applied for by the
for such plaintiff; or
time as the
c) In the case of a minor: on his or her parent or
court may
order, in guardian (Rule 14, Sec. 10)
which case
a copy of Note: A copy of the complaint and order for
the appointment of guardian ad litem, if any, shall be
summons attached to the original and each copy of the
and order summons.
of the court
shall be
sent by SERVICE UPON SERVICE UPON MINORS
registered PRISONERS
mail to the
last known
address of Service shall be In the case of minor,
the effected upon the service SHALL be made on
defendant, prisoner by the the minor AND his father
or officer having the or mother;
d) In any management of such
Other jail (i.e. warden) who On the minor AND legal
manner the is deemed deputized guardian, if there is no
court may as a special sheriff for parent; or,
deem the purpose.
sufficient. On the minor AND
guardian ad litem whose
appointment shall be
3.G.8. Service Upon Prisoners and Minors; applied for by the plaintiff.
Upon Spouses

(a) Service Upon Prisoners (c) Service Upon Spouses

When the defendant is a prisoner confined in a When spouses are sued jointly, service of
jail or institution, service shall be effected upon summons should be made to each spouse
him or her by the officer having the management individually(Rule 14, Sec. 11).

94 Center for Legal Education and Research

 Purple Notes
Remedial Law
3.G.9. Service Upon Domestic or Foreign e) Treasurer;
Private Juridical Entities In-house counsel of
the corporation
(1) Service Upon Domestic Private Juridical wherever they may
be found
Entity
In their absence or
unavailability, on their
When the defendant is a corporation, secretaries.(n)
partnership or association organized under If such service cannot
the laws of the Philippines with a juridical be made upon any of
personality, service may be made on the: the foregoing persons,
it shall be made upon
a) President; the person who
b) Managing partner; customarily receives
c) General manager; the correspondence for
the defendant at its
d) Corporate secretary;
principal office.(n)
e) Treasurer; Should there be a refusal on the part of the
f) In-house counsel of the corporation wherever persons abovementioned to receive summons
they may be found; or despite at least three (3) attempts on two (2)
g) In their absence or unavailability, on their different dates, service may be made electronically,
secretaries. (n) if allowed by the court (Rule 14, Sec. 12).(n)
h) If such service cannot be made upon any of
the foregoing persons, it shall be made upon  Q. How is summons served to a corporate
the person who customarily receives the entity?
correspondence for the defendant at its
principal office(Rule 14, Sec. 12). (n) A. The purpose is to render it reasonably
certain that the corporation will receive
In case the domestic juridical entity is under prompt and proper notice in an action
receivership or liquidation, service of against it or to insure that the summons be
summons shall be made on the receiver or served on a representative so integrated
liquidator, as the case may be. (n) with the corporation that such person will
know what to do with the legal papers
Should there be a refusal on the part of the served on him. In other words, ‗tobring
persons above-mentioned to receive summons home to the corporation notice of the filing
despite at least three (3) attempts on two (2) of the action.‘(EB Villarosa vs. Benito, G.R. No.
different dates, service may be made 136426, August 6, 1999).
electronically, if allowed by the court, as
provided under Section 6 of this Rule (Rule 14, Basic is the rule that a strict compliance with
Sec.12). the mode of service is necessary to confer
jurisdiction of the court over a corporation.
Defendant is a: Defendant is The officer upon whom service is made must
(CPA) adomestic juridical be one who is named in the statute;
a) Corporation; entity is under: otherwise, the service is insufficient (BPI vs.
b) Partnership; or a) Receivership; or Sps. Santiago, G.R. No. 169116, March 28, 2007).
c) Association b) Liquidation.
organized under Note: Since service of summons on domestic
the laws of the
corporation is exclusive to the above, there can
Philippines.
Service may be made Service of summons shall
be no substituted service.
on the: be made on the:
a) President; a) Receiver; or  Q. What is the effect of improper service of
b) Managing partner; b) Liquidator summons to domestic corporations?
c) General manager;
d) Corporate A. Since service upon it was invalid, the trial
secretary; court did not acquire jurisdiction over it.

Bar Operations C ommissions 95

 Purple Notes
Remedial Law
Hence, all the subsequent proceedings in the
trial court are null and void, including the
order of default (Sps. Mason vs. CA, G.R. No.
144662, October 13, 2003).
that a party is doing business in the
Philippines does not make it so (Hongkong and
Shanghai Banking Corporation Limited vs. Catalan,
G.R. No. 159590, October 18, 2004).

(2) Service Upon Foreign Private Juridical
Entities (FPJE)
When the defendant is a foreign private juridical
entity which has transacted or is doing business
in the Philippines, as defined by law, service may
be made on:(RG-DOTA)
a) Its Resident agent designated in accordance
with law for that purpose;
b) If there be no such agent, on the Government
official designated by law to that effect; or
c) On any of its Officers, Agents, Directors or
Trustees within the Philippines.
Service Upon FJPE Not RegistedIn
Philippines
If the FPJE is not registered in the Philippines, or
has no resident agent but has transacted or is
doing business in it, as defined by law, such
service may, with leave of court, be
effectedoutside of the Philippines through any
of the following means:
(3) Service Upon Public Corporations
When the defendant is the Republic of the
Philippines, service may be effected on the
Solicitor General
In case of a province, city or municipality, or like
public corporations:
a) On its Executive Head; or
b) On such other officer or officers as the law
or the court may direct. (Rule 14, Sec. 15)
(4) Service upon Entity Without Juridical
Personality
When persons associated in an entity without
juridical personality are sued under the name by
which they are generally or commonly known,
service may be effected upon all the defendants
by:
a. serving upon any one of them; or
b. serving upon the person in charge of the
office or place of business maintained in such
name.

a) By personal service coursed through the Note: Such service shall not bind individually any
appropriate court in the foreign country with person whose connection with the entity has,
the assistance of the DFA; upon due notice, been severed before the action
b) By publication once in a newspaper of was filed(Rule 14, Sec. 7).
general circulation in the country where the
defendant may be found and by serving a Service of Summons on Juridical Entities
copy of the summons and the court order by
registered mail at the last known address of Defendant Service of Summons
the defendant; Foreign Private Service may be made on: (RG-
c) By facsimile; Juridical Entity DOTA)
d) By electronic means with the prescribed (FPJE) which
has a) Its Resident agent designated
proof of service; or
transacted or in accordance with law for
e) By such other means as the court, in its is doing that purpose;
discretion, may direct (Rule 14, Sec. 14). business in b) If there be no such agent, on
the the Government official
 Q: How is ―doing business in the Philippines‖ Philippines designated by law to that
established? effect; or
c) On any of its Officers, Agents,
For purposes of the rule on summons, the Directors or Trustees within
fact of doing business must first be the Philippines.
―established by appropriate allegations in the
complaint‖ and the court in determining such Foreign Private Service may, with leave of court,
fact need not go beyond the allegations Juridical be effectedoutside of the
therein. A general allegation, standing alone, Entitiy(FPJE) Philippines through any of the

96 Center for Legal Education and Research

 Purple Notes
Remedial Law
which: following means: When Another Summons Must Be Served
With the Amended Complaint
a) is not a) By personal service coursed  Q: When is there a need to serve another
registered through the appropriate court summons?
in the in the foreign country with
Philippines, the assistance of the DFA;
or b) By publication once in a The rule is that it is only when new causes of
b) has no newspaper of general action are alleged in an amended complaint
resident circulation in the country filed before the defendant has appeared in
agent but where the defendant may be court that another summons must be served
has found and by serving a copy on the defendant with the amended
transacted of the summons and the court complaint (De Dios vs. Court of Appeals, G.R. No.
or is doing order by registered mail at the 80491, August 12, 1992).
business in last known address of the
it, as defendant;
Summary of the Modes of Service of
defined by c) By facsimile;
law. d) By electronic means with Summons
the prescribed proof of
service; or Service of Summons vs.
e) By such other means as the Service of Pleadings and Other Papers
court, in its discretion, may
direct. (Rule 14, Sec. 14) SUMMONS PLEADINGS AND
Republic of the Service may be effected on the OTHER PAPERS
Philippines Solicitor General Upon person of the Personal Service
Province, City, Service may be effected on: defendant a) By delivering
Municipality, or a) On its Executive Head; or a) By handing a copy to personally a copy to
like public b) On such other officer or the defendant in the party or his
corporations officers as the law or the person counsel
court may direct. b) By tendering it to b) By leaving it in his
Entity without Service may be effected upon all him, if he refuses to office with his clerk
Juridical the defendants by: receive and sign for or with a person
Personality it. having charge
a) serving upon any one of thereof
them; or c) By leaving the copy
b) serving upon the person in between 8am and
charge of the officeor place 6pm at the party‘s or
of business maintained in counsel‘s residence, if
such name. known, with a person
of sufficient age and
Such service shall not bind discretion then
individually any person whose residing therein.
connection with the entity has, Substituted Service of Substituted Service of
upon due notice, been severed Summons Pleadings and other
before the action was filed (Rule a) By leaving copies of papers
14, Sec. 7). the summons at the By delivering a copy to
defendant‘s residence the clerk of court.
Effect of Non-service or Irregular Service of with some person of
Summons suitable age and
discretion then
residing therein; or,
Unless there is waiver, non-service or irregular
b) By leaving the copies
service renders all subsequent proceedings and at the defendant‘s
issuances null and void, including the order of office or regular
default, judgment by default, and the order of place of business
execution, because jurisdiction over the person of with some competent
the defendant was not acquired. person in charge
thereof.

Bar Operations C ommissions 97

 Purple Notes
Remedial Law
Notes: 3.H.1b. Distinguish: Motions and Pleadings

 What is substituted service in summons is a MOTION PLEADING

personal service in pleadings. A motion is an A pleading is a written
 In pleadings, personal service started with the application for relief statement of the
office of the pleader or his counsel. In default other than a pleading respective claims and
(Rule 15, Sec. 1). defenses of the parties
thereof, pleading is served in the residence of
submitted to the court for
the pleader or counsel. appropriate judgment
 In substituted service of summons, the process (Rule 6, Sec. 1).
starts with the residence. In default thereof,
then summons is served in the office or regular It may be in the form of a
place of business. complaint, counterclaim,
cross-claim, third-party
3.G.10. Proof of Service(Rule 14, Secs. 21-22) complaint, or complaint-
in-intervention, answer or
Proof of service of a summons: reply (Rule 6, Sec. 2).
Its purpose is to apply Its purpose is to submit a
for an order not included claim or defense for
1. Shall be made in writing by the server;
in the judgment. appropriate
2. Shall set forth the manner, place, and date
judgment(Rule 6, Sec. 1).
of service; May be oral when made Always filed before
3. Shall specify any papers which have been in open court or in the judgment and must be
served with the process and the name of the course of hearing or written(Rule 6, Sec. 1).
person who received the same; and trial(Rule 15, Sec. 2).
4. Shall be sworn to when made by a person
other than a sheriff or his or her deputy. 3.H.1c. Contents and Form of Motions

If summons was served by electronic mail, the Contents

following as shall constitute as proof of service:
1. A printout of said e-mail;
2. With a copy of the summons as served; and
3. The affidavit of the person mailing (Rule 14,
Sec. 21)
If the service has been made by publication,
service may be proved:
1. By the affidavit of the publisher, editor,
business or advertising manager, to which a
copy of the publication shall be attached; and
2. By an affidavit showing the deposit of a copy
of the summons and order for publication in
the post office, postage prepaid, directed to
the defendant by registered mail to his or her
last known address. (Rule 14, Sec. 22)
3.H. MOTIONS (Rule 15)
3.H.1. Motions In General
3.H.1a. Definition Of A Motion
1. A motion shall state the relief sought to be
obtained, and the grounds upon which it is
based; and
2. If required by these Rules or necessary to
prove facts alleged therein, it shall be
accompanied by supporting affidavits and
other papers(Rule 15, Sec. 3).
Form (Rule 15, Sec. 2)
General Rule: All motions must be in writing.
Exception:
1. Motions made in open court;
2. Motions made in the course of the hearing or
trial;
3. Motions set for hearing (by the applicant);
and,
4. Motions which the court may act upon without
prejudice to the rights of the adverse party.

A motion is an application for relief other than

by a pleading (Rule 15, Sec. 1)

98 Center for Legal Education and Research


Notes:
 A motion made in open court or in the course
of a hearing or trial should immediately be
resolved in open court, after the adverse party
is given the opportunity to argue his or her
opposition thereto.
 When a motion is based on facts not
appearing on record, the court may hear the
matter on affidavits or depositions presented
by the respective parties, but the court may
direct that the matter be heard wholly or
partly on oral testimony or depositions. (Rule
15, 2019 Amendments to the 1997 Rules on Civil
Procedure)
Classification of Motions: (ELMS)
1. Non-litigated motion (Ex parte) – a
motion made without the presence of a
notification to the other party because the
question generally presented is not debatable.
2. Litigated motion (de parte) – one made
with notice to the adverse party so that an
opposition thereto may be made.
3. Motion of Course – a motion for a certain
kind of relief or remedy to which the movant
is entitled as a matter of right, and not as a
matter of discretion on the part of the court.
4. Special motion– the opposite of a motion
of course; here, the discretion of the court is
involved.
3.H.1d. Litigious and Non-Litigious
Motions; When Notice of Hearing
Necessary
(a) Non-Litigious Motions
 Motions which the court may act upon without
prejudicing the rights of adverse parties are
non-litigious.
 These motions shall NOT be set for hearing
and shall be resolved by the court within five
(5) calendar days from receipt thereof.
 Non-litigiousmotions include:
a) Motion for the issuance of an alias
summons;
b) Motion for extension to file answer;
c) Motion for postponement;
Purple Notes
Remedial Law
d) Motion for the issuance of a writ of
execution;
e) Motion for the issuance of an alias writ of
execution;
f) Motion for the issuance of a writ of
possession;
g) Motion for the issuance of an order
directing the sheriff to execute the final
certificate of sale; and
h) Other similar motions(Rule 15, Sec.4).(n)
(b) Litigious Motions
 Litigious motions include:
a) Motion for bill of particulars;
b) Motion to dismiss;
c) Motion for new trial;
d) Motion for reconsideration;
e) Motion for execution pending appeal;
f) Motion to amend after a responsive
pleading has been filed;
g) Motion to cancel statutory lien;
h) Motion for an order to break in or for a writ
of demolition;
i) Motion for intervention;
j) Motion for judgment on the pleadings;
k) Motion for summary judgment;
l) Demurrer to evidence;
m) Motion to declare defendant in default; and
n) Other similar motions.
 These motions shall be served by personal
service, accredited private courier or
registered mail, or electronic means so as to
ensure their receipt by the other party.
 The opposing party shall file his or her
opposition to a litigious motion within five (5)
calendar days from receipt thereof. No other
submissions shall be considered by the court
in the resolution of the motion.
 The motion shall be resolved by the court
within fifteen (15) calendar days from its
receipt of the opposition thereto, or upon
expiration of the period to file such
opposition(Rule 15, Sec. 5).(n)
 Notice of hearing on litigious motions;
discretionary — The court may, in the
exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on
Bar Operations C ommissions 99
 Purple Notes
Remedial Law
the motion. The notice of hearing shall be
addressed to all parties concerned, and shall
specify the time and date of the hearing(Rule
15, Sec. 6).(n)
Proof of service necessary - No written
motion shall be acted upon by the court without
proof of service thereof. (Rule 15, Sec. 7)
Motion Day
Gerenal Rule: Where the court decides to
conduct hearing on a litigious motion, the same
shall be set on a Friday.
Exception:Except for motions requiring
immediate action(Rule 15, Sec. 8).
Requirements of a valid litigated motion
(WOP)
1. In Writing;
2. Contains the grounds or legal basis relied
upon, relief sought, and whenever
appropriate, must include supporting
affidavits and documents (Omnibus motion
rule); and
3. Proof of service.
Motionfor leave - A motion for leave to file a
pleading or motion shall be accompanied by the
pleading or motion sought to be admitted (Rule
15, Sec. 10).
Form — The Rules applicable to pleadings shall
apply to written motions so far as concerns
caption, designation, signature, and other
matters of form (Rule 15, Sec. 11).
3.H.1e. Omnibus Motion Rule
A motion attacking a pleading, order, judgment
or proceeding shall include all objections then
available, and all objections not included shall be
deemed waived, subject to the provisions of Rule
9, Sec. 1(Rule 15, Sec. 9).
Exceptions to the Omnibus Motion Rule[Rule
15, Sec. 12(a)]. (n)
1. Lack of jurisdiction. The court has no
jurisdiction over the subject matter of the
case;
100 Center for Legal Education and Research
2. Litis Pendentia. That there is an action
pending between the same parties for the
same cause;
3. Res judicata. That the action is barred by a
prior judgment; or
4. Prescription. That the action is barred by
the statute of limitations(Sps. De Guzman vs.
Ochoa, G.R. No. 169292, April 13, 2011).
Motion for Leave
A motion for leave to file a pleading or motion
shall be accompanied by the pleading or motion
sought to be admitted (Rule 15, Sec. 9).
3.H.1f. Prohibited Motions
The following motions shall NOT be allowed:
1. Motion to dismiss except on the following
grounds:
a. That the court has no jurisdiction over the
subject matter of the claim;
b. That there is another action pending
between the same parties for the same
cause; and
c. That the cause of action is barred by a
prior judgment or by the statute of
limitations;
2. Motion to hear affirmative defenses;
3. Motion for reconsideration of the court‘s
action on the affirmative defenses;
4. Motion to suspend proceedings without a
temporary restraining order or injunction
issued by a higher court;
5. Motion for extension of time to file pleadings,
affidavits or any other papers, except a
motion for extension to file an answer as
provided by Section 11, Rule 11; and
6. Motion for postponement intended for delay,
except if it is based on acts of God, force
majeure or physical inability of the witness to
appear and testify. If the motion is granted
based on such exceptions, the moving party
shall be warned that the presentation of its
evidence must still be terminated on the dates
previously agreed upon (Rule 15, Sec. 12).(n)
 Purple Notes
Remedial Law
Motion for Extension of Time to File Bill of Particulars is a complementary
Pleadings, Affidavits or any Other Papers procedural document consisting of an
amplification or more particularized outline of a
General Rule: It is a prohibited pleading; pleading(Enrile vs. People, G.R. No. 213455, August
hence, should not be allowed[Rule 15, Sec. 12(e)]. 11, 2015).

Exception: A defendant may, for meritorious Motion to Motion for a Demurrer to

reasons, be granted an additional period of not Dismiss Bill of Evidence
more than thirty (30) calendar days to file an (Rule 15) Particulars (Rule 33)
answer. (Rule 12)
Filed within Filed before Filed after the
the period responding to a plaintiff
A defendant is only allowed to file one (1) motion prescribed pleading. completes
for extension of time to file an answer(Rule 11, for filing an his/her
Sec. 11). answer. presentation of
evidence.
Motion for Postponement Generally, it Any matter on Upon the facts
is a the pleading and the law the
General Rule: It is a prohibited pleading; prohibited being responded plaintiff has
hence, should not be allowed[Rule 15, Sec. 12(f)]. pleading; to is not averred shown no right
except when with sufficient to relief.
it is filed definiteness or
Exception: If the same is based on: (AFP)
based on: particularity.

a) Acts of God; 1) That the

b) Force majeure; or court has no
c) Physical inability of the witness to appear and jurisdiction
testify. over the
subject
If granted, the movant shall be warned that matter of the
presentation of its evidence must still be claim;
2)Thattherei
terminated on the dates agreed upon during pre-
sanotheracti
trial (Rule 15, Sec. 12).(n) onpendingbe
tweenthesa
Note:A motion for postponement, whether mepartiesfor
written or oral, shall, at all times, be thesame
accompanied by the original official receipt from cause; and
the office of the clerk of court evidencing 3) That the
payment of the postponement fee under Section cause of
21(b), Rule 141, to be submitted either at the action is
barred by a
time of the filing of said motion or not later than
priorjudgme
the next hearing date. The clerk of court shall not nt or by the
accept the motion unless accompanied by the statute
original receipt(Rule 15, Sec. 12).(n) oflimitations;

Pro-forma Motions
A motion pro forma intended merely to delay the
proceedings and it shall not interrupt or suspend
the period of time for the perfection of an
appeal(Gaspay vs. Sangco, G.R. No. L-27826,
December 18, 1967).
3.H.2. Motion for Bill OfParticulars
3.H.2a. Purpose and When Applied for
Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter, which is not averred
with sufficient definiteness or particularity, to
enable him or her properly to prepare his or her
responsive pleading.

Bar Operations C ommissions 101

 Purple Notes
Remedial Law
If the pleading is a reply, the motion must be a) Deny it;
filed within ten (10) calendar days from service b) Grant it outright; or
thereof. Such motion shall point out the defects c) Allow the parties the opportunity to be heard
complained of, the paragraphs wherein they are (Rule 12, Sec. 2).
contained, and the details desired(Rule 12, Sec. 1).
3.H.2c. Compliance With The Order and
Purpose Effect of Non-Compliance (Rule 12, Secs. 3 and
4)
To seek an order from the court directing the
pleader to submit a bill of particular which avers Compliance with the Order
matters with sufficient definiteness or
particularity to enable the movant to properly General Rule: If the motion is granted, either in
prepare his responsive pleading. whole or in part, the compliance therewith must
be effected within ten (10) calendar days from
The function of the bill of particular is not to notice of the order.
obtain evidentiary matter (Salita vs. Magtolis GR.
No. 106429 June 13, 1994). Exception: When a different period is fixed by
the court.
 Q. What is the proper remedy wherein the
complaint is vague or indefinite? The bill of particulars or a more definite
statement ordered by the court may be filed
A. An action cannot be dismissed on the either in a separate or in an amended pleading,
ground that the complaint is vague or serving a copy thereof on the adverse party (Rule
indefinite. The remedy of the defendant is to 12, Sec. 3).
move for a bill of particulars or avail of the
proper mode of discovery (Galeon vs. Galeon, Effect of Non-compliance
G.R. No. L-30380, February 28, 1973).
If the order is not obeyed, or in case of
When to File a Motion for a Bill of insufficient compliance therewith, the court may
Particulars order the striking out of the pleading or the
portions thereof to which the order was directed,
1. Before responding to a pleading.
or make such other order as it deems just (Rule
2. If the pleading is a reply, within ten (10) 12, Sec. 4).
calendar days from service thereof. (Rule 12,
2019 Amendments to the 1997 Rules on Civil Non-compliance is Non-compliance is by
Procedure) by the Plaintiff the Defendant
General Rule: His 1. His Answer will be
Motion for Bill of Particulars must be filed within complaint will be stricken off;
the reglementary period for the filing of a stricken off and 2. His counterclaim
responsive pleading. If sufficient in form and dismissed. dismissed; and
substance, the filing of the motion will interrupt 3. He will be declared in
the time to plead. Exception: When the default upon motion
court orders otherwise. of the
A Bill of Particulars becomes part of the pleading plaintiff(Momarco
Import Company, Inc,
that it supplements (Rule 12, Sec. 6).
vs. Villamena, G.R.
No. 192477, July 27,
Note: A Motion for a Bill of Particulars is a 2016).
litigated motion(Rule 15, Sec. 5).
Note: Rules on answer to an amended complaint
3.H.2b. Actions of the Court shall apply to amended counterclaim, amended
cross claim, amended third (fourth, etc) party
Upon the filing of the motion, the clerk of court complaint, and amended complaint in
must immediately bring it to the attention of the intervention(Rule 11, Sec. 3).
court, which may either:

102 Center for Legal Education and Research

 Purple Notes
Remedial Law
3.H.2d. Effect on the Period to File A a) That the cause of action is barred by a prior
Responsive Pleading judgment or by the statute of limitations;
b) When the claim or demand set forth in the
After service of the bill of particulars or of a more plaintiff‘s pleading has been paid, waived,
definite pleading, or after notice of denial of his abandoned or otherwise extinguished; or
motion, the moving party may file his responsive c) When the claim on which the action is
pleading within the period to which he was founded is unenforceable under the provisions
entitled at the time of filing his motion, which of the statute of frauds (Rule 15, Sec. 13).
shall not be less than five (5) calendar days in
any event(Rule 12, Sec. 5). 3.I.2. Dismissal Upon Notice By Plaintiff
(Rule 17, Sec. 1)
Motion for Bill of Motion for Bill of
Particulars is Particulars is Denied
General Rule: The dismissal upon notice by
Granted
The movant may file The movant may file his
plaintiff is without prejudice.
his or her responsive or her responsive
pleading after service pleading after notice of Exception: When otherwise stated in the notice.
of the bill of particulars the denial of the motion.
or a more definite  Two-Dismissal Rule
pleading. A notice operates as an adjudication upon the
In any case, the movant may file his or her merits when filed by a plaintiff who has once
responsive pleading within the period to which he dismissed in a competent court an action
or she was entitled at the time of filing his or her based on or including the same claim (Rule 17,
motion, which shall not be less than five (5)
Sec. 1).
calendar days.
Exception to the Exception: When the prior
3.I. DISMISSAL OF ACTIONS (Rule 17, 2019
dismissal is for lack of jurisdiction.
Amendments to the 1997 Rules on Civil Procedure)
 Q. What is the purpose of ―two-dismissal
3.I.1. Dismissal With Prejudice
rule‖?
Dismissal With Prejudice vs. Dismissal
A. The purpose of the ―two-dismissal rule‖ is
Without Prejudice
to avoid vexatious litigation. When a
complaint is dismissed a second time, the
Dimissal Dimissal
WITH Prejudice WITHOUT Prejudice plaintiff is now BARRED from seeking relief on
the same claim (Ching vs. Cheng, G.R. No.
Dismissal of a case on It leaves the plaintiff 175507, October 8, 2014).
merits after free to bring another
adjudication. It is a final suit based on the same Dismissal is effected not by motion but by mere
judgment and the case grounds. notice of dismissal, which may be filed by the
becomes res judicata on plaintiff as matter of right before the service of:
the claims that were or
could have been a) The answer; or,
brought in it(Aledro-
b) A motion for summary judgment.
Runa vs. Lead Export
and Agro-Development
Corporation, G.R. No. Note: What causes plaintiff‘s loss of the right to
225896, July 23, 2018). effect dismissal by mere notice is not the
defendant‘s act of filing the answer, BUT the
3.I.1. Dismissal With Prejudice service of such answer upon him.
Upon such notice being filed, the court shall issue
An order dismissing an action on the following an order confirming the dismissal. Without such
grounds shall bar the refiling of the same action: order of confirmation, the dismissal does not
become effective.

Bar Operations C ommissions 103

 Purple Notes
Remedial Law
The dismissal as a matter of right ceases when
an answer or a motion for summary judgment is
served on the plaintiff and not when the answer
or the motion is filed with the court. Thus, if a
notice of dismissal is filed by the plaintiff even
after an answer has been filed in court but before
the responsive pleading has been served on the
plaintiff, the notice of dismissal is still a matter of
right. (Riano, Civil Procedure, p. 224, 2007 ed.)
If the plaintiff files a notice of dismissal providing
therein a reason that prevents the refilling of the
complaint, the dismissal must be deemed one
with prejudice. This happens when the notice
provides that the plaintiff recognizes the fact of
prescription or extinguishment of the obligation
of the defendant or for reasons stated in [Sec. 13
of Rule 15] (Riano, Civil Procedure, 2007 ed., p.
225,).
 Where such notice is premised on the fact of
payment by the defendant of the claim
involved, the dismissal is with prejudice even
if the notice of dismissal does not provide
that it is with prejudice (Serrano vs. Cabrera,
G.R. No. L-5189, September 21, 1953).
3.I.3. Dismissal Upon Motion by Plaintiff;
Effect on Existing Counterclaim (Rule 17, Sec.
2)
In all instances, Rule 17 governs dismissals at the
instance of the plaintiff, not of the defendant.
(Ching vs. Cheng, G.R. No. 175507, October 8, 2014).
Under this section, the dismissal of the complaint
is subject to the discretion of the court and upon
such terms and conditions as may be just.
This contemplates a situation where an answer
has already been served.
Effects of Dismissal upon Motion
Plaintiff
 When defendant has not filed
counterclaim
The plaintiff can move for the dismissal of the
entire case provided that the defendant has not
filed a counterclaim (compulsory or permissive)
and the court deems the dismissal proper(Rule 17,
Sec. 2).
104 Center for Legal Education and Research
 When a counterclaim has been
interposed(Rule 17, Sec. 2)
1. If a counterclaim has been pleaded by a
defendant PRIOR to the service upon him of
the plaintiff‘s motion for dismissal, the
dismissal shall be limited to the complaint.
2. Such dismissal shall be WITHOUT prejudice to
the right of the defendant to either:
a) Prosecute his counterclaim in a separate
action; or,
b)
The court shall render the corresponding
order granting and reserving the
defendant‘s right to prosecute his claim in
a separate complaint.
c) Have his counterclaim resolved in the same
action. Defendant must manifest such
preference to the trial court within 15 days
from notice of the plaintiff‘s motion to
dismiss.
Notes:
 The alternative remedies of the defendants
are available to him regardless of whether his
counterclaim is compulsory or permissive.
 A dismissal upon motion of plaintiff shall be
without prejudice UNLESS otherwise stated in
the order.
 The approval of the court is necessary in the
dismissal or compromise of a class suit(Rule
17, Sec. 2).
 Q. May the defendant prosecute his claim
inspite the dismissal of complaint as contrast
to dismissal of an action?
by
A. A dismissal of an action is different from a
mere dismissal of the complaint. For this
a reason, since only the complaint and not the
action is dismissed, the defendant – in spite of
said dismissal – may still prosecute his
counterclaim in the same action. In the
instant case, the petitioner‘s preference to
have his counterclaim (and cross-claims) be
prosecuted in the same action was timely
manifested (Chuan vs. Uy, G.R. No. 155701,
March 11, 2015).
 Purple Notes
Remedial Law
Comparison Between Note: The dismissal is with prejudice unless
Sections 2 and 3 of Rule 17 otherwise declared by the court. It shall have the
effect of adjudication upon the merits of the
DISMISSAL UPON case.
DISMISSAL DUE TO
MOTION OF
FAULT OF PLAINTIFF
PLAINTIFF 3.I.5. Dismissal of Counterclaim, Cross-
(Rule 17, Sec.3)
(Rule 17, Sec.2) Claim, or Third-Party Complaint
Dismissal is at the Dismissal is NOT procured
instance of the plaintiff. by plaintiff, though justified
by causes imputable to
The provisions of Rule 17 shall apply to the
him/her. dismissal of any counterclaim, cross-claim, or
Gen. Rule: Dismissal is Gen. Rule: Dismissal is a third-party complaint. A voluntary dismissal by
a matter of procedure, matter of evidence, an the claimant by notice as in Section 1 of the said
without prejudice. adjudication on the merits. rule shall be made before a responsive pleading
is served or, if there is none, before the
Exception: When Exception:When introduction of evidence at the trial or
otherwise stated in the otherwise declared by the hearing(Rule 17, Sec. 4).
order of the court or on court.
plaintiff‘s motion to
 Q: What is the effect of the dismissal of an
dismiss his/her own
complaint. action?
Dismissal is without Dismissal is without A.A dismissal or discontinuance of an action
prejudice to the right of prejudice to the right of the operates to annul orders; rulings or
the defendant to defendant to prosecute judgments previously made in a case, as
prosecute his/her his/her counterclaim on the well as all proceedings had in connection
counterclaim in a same or separate action. therewith and renders all pleadings
separate action UNLESS ineffective (Servicewide Specialist, Inc. VS CA,
within 15 calendar GR No. 110597, May 8, 1996).
days from notice of the
motion, he/she
3.J. PRE-TRIAL
manifests his/her
intention to have his/her
counterclaim resolved in 3.J.1. Concept of Pre-Trial
the same action.
Pre-trial is a mandatory conference and personal
3.I.4. Dismissal Due to the Fault of the confrontation between the parties in the
Plaintiff (Rule 17, Sec. 3) presence of their respective counsel and the
judge.
Complaint may be dismissed:
Pre-trial is a procedural device intended to clarify
a) Upon motion of the defendant; or and limit the basic issues between the parties. It
b) Upon court‘s own initiative. thus paves the way for a less cluttered trial and
resolution of the case. Its main objective is to
Instances when the court can dismiss the simplify, abbreviate and expedite the trial, or
case motu proprio: (F3LS) totally dispense with it. Prescinding therefrom, it
is a basic legal precept that the parties are bound
a) The plaintiff Fails to appear on the date of to honor the stipulations they made during the
the presentation of his evidence-in-chief on pre-trial(Claudio vs. Quebral, G.R. NO. 165962, July 6,
the complaint (Rule 17,Sec. 3); 2007).
b) Plaintiff Fails to prosecute his action for an
unreasonable length of time (Rule 17,Sec. 3); 3.J.2. Nature and Purpose of Pre-Trial
c) Plaintiff Fails to comply with the Rules or the
orders of the court (Rule 17,Sec. 3); The Pre-trial is mandatory and should be
d) Lack of jurisdiction;
terminated promptly.(Rule 18, Sec. 2, 2019
e) In cases of Summary Procedure Amendments to the 1997 Rules on Civil Procedure)

Bar Operations C ommissions 105

 Purple Notes
Remedial Law
What the court shall consider during the
pre-trial conference:
(NOTE: Numbers 5 and 8 - 2019 Amendments to the
1997 Rules on Civil Procedure)
1. Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
2. Simplification of issues;
3. Necessity or desirability of amendments of
the pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5. Limitation on the number and identification
of witnesses and the setting of trial dates;
6. Advisability of a preliminary reference of
issues to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment or of
dismissing the action should a valid ground
be found to exist;
8. The requirement for the parties to:
a. Mark their respective evidence if not yet
marked in the judicial affidavits of their
witnesses;
b. Examine and make comparisons of the
adverse parties' evidence vis-avis the
copies to be marked;
c. Manifest for the record stipulations
regarding the faithfulness of the
reproductions and the genuineness and
due execution of the adverse parties'
evidence;
d. Reserve evidence not availableat the pre-
trial, but only in the following manner:
i. For testimonial evidence, by giving the
name or position and the nature of
the testimony of the proposed
witness;
ii. For documentary evidence and other
object evidence, by giving a particular
description of the evidence.
iii. No reservation shall be allowed if not
made in the manner described above.
9. Advisability or necessity of suspending the
proceedings; and,
10. Such other matters as may aid in the prompt
disposition of the action.
106 Center for Legal Education and Research
The failure without just cause of a party
and counsel to appear during pre-trial,
despite notice, shall result in a waiver of any
objections to the faithfulness of the reproductions
marked, or their genuineness and due execution.
The failure without just cause of a party
and/or counsel to bring the evidence
required shall be deemed a waiver of the
presentation of such evidence(Rule 18, Sec. 2,
2019 Amendments to the 1997 Rules on Civil
Procedure).
IMPORTANT NOTE: The above enumeration no
longer applies at the pre-trial proper because of
the Mediation and Conciliation Proceedings (A.M.
No. 03-1-09-SC, effective August 16, 2004). They no
longer happen before the judge, but before the
Branch Clerk of Court. Remember that the
pre-trial will still be set.
3.J.3. Notice of Pre-Trial
The notice of pre-trial shall be served on counsel,
or on the party who has no counsel. The counsel
served with such notice is charged with the duty
of notifying the party represented by him or her
(Rule 18, Sec. 3).
The notice of pre-trial shall include the
datesrespectively set for:
1. Pre-trial;
2. Court-Annexed Mediation; and
3. Judicial Dispute Resolution, if necessary (Rule
18, Sec. 2, 2019 Amendments to the 1997 Rules on
Civil Procedure).
 Sending a notice of pre-trial stating the date,
time and place of pre-trial is mandatory. Its
absence will render the pre-trial and
subsequent proceedings void (Maxima vs.
Tecson, G.R. No. 145276, November 29, 2005).
3.J.4. Appearance of Parties; Effect of
Failure to Appear
Appearance of Parties
It shall be the duty of the parties and their
counsel to appear at the pre-trial, court-annexed
mediation, and judicial dispute resolution, if
necessary. (Underlined: Rule 18, Sec. 4, 2019
Amendments to the 1997 Rules on Civil Procedure)

The non-appearance of a party and counsel may
be excused only for: (FAP)
a) Acts of God;
b) Force majeure; or
c) Duly substantiated Physical inability (Rule 18,
Sec. 4, 2019 Amendments to the 1997 Rules on
Civil Procedure).
A representative may appear on behalf of a
party, but must be fully authorized in
writing to:
1. Enter into an amicable settlement;
2. Submit to alternative modes of dispute
resolution; and
3. Enter into stipulations or admissions of facts
and documents (Rule 18, Sec. 4).
Note: In case of juridical person, a board
resolution is required. The appearance of the
counsel without the SPA shall render the absent
plaintiff non-suited and the defendant may move
for the dismissal of the case(Daaco vs. Yu, G.R. No.
183398, June 22, 2015).
Effects of Non-Appearance
Purple Notes
Remedial Law
Contents: (SWAIRES)
1. A concise Statement of the case and the
reliefs prayed for;
2. A summary of Admitted facts and proposed
stipulation of facts;
3. The main factual and legal Issues to be tried
or resolved;
4. The propriety of Referral of factual issues to
commissioners;
5. The documents or other object Evidence to be
marked, stating the purpose thereof;
6. The names of the Witnesses, and the
summary of their respective testimonies; and
7. A brief Statement of points of law and citation
of authorities (Rule 16, Sec. 6).
The Pre-Trial Brief must be filed with the court
and served on the adverse party at least 3
calendar days before the date of the pre-trial
(Rule 16, Sec. 6).
Effect of Failure to File Pre-Trial Brief
Failure to file a pre-trial brief has the same effect
as failure to appear at the pre-trial.

Plaintiff and Counsel Defendant and Plaintiff and Defendant and Counsel
Counsel Counsel
Dismissal of the action. a. Plaintiff shall be Dismissal of the a. Plaintiff shall be
The dismissal shall be allowed to present his action. The dismissal allowed to present his
with prejudice, unless or her evidence ex shall be with or her evidence ex
otherwise ordered by parte within ten (10) prejudice, unless parte within ten (10)
the court. calendar days from otherwise ordered by calendar days from
termination of the the court. termination of the pre-
pre-trial; and trial; and
b. The court shall be b. The court shall be
allowed to render allowed to render
judgment on the judgment on the basis
basis of the evidence of the evidence
offered (Rule 18, Sec. offered(Rule 18, Sec.
5). 5).
Records of Pre-Trial
Note: There is no more declaration of default in
case one of the parties is absent, the court may The proceedings in the pre-trial shall be
proceed in the rendition of judgment or recorded.
presentation of evidence. The remedy of a
plaintiff who is non-suited is to appeal(Chinkoe vs. The pre-trial order shall be issued within ten (10)
Republic, G.R. No. 183608, July 31, 2013). days after the termination of the pre-trial.

3.J.5. Pre-Trial Brief; Effect of Failure to The order shall recite in detail the matters taken
File Pre-Trial Brief up in the conference.
Pre-Trial Brief

Bar Operations C ommissions 107

 Purple Notes
Remedial Law
If the action proceeds to trial, the order shall
explicitly define and limit the issues to be tried.
The contents of the order shall control the
subsequent courses of the action, UNLESS
modified before trial to prevent manifest
injustice.
Note: There is no need to go to trial if only legal
issues will be presented. It is presumed that the
judge and the parties know the law.
3.J.6. Pre-Trial Order
Upon termination of the pre-trial, the court shall
issue an order within ten (10) calendar days
which shall recite in detail the matters taken up.
Contents of the Pre-Trial Order
1. An enumeration of the admitted facts;
2. The minutes of the pre-trial conference;
3. The legal and factual issue/s to be tried;
4. The applicable law, rules, and jurisprudence;
5. The evidence marked;
6. The specific trial dates for continuous trial,
which shall be within the period provided by
the Rules;
7. The case flowchart to be determined by the
court, which shall contain the different stages
of the proceedings up to the promulgation of
the decision and the use of time frames for
each stage in setting the trial dates;
8. A statement that the one-day examination of
witness rule and most important witness rule
under A.M. No. 03-1-09-SC (Guidelines for
Pre-Trial) shall be strictly followed; and
9. A statement that the court shall render
judgment on the pleadings or summary
judgment, as the case may be. (Rule 18, Sec.
7, 2019 Amendments to the 1997 Rules on Civil
Procedure)
The direct testimony of witnesses for the plaintiff
shall be in the form of judicial affidavits. After the
identification of such affidavits, cross-examination
shall proceed immediately(A.M. No. 12-8-8-SC, Sec.
7).
General Rule: Postponement of presentation of
the parties‘ witnesses at a scheduled date is
prohibited(Rule 18, Sec. 7). (n)
Exception: If it is based on:
108 Center for Legal Education and Research
 Acts of God;
 Force majeur; or
 Duly substantiated physical inability of
the witness to appear and testify(Rule 18,
Sec. 7). (n)
Notes:
 The party who caused the postponement is
warned that the presentation of its evidence
must still be terminated within the remaining
dates previously agreed upon(Rule 18, Sec. 7).
(n).
 Should the opposing party fail to appear
without valid cause, the presentation of the
scheduled witness will proceed with the
absent party being deemed to have waived
the right to interpose objection and conduct
cross-examination(Rule 18, Sec. 7). (n)
 The contents of the pre-trial order shall
control the subsequent proceedings, UNLESS
modified before trial to prevent manifest
injustice (Rule 18, Sec. 7). (n)
Court-Annexed Mediation
After pre-trial and, after issues are joined, the
court shall refer the parties for mandatory court-
annexed mediation.
The period for court-annexed mediation shall not
exceed thirty (30) calendar days without further
extension (Rule 18, Sec. 8, 2019 Amendments to the
1997 Rules on Civil Procedure).
Judicial Dispute Resolution
 Only if the judge of the court to which the
case was originally raffled is convinced that
settlement is still possible, the case may be
referred to another court for judicial dispute
resolution.
 The judicial dispute resolution shall be
conducted within a non-extendible period of
fifteen (15) calendar days from notice of
failure of the court-annexed mediation.
 If judicial dispute resolution fails, trial before
the original court shall proceed on the dates
agreed upon.
 All proceedings during the court-annexed
mediation and the judicial dispute resolution
shall be confidential (Rule 18, Sec. 9, 2019
Amendments to the 1997 Rules on Civil Procedure).
 Purple Notes
Remedial Law
Judgment After Pre-Trial theircounsel.(Rule 18, signed by the accused and
Sec. 2) counsel, otherwise, they
The court shall motu proprio include in the pre- cannot be used against
trial order that the case be submitted for the accused.(Rule 118, Sec.
2)
summary judgment or judgment on the The sanctions for non- In case of failure of the
pleadings, without need of position papers or appearance in a pre- counsel for the accused or
memoranda in the following cases: trial in a civil case are the prosecutor to appear
imposed upon the at the pre-trial conference,
 Should there be no more controverted facts, plaintiff and the the proper sanctions or
or defendant (Rule 18, penalties are imposed
 Should there be no more genuine issue as to Sec. 4) upon the counsel (Rule
118, Sec. 3)
any material fact, or an absence of any issue,
A Pre-trial Brief is A Pre-trial Brief is not
or
specifically required to required to be submitted
 Should the answer fail to tender an issue. be submitted in a civil in a criminal case.
case (Rule 18, Sec. 6)
Provided that it shall be without prejudice to a
party moving for judgment on the pleadings 3.K. INTERVENTION
under Rule 34 or summary judgment under Rule
35. Intervention is the remedy by which a third
In such cases, judgment shall be rendered within person, not originally a party to the suit, but
ninety (90) calendar days from termination of the claiming an interest in the subject matter, comes
pre-trial. into the case, in order to protect his right or
interpose his claim.
The order of the court to submit the case for
judgment shall not be the subject to appeal or It is a remedy by which a third party, not
certiorari(Rule 18, Sec. 7, 2019 Amendments to the originally impleaded in the proceedings, becomes
1997 Rules on Civil Procedure). a litigant therein, to enable him to protect or
preserve a right or interest which may be
3.J.7. Distinction Between Pre-Trial in Civil affected by such proceeding(Office of the
Cases and Pre-Trial in Criminal Cases Ombudsman vs. Gutierrez, G.R. No. 189100, June 21,
2017).
PRE-TRIAL IN PRE-TRIAL IN
CIVIL CASES CRIMINAL CASES
Note: An intervention is always supplemental to
an existing litigation. A dismissal of the principal
It is set when the It is set when the Court action will give rise to the denial of a pending
branch clerk of court shall order a pre-trial motion for intervention(Ongco vs. Dalisay, G.R. No.
shall issuea notice of conference(Rule 118, Sec. 190810, July 18, 2012).
pre-trial(Rule 18, Sec. 1) 1)
It is set not later than It is set after arraignment Who May Intervene
sixty (60) calendar and within thirty (30) days
days from the date the court a) One who has a legal interest in the matter in
from the filing of the acquires jurisdiction over litigation;
last responsive the person of the
b) One who has legal interest in the success of
pleading.(Rule 18, Sec. accused(Rule 118, Sec. 1)
1) either of the parties;
The court considers The court does not c) One who has an interest against both parties;
the possibility of an considers the possibility of d) One who is so situated as to be adversely
amicable settlement as an amicable settlement as affected by the distribution or other
one of its purpose(Rule one of its purpose disposition of property in the custody of the
18, Sec. 2) court or of its officer.(Rule 19, Sec. 1)
The branch clerk of All agreements or
court shall prepare the admissions made or
For a person to intervene in a suit, the interest
minutes of the pre- entered during the pre-
trial and signed by trial conference shall be must be actual and material, on a matter in
both parties and reduced in writing and litigation, and of such direct and immediate

Bar Operations C ommissions 109

 Purple Notes
Remedial Law
character that the intervenor will either gain or
lose by the direct legal operation and effect of
the judgment(Neptune Metal Scrap Recycling, Inc.,
Vs. Manila Electric Company, G.R. No. 204222, July 4,
2016).
The intervenor may only intervene with leave of
court. Admittance of intervention is a matter of
judicial discretion(Neptune Metal Scrap Recycling,
Inc. vs. Manila Electric Company, G.R. No. 204222, July
4, 2016).
Factors to be considered by the court
 Whether or not the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties; and,
 Whether or not the intervenor‘s rights may be
fully protected in a separate proceeding(Rule
19, Sec. 1) (n).
Pleadings In Intervention (Rule 19, Sec. 3)
1. Complaint-in-intervention - if it asserts
claim against either or all of the original
parties.
2. Answer-in-intervention – if it joins the
defendant.
A complaint-in-intervention is an initiatory
pleading(A.M. No. 04-94, effective April 1, 1994). As
such, it is subject to the requirements on the
payment of docket fees and certification against
forum shopping.
Notes:
 The answer to the complaint-in-intervention
shall be filed within 15 calendar days from
notice of the order admitting the same,
UNLESS a different period is fixed by the court
(Rule 19, Sec. 4).
 If an intervention makes a third-party a
litigant in the main proceedings, his pleading-
in-intervention should form part of the main
case (Chipongian vs. Benitez-Lirio, G.R. No.
162692, August 26, 2015).
3.K.1. Requisites for Intervention
1. There must be a motion for leave to intervene
filed before rendition of judgment by the trial
court (Rule 19, Sec. 2).
110 Center for Legal Education and Research
2. A person should have a legal interest either:
a) In the matter in litigation; or,
b) In the success of either party; or,
c) Against both parties; or,
d) May be adversely affected by a
distribution/disposition of property which is
in the court‘s or its officer‘s custody (Rule
19, Sec. 1).
3. Intervention will not unduly delay orprejudice
the adjudication of the rights of original
parties (Rule 19, Sec. 1);
4. Intervenor's rights may not be fullyprotected
in a separate proceeding(Rule 19, Sec. 1;
Mabayo Farms, Inc. vs. CA, C.R. No. 140058,
August 1, 2002); and,
5. A copy of the pleading-ininterventionshall be
attached to the motion and served on the
original parties(Rule 19, Sec. 2).
 Q: What are the requisites for a valid
intervention?
A. To warrant intervention under Rule 19 of
the Rules of Court, two requisites must
concur: (1) the movant has a legal interest in
the matter in litigation; and (2) intervention
must not unduly delay or prejudice the
adjudication of the rights of the parties, nor
should the claim of the intervenor be capable
of being properly decided in a separate
proceeding (Office of the Ombudsman vs. Sison,
G.R. No. 185954, February 16, 2010).
 Q:May a person who is not a party to the
case be bound by the order of the court?
A. Conversely, a person who is not a party in
the main suit cannot be bound by an ancillary
writ, such as a preliminary injunction.
Indeed, he cannot be affected by any
proceeding to which he is a stranger. Thus, a
person not a party to the proceedings in the
trial court or in the CA cannot maintain an
action for certiorari in the Supreme Court to
have the judgment reviewed. Stated
differently, if a petition for certiorari or
prohibition is filed by one who was not a
party in the lower court, he has no standing
to question the assailed order (Fernandez vs.
CA, A.M. OCA IPI No. 12-201-CA-J, February 19,
2013).
 Q:What is the power of the court in allowing
or denying an intervention?
 Purple Notes
Remedial Law
A. A court‘s power to allow or deny a) Even after judgment, where the intervenors
intervention, albeit discretionary in nature, is are indispensable parties that without them,
circumscribed by the basic demand of sound no final adjudication of the controversy could
judicial procedure that only a person with be made (Rodriguez vs. CA, G.R. No. 184589,
interest in an action or proceeding may be June 13, 2013);
allowed to intervene. Otherwise stated, a b) When the Republic is the intervenor(Lim vs.
court has no authority to allow a person, who Pacquing, G.R. 115044, January 27, 1995);
has no interest in an action or proceeding, to c) To protect public interest(Pinlac vs. CA, G.R. No.
intervene therein. Consequently, when a 91486. September 10, 2003);
court commits a mistake and allows an
uninterested person to intervene in a case, 3.K.3. Remedies for the Denial of Motion to
the mistake is not simply an error of Intervene
judgment, but one of jurisdiction (Añonuevo a) Appeal
vs. Intestate Estate of Jalandoni, G.R. No. 178221, b) Mandamus, if there is no other plain, speedy
December 1, 2010). and adequate remedy
c) Certiorari, if there is grave abuse of
3.K.2. Time to Intervene discretion
The motion to intervene may be filed at any An improper denial of a motion to intervene is
timebefore rendition of judgment by the trial correctible by appeal, BUT if there is grave
court. (Rule 19, Sec. 2). abuse of discretion, mandamus will lie if there is
no other plain, speedy and adequate remedy.
Procedure for Intervention
Note: The grant or refusal of a motion to
1. The motion and pleading shall be served upon intervene is discretionary upon the court. Once
the original parties. exercised, the decision cannot be reviewed or
2. The intervenor shall file a motion controlled by mandamus, EXCEPT, if there is
forintervention attaching thereto hispleading- arbitrary abuse of the discretion, where the court
in-intervention. The following arethe pleadings will be called upon to review the exercise of such
to be filed depending upon the purpose of the discretionary power. If there is grave abuse of
intervention: discretion, the party may also avail of certiorari.
Intervention vs. Interpleader
a) if the purpose is to assert a claim against
INTERVENTI0N INTERPLEADER
either or all of the original parties, the
An ancillary action. Aspecialcivilaction,
pleading shall be called a complaint-in- independent and original
intervention; or Commenced by a Commenced by the filing
b) if the purpose is to unite with the motion for leave to ofa complaint, it being an
defending party inresisting a claim against intervene filed in a original action
the latter, he or she shall file an answer-in- pending case
intervention(Rule 19, Sec. 2). attaching thereto the
pleading-in-
3. The answer to the complaint-in-intervention intervention.
shall be filed within fifteen (15) calendar days Filed by a person who Filed by a person who has
from notice of the order admitting the same, has legal interest in no interest in the subject
unless a different period is fixed by the any of the following: matter of the action or if
court(Rule 19, Sec. 4). a) the subject matter he has an interest, the
in litigation; b) the same is not is not
General Rule: Motion to intervene should be success of either disputed by the claimants.
filed at any time before rendition of judgment by party; c) an interest
the trial court (Rule 19, Sec. 2). An intervention against both d) he
after trial and decision can no longer be may be adversely
affected by a
permitted (Yau vs. Manila Banking Corporation, G.R.
distribution or
No. 126731,July 11, 2002).
disposition of property
which is in the court‘s
Exceptions:

Bar Operations C ommissions 111

 Purple Notes
Remedial Law
INTERVENTI0N INTERPLEADER Note: Subpoena duces tecummay, at the same
or its officer‘s custody time, subpoena ad testificandum because in a
If a complaint-in- Defendants are brought subpoena duces tecum, you are asked to bring
intervention is filed, into the action because recordsand testify on the records.
the defendants are they are sued and
already parties to an impleaded as such in the
3.L.3. Service of Subpoena
existing suit, not complaint
because of the
intervention, but It shall be made in the same manner as personal
because of the original or substituted service of summons. The original
suit. shall be exhibited and a copy delivered to the
(Riano, Civil Procedure Vol. II, 2016 ed., Pp.136-137) person on whom it is served, tendering to him
the fees for one day‘s attendance and the
3.L. SUBPOENA kilometrage allowed by these rules. The service
must be made so as to allow the witness a
Subpoena is a process directed to a person reasonable time for preparation and travel to the
requiring him or her to attend and to testify at place of attendance.
the hearing or the trial of an action, or at any
Costs for court attendance and the production of
investigation conducted by competent authority,
documents and other materials subject of the
or for the taking of his deposition (Rule 21, Sec. 1).
subpoena shall be tendered or charged
accordingly(Rule 21, Sec. 1).(n)
Subpoena vs. Summons
Note: When a subpoena is issued by or on
SUBPOENA SUMMONS behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be
An order to appear An order to answer the made.
and testify, or to complaint(Rule 14, Sec.
produce books and 2). Tendering - a method of delivery, except that
documents(Rule 21, the recipient has the choice not to accept the
Sec. 1). tender. However, the act of tender completes the
May be served to a Served on the responsibility of the person making the tender.
non-party(Rule 21, Sec. defendant(Rule 14, Sec.
The tender may save the tendering party from a
1). 2).
penalty of non-performance or may, if the other
Requires tender of Does not need tender of
kilometrage, kilometrage and other party unjustly refuses to accept the tender, it
attendance fee and fees. places the other party in default (Black‘s Law
reasonable cost of dictionary 8th edition).
production fee(Rule 21,
Sec. 6). Who May Issue a Subpoena?

3.L.1. Subpoena Duces Tecum
It is a process directed to a person requiring him
or her to produce in court any books, documents
or things under his or her control on which he
must testify(Rule 21, Sec. 1)..
3.L.2. Subpoena Ad Testificandum
A process directed to a person requiring him or
her to attend and to testify at the hearing or trial
of an action or at any investigation conducted by
a competent authority, or for the taking of his or
her deposition(Rule 21, Sec. 1).
112 Center for Legal Education and Research
a) The court before which the witness is
required to attend;
b) The court of the place where the deposition
is to be taken;
c) The officer or body authorized by law to do
so, in connection with an investigation; or
d) Any Justice of the Supreme Court or the
Court of Appeals in any case or investigation
pending within the Philippines (Rule 21, Sec.
2).
Others allowed by LAW (not the Rules) to
issue subpoena:
 DOJ;

 Ombudsman by RA no. 6770
 City Prosecutor
 NBI by RA No. 10867
Subpoena to a prisoner
The judge or officer shall examine and study
carefully such application to determine whether
the same is made for a valid purpose(Rule 21, Sec.
2).
Note: No prisoner sentenced to death, reclusion
perpetua, or life imprisonment, and who is
confined in any penal institution shall be brought
outside for appearance or attendance in any
court, unless authorized by the Supreme Court
ONLY(Rule 21, Sec. 2).
3.L.4. Compelling Attendance of Witnesses;
Contempt
Compelling Attendance of Witnesses
The court, upon showing of the failure of the
witness to attend and upon proof of the service
of the subpoena, may issue a warrant to arrest
the witness and bring him or her before the court
or officer where his or her attendance is required.
The cost of such warrant and seizure shall be
paid by the witness if the court finds that his or
her failure to appear was willful and without just
cause(Rule 21, Sec. 8).
Contempt
Failure to obey a subpoena without adequate
cause shall be deemed a contempt of the issuing
court. If the subpoena was not issued by a court,
the disobedience shall be punished in accordance
with the applicable law or Rule(Rule 21, Sec. 9).
Exceptions to Secs. 8 and 9
1. Viatory Right - Where the witness resides
more than 100 kilometers from his or her
residence to the place where he or she is to
testify by the ordinary course of travel; and,
2. Wherepermission of the court in which the
detained prisoner‘s case is pending was not
obtained(Rule 21, Sec. 10).
Purple Notes
Remedial Law
3.L.5. Quashing of Subpoena
A subpoena duces tecum may be quashed upon
motion promptly made and in any event before
the time specified therein(Rule 21, Sec. 4).
Grounds for Quashing Subpoena
(1) Subpoena Ad Testificandum
 Witness is not bound thereby.
 Not meritorious; or
 Not qualified to testify.
(2) Subpoena Duces Tecum
 Unreasonable and oppressive.
 Relevancy of the books, documents or
things does not appear to be prima facie
relevant to the issue.
 Person asking for the subpoena does not
advance the cost for the production of the
articles desired; or
 Subject matter or documents are not
within his power.
Note: In either case, the subpoena may be
quashed for failure to render the witness fees
and kilometrage allowed by the rules(Rule 21, Sec.
4).
3.M.COMPUTATION OF TIME (Rule 22)
How to compute time
 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 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 (Rule 22, Sec.
1).
Under Article 13 of the Civil Code, when the law
speak of years, months, days or nights, it shall be
understood that years are of 365 days each;
months, of 30 days; days, of 24 hours; and
nights, from sunset to sunrise.
If months are designated by their name, they
shall be computed by the number of days which
they respectively have.
Bar Operations C ommissions 113
 Purple Notes
Remedial Law
In computing a period, the first day shall be
excluded and the last day included.
Effect of Interruption
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 the cessation of
the cause thereof. The day of the act that caused
the interruption shall be excluded in the
computation of the period (Rule 22, Sec. 2).
3.N. MODES OF DISCOVERY
Discovery is the procedure that enables one
party in an action to obtain, before trial,
knowledge of relevant facts and of material
evidence in the possession of the adverse party
or of a witness.
It is a device employed by a party to obtain
information about relevant matters on the case
from the adverse party on preparation for the
trial (Riano, Civil Procedure, Vol. I., p. 437, 2016 ed.).
Rationale:
1. To enable the parties to obtain the fullest
possible knowledge of the issues and
evidence long before the trial, thereby
preventing surprises during trial; and,
2. To effectively shorten the period of litigation
and speed up 8(Hyatt Industrial Mfg. Corp., et
al. vs. Ley Construction and Dev. Corp., et al., G.R.
No. 147143, March 10, 2006).
 Q.What is the purpose or objective of
Discovery?
A.It is to make it possible for all the parties
to a case to learn all the materials and
relevant facts, from whoever may have
knowledge thereof, to the end that their
pleadings or motions may not suffer from
inadequacy of factual foundation and all the
relevant facts may be clearly and completely
laid before the Court, without omission or
suppression (Dasmariñas Garments, Inc. vs.
Reyes, G.R. No. 108229, August 24, 1993).
114 Center for Legal Education and Research
Discovery resorted to before answer
It is only in the exceptional or unusual case that
the need for discovery arises, or that it should be
allowed before service of answer.
Modes of discovery are intended to be cumulative
and not alternative nor mutually exclusive.
Discovery is not mandatory but failure to avail of
it carries sanctions under Rules 25 and 26.
Modes of discovery
Q: How many modes of discovery are there?
A:There are 14 modes of discovery.
1. Deposition pending action (Rule 23)
2. Deposition before action (Rule 24)
3. Deposition pending appeal (Rule 24)
4. Interrogatories to parties (Rule 25)
5. Admission by the adverse parties (Rule
26)
6. Production of documents (Rule 27)
7. Production of things (Rule 27)
8. Production of documens and things
9. Inspection of documents (Rule 27)
10. Inspection of things (Rule 27)
11. Inspection of documents and things
12. Physical examination of persons (Rule 28)
13. Mental examination of persons (Rule 28)
14. Physical and mental examination of
persons.
Note: Rule 23 is inapplicable to Criminal
Procedure.
3.N.1. Depositions (Rules 23 and 24)
3.N.1a.Meaning of deposition
 Q. What is Deposition?
A. Deposition is testimony of a witness taken
upon oral question or written interrogatories,
not in open court, but in pursuance of a
commission to take testimony issued by
court, or under a general law or court rule
on the subject, and reduce to writing and
duly authenticated, and intended to be used
in preparation and upon the trial of a civil or
a criminal prosecution.. The person who is
 Purple Notes
Remedial Law
deposed is called the deponent. The c) Depositions De Bene Esse- those taken for
deposition is conducted under oath outside purposes of a pending action (Rule 23);
of the court room, usually in one of the d) Depositions InPerpetuam Rei Memoriam -
lawyer's offices. A transcript — word for those taken to perpetuate evidence for
word account — is made of the deposition. purposes of an anticipated action or further
Testimony of [a] witness, taken in writing, proceedings in a case on appeal (Rule 24)
under oath or affirmation, before some
judicial officer in answer to questions or Deposition may be used at the trial upon hearing
interrogatories(People vs. Webb, G.R. No. of a motion or hearing of an interlocutory order.
132577, August 17, 1999).
DEPOSITIONS PENDING ACTION
 Q. What is the purpose of conducting UNDER RULE 23
depositions?
AT WHOSE
Any partyupon ex parte motion
A. Depositions are chiefly a mode of INSTANCE MAY
(Sec. 1)(n)
discovery. They are intended as a means to BE TAKEN
compel disclosure of facts resting in the WHOSE
Any person, whether a party or
TESTIMONY
knowledge of a party or other person which not (Sec. 1)
MAY BE TAKEN
are relevant in some suit or proceeding in
court. Depositions, and the other modes of  Before summons has
discovery are meant to enable a party to been served - with leave
learn all the material and relevant facts, not WHEN of court
only known to him and his witnesses but  After answer has been
also those known to the adverse party and served - without leave of
the latter's own witnesses. Depositions are court (Sec. 1)
principally made available by law to the
parties as a means of informing themselves Any party who was present or
AGAINST
represented at the taking of
of all the relevant facts; they are not WHOM
the deposition or who had due
therefore generally meant to be a substitute notice thereof (Sec. 4)
for the actual testimony in open court of a
party or witness. The deponent must, as a In the Philippines (Sec. 10):
rule, be presented for oral examination in  Judge
open court at the trial or hearing. This is a  Notary public
requirement of the rules of evidence  Any person authorized to
(Dasmariñas Garments, Inc. vs. Reyes, G.R. No. administer oath as agreed
108229, August 24, 1993). by the parties.
BEFORE WHOM
Rules on Civil Procedure can apply suppletorily in In foreign countries (Sec. 11):
 Also by persons
criminal cases. Hence, the rules on deposition
mentioned above
may apply in criminal cases. Depositions may be
 Secretary of Embassy or
taken before trial, or even during trial, upon the legation, consul-general,
discretion of the court. consul, vice-consul or
consular agent.
Depositions are intended as a means to compel
disclosure of facts resting in the knowledge of a By deposition upon oral
HOW
party or other person, which are relevant in suit examination or written
or proceeding. interrogatories.

Classification of Depositions The deposition of a person confined in prison

may be taken only by leave of court (Rule 23, Sec.
a) Deposition on Oral Examination; 1).
b) Deposition upon Written Interrogatories;

Bar Operations C ommissions 115

 Purple Notes
Remedial Law
Effect of Substitution of Parties
Substitution of parties does not affect the right to
use depositions previously taken.
When an action has been dismissed and another
action involving the same subject is afterward
brought between the same parties or their
representatives or successors-in-interest, all
depositions lawfully taken and duly filed in the
former action may be used in the latter as if
originally taken therefor(Rule 23, Sec. 5).
Effects of Taking Depositions
A party shall not be deemed to make a person his
or her own witness for any purpose by taking his
or her deposition(Rule 23, Sec. 7).
Effect of Using Depositions (Rule 23, Sec. 8)
General Rule: The introduction in evidence of
the deposition or any part thereof for any
purpose makes the deponent the witness of the
party introducing the deposition (Rule 23, Sec. 8).
Exception:The introduction in evidence of the
deposition will not the make the deponent his or
her witness:
a) If it is introduced to impeach or contradict
the witness; or,
b) If it is the deposition of the opposing party.
Rebutting Deposition
At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition,
whether introduced by him or by any other
party(Rule 23, Sec. 9).
Persons before whom deposition may be
taken (Rule 23, Secs. 10-11)
A. Within the Philippines
1) Judge.
2) Any person authorized to administer
oaths, if the parties so stipulate in
writing.
3) Notary Public.
B. Outside the Philippines
116 Center for Legal Education and Research
 On notice, before a Secretary of Embassy
or Legation, Consul General, Consul,
Vice-Consul, or consular agent of the
Philippines.
 Before such person or officer as may be
appointed by commission or under letters
rogatory.
 Any person authorized to administer
oaths, if the parties so stipulate in
writing.
 Q. What is a Commission?
A. Commission is an instrument issued by a
court of justice, or other competent
tribunal, to authorize a person to take
depositions, or do any other act by
authority of such court or tribunal
(Dasmarinas Garments, Inc. vs Reyes, G.R.
No 108229, August 24, 1993).
 Q. What is a Letters Rogatory?
A. It is an instrument sent in the name and
by the authority of a judge or court to
another, requesting the latter to cause to
be examined, upon interrogatories filed
in a cause pending before the former, a
witness who is within the jurisdiction of
the judge or court to whom such letters
are addressed.‖ (Ibid) Noteworthy x xx is
that letters rogatory may be applied for
and issued only after a commission has
been ―returned unexecuted‖ as is
apparent from Form 21 of the ―Judicial
Standard Forms‖ appended to the Rules
of Court (Dasmarinas Garments, Inc. vs
Reyes, G.R. No 108229, August 24, 1993).
Also known as letters of request, Letters
Rogatory is a document issued by one court to a
foreign court requesting it to:
a) Take evidence from a specific person within
the foreign jurisdiction or serve process on a
person whether real or artificial within the
foreign jurisdiction;
b) Return the testimony or proof of service for
use in the pending case (Black‘s Law Dictionary,
8th edition).
 Q. Is leave of court necessary for the
issuance of letters rogatory (lettes of
request)?
 Purple Notes
Remedial Law
A. Leave of court is not required when the  The notice shall state the time and place for
deposition is to be taken before a secretary taking the deposition and the name and
of embassy or legation, consul general, address of each person to be examined, if
consul, vice consul, or consular agent of the known. If the name is not known, a general
Republic of the Philippines and the description sufficient to identify him or her or
defendant‘s answer has already been served. the particular class or group to which he or
However, if the deposition is to be taken in a she belongs.
foreign country where the Philippines has no  On motion of any party upon whom the notice
secretary or embassy or legation, consul is served, the court may, for cause show,
general, consul, vice consul or consular enlarge or shorten the time(Rule 23, Sec. 15).
agent, it may be only taken before such
person or officer as may be appointed by Deposition upon Written Interrogatories
commission or under letters rogatory (Dulay
vs Dulay, G.R. No.158857, November 11, 2005).  The party desiring to take the deposition of
any person shall serve written interrogatories
upon every other party with a notice.
Commission vs Letters Rogatory  The notice shall state the name and address
(Dulay vs Dulay, G.R. No.158857, November 11, of the person who is to answer the written
2005)
interrogatories and the name or descriptive
COMMISSION LETTERS
ROGATORY
title and address of the officer before whom
To Whom Issued to a non- Issued to the the deposition is to be taken.
Issued judicial foreign appropriate  Within 10 calendar days thereafter, a party so
officer who will judicial officer of served may serve cross-interrogatories upon
directly take the the foreign the party proposing to take the deposition.
testimony. country who will  Within 5 calendar days thereafter, the party
direct somebody in proposing to take the deposition may serve a
said foreign re-direct interrogatories upon a party who has
country to take served cross-interrogatories.
down testimony.
 Within 3 calendar days after thereafter, a
Applicable Applicable rules Applicable rules of
Rules of procedure are procedure are
party may serve recross-interrogatories upon
those of the those of the the party proposing to take the
requesting court. foreign court deposition(Rule 23, Sec. 25).
requested to act. Note: Under Rule 23, Sec. 25, all questions are
When Resorted to if Resorted to if the prepared BEFORE the date of the deposition
Resorted permission of execution of the taking.
to the foreign commission is
country is given. refused in the Orders for the protection of parties and
foreign country. deponents
As to Leave of court is Leave of court is
Nessecity not necessary. necessary.
of Leave After notice is served for taking a deposition by
of Court oral examination, upon motion seasonably made
by any party or by the person to be examined
Two Modes or Ways of Taking Depositions and for good cause shown.the court in which the
Pending Action under Rule 23: action is pending may make the following orders:

1. Upon Oral Examination (Sec. 15); and, (NOW-CD2S-FJ)

2. Upon Written Interrogatories (Sec. 25)
Deposition upon Oral Examination
 The party desiring to take the deposition of
any party shall give reasonable notice in
writing to every other party to the action.
a) That the deposition shall Not be taken;
b) That the deposition may be taken only at
some Designated place other thanthat stated
in the notice;
c) That the deposition may be taken only on
Written interrogatories;

Bar Operations C ommissions 117

 Purple Notes
Remedial Law
d) That Certain matters shall not be inquired
into;
e) That the Scope of the examination shall be
held with no one present except theparties to
the action and their officers or counsel;
f) That after being sealed the deposition shall
be Opened only by order of thecourt;
g) That Secret processes, developments, or
research need not be disclosed;
h) That the Parties shall simultaneously file
specified documents or informationenclosed
in sealed envelopes to be opened as directed
by the court; or
i) The court may make any other order which
Justice requires to protect the partyor
witness from annoyance, embarrassment, or
oppression(Rule 23, Sec. 16).
 Q. What stage/s of proceeding can a
deposition be taken?
A. There is no rule that limits deposition-
taking only to the period of pre-trial or before
it; no prohibition against the taking of
depositions after pre-trial. Indeed, the law
authorizes the taking of depositions of
witnesses before or after an appeal is taken
from the judgment of a Regional Trial Court
―to perpetuate their testimony for use in the
event of further proceedings in the said
court‖ (Rule 134, Rules of Court), and even
during the process of execution of a final and
executory judgment (Dasmarinas Garments vs.
Reyes, G.R. No. 108229, August 24, 1993).
 Q. What is the effect if the deposition-taking
will take place in a foreign country?
A.That the deposition-taking will take place
in ―a foreign jurisdiction not recognized by
the Philippines x xx is inconsequential. What
matters is that the deposition is taken before
a Philippine official acting by authority of the
Philippine Department of Foreign Affairs and
in virtue of a commission duly issued by the
Philippine Court in which the action is
pending, and in accordance, moreover, with
the provisions of the Philippine Rules of Court
pursuant to which opportunity for cross-
examination of the deponent will be fully
accorded to the adverse party (Regalado. Vol.
1. 8th ed. p. 330).
118 Center for Legal Education and Research
DEPOSITIONS BEFORE ACTION UNDER
RULE 24
―Deposition in Perpetuam Rei Memoriam‖
or Perpetuation of Testimony
Who Files: Any person who desires to
perpetuate his or her own testimony or that of
another person.
Scope: Any matter that may be cognizable in
any court of the Philippines.
Venue: RTC of the place of the residence of any
expected adverse party, because this is an action
incapable of pecuniary estimation.
Purpose: To preserve the testimony of witnesses
for probable use in a future case or in the event
of further proceedings in the same case
(Regalado, Vol. 1, 8th ed.).
Procedure
1. The petitioner files a verified petition.
2. The petitioner shall serve a notice upon each
person named in the petition as an expected
adverse party, together with a copy of the
petition(Rule 24, Sec. 3).
3. The petition shall state that the petitioner will
apply to the court, at a time and place named
therein, for the order described in the
petition(Rule 24, Sec. 3).
4. At least 20 calendar days before the date of
the hearing, the court shall cause notice
thereof to be served on the parties and
prospective deponents in the manner provided
for service of summons(Rule 24, Sec. 3).
5. If the court is satisfied that the perpetuation
of the testimony may prevent a failure or
delay of justice, it shall make an order:
 Designating or describing the persons
whose deposition may be taken; and,
 Specifying the subject matter of the
examination or written interrogatories(Rule
24, Sec. 4).
6. Depositions may then be taken in accordance
with Rule 23 before the hearing(Rule 24, Sec.
4).

Contents of the Verified Petition
The petition shall be entitled in the name of the
petitioner and shall show: (AS-FEE)
a. that the petitioner Expects to be a party to an
action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
b. the Subject matter of the expected action and
his or her interest therein;
c. the Facts which he or she desires to establish
by the proposed testimony and his or her
reasons for desiring to perpetuate it;
d. the names or a description of the persons he
or she expects will be Adverse parties and
their addresses so far as known; and,
e. the names and addresses of the persons to be
Examined and the substance of the testimony
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to
take the depositions of the persons to be
examined named in the petition for the
purpose of perpetuating their testimony(Rule
24, Sec. 2).
Notes:
 Deposition is taken conditionally, and may be
used in trial only in case the deponent is not
available.
 It is considered a judicial admission although
it does not form part of the records of the
case yet.
 The deposition taken does not prove the
existence of any right. The testimony is not
conclusive as to the existence of such right,
nor of the facts to which they relate as it may
be controverted at trial in the same manner as
though no perpetuation of testimony was ever
had.
 If there is no objection to its taking and even
if the deponent did not testify at the hearing,
the perpetuated testimony constitutes prima
facie proof of facts referred to in the
deposition (Regalado. Vol. 1. 8th ed. p. 330).
DEPOSITIONS PENDING APPEAL UNDER
RULE 24, SEC. 7
Purple Notes
Remedial Law
When Applicable
 If an appeal has been taken from a judgment
of a court, including the CA in proper cases;
or,
 Before the taking of an appeal if the time
therefor has not expired.
Use of Deposition Pending Appeal(Rule 24,
Sec 6 & 7)
a) To allow appellate court to admit evidence;
b) Retrial;
c) New Trial;
d) Remand for Further Proceedings.
Purpose: To perpetuate the testimony for use in
the event of further proceedings in the said
court(Rule 24, Sec.7)
Where Taken: In the court in which the
judgment (which must be final BUT not
executory) was rendered(Rule 24, Sec.7)
How Taken: The party who desires to
perpetuate the testimony may make a motion in
the said court for leave to take deposition, upon
the same notice and service as if the action was
pending therein(Rule 24, Sec.4).
Contents of the Notice (NSR)
a) Names and addresses of the persons to be
examined;
b) The Substance of the testimony which is
expected to be elicited from each; and,
c) The Reason for perpetuating testimony.
If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
deposition to be taken.
The depositions may then be taken and used in
the same manner and under the same conditions
as are prescribed in these Rules for depositions
taken in pending actions.
3.N.1b. Uses; scope of examination
Scope of inquiry in deposition
Bar Operations C ommissions 119
 Purple Notes
Remedial Law
1. Matters which are relevant to the subject of
the pending action;
2. Matters which are not privileged; and,
3. Matters that are not restricted by a protective
order.
Depositions are not generally meant to substitute
for the actual testimony in open court of a party
or witness.
The deponent must be presented for oral
examination in open court during trial. Otherwise,
any deposition offered to prove the facts at the
trial of the case may be opposed and excluded as
hearsay, except in specific instances authorized
by the rules under Sec. 4, Rule 23.
Scope of Examination of Depositions
Pending Action (Rule 23, Sec. 2)
General Rule: the deponent may be examined
regarding any matter which is:
a) not privileged
b) relevant to the subject of the pending action,
whether relating to the claim or defense of
any other party, including the Existence,
Description, Nature, Custody, Condition, and
Location of any books, documents, or other
tangible things and the Identity and location
of persons having knowledge of relevant
facts.(DENC2IL)
c) not restricted by a protective order.
Exception: Unless otherwise ordered by the
court as provided by Sec. 16 or 18, Rule 23.
Use of Deposition Pending Action
Who Use of Deposition
Any party. For contradicting or for impeaching the
testimony of deponent as a BEFORE Action
witness[Rule 23, Sec.4 (a)].
Adverse For any purpose, when deponent was
party. an officer, director, or managing agent
of a public or private corporation,
partnership, or association which is a
party at the time the deposition was
taken[Rule 23, Sec.4 (b)].
Any party. For any purpose, if the court finds that
the:(DROUSE)
1. Witness is Dead; or
2. Witness Resides at a distance
more than 100 kilometers from the
120 Center for Legal Education and Research
Who Use of Deposition
place of trial or hearing, unless it
appears that his absence was
procured by the party offering the
deposition, or
3. Out of the Philippines, unless it
appears thathis absence was
procured by the party offering the
deposition; or
4. Witness is Unable to testify
because of age, sickness, infirmity,
or imprisonment; or
5. That the party offering the
deposition has been unable to
procure the attendance of
witnesses by Subpoena; or
6. Exceptional circumstances exist to
make it desirable to allow the use
of the deposition, in the interest of
justice and with due regard to the
importance of presenting the
testimony of witnesses orally in
open court[Rule 23, Sec.4 (c)].
Adverse When a party offers in evidence only a
party. part of the deposition:
Any party.
To require party offering to introduce
all of it which is relevant to the part
introduced[Rule 23, Sec.4 (d)].
Adverse To introduce any other parts, when the
party. party using the deposition is offering
Any party. only a part of it in evidence[Rule 23,
Sec.4 (d)].
Use of deposition under Rule 24
If a deposition to perpetuate testimony is
takenunder this Rule, or if, although not so taken,
it would be admissible in evidence, itmay be used
in any action involving the same subject matter
subsequently broughtin accordance with the
provisions of Sections 4 and 5 of Rule 23.
Deposition PENDING Action vs. Deposition
DEPOSITION DEPOSITION BEFORE
PENDING ACTION ACTION
(Rule 23) (Rule 24)
Pending action. No Action.
Terminated in the trial
court but no entry of
judgment.
Initiated thru notice. By verified petition.

3.N.1c.When may objections to
admissibility be made
Subject to the provisions of section 29 of this
Rule, objection may be made at the trial or
hearing to receiving in evidence any deposition or
part thereof for any reason which would require
the exclusion of the evidence if the witness were
then present and testifying(Rule 23, Sec. 6).
Effects of Errors and Irregularities in
Depositions (Rule 23, Sec. 29)
As to notice – All errors and irregularities in the
notice for taking a deposition are waived unless
written objection is promptly served upon the
party giving the notice.
As to disqualification of deposition officer –
Objection to taking a deposition because of
disqualification of the officer before whom it is to
be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as
the disqualification becomes known or could be
discovered with reasonable diligence.
As to competency or relevancy of evidence
– Objections to the competency of witness or the
competency, relevancy, or materiality of
testimony are not waived by failure to make
them before or during the taking of the
deposition, unless the ground, of the objection is
one which might have been obviated or removed
if presented at that time.
As to oral examination and other
particulars – Errors and irregularities occurring
at the oral examination in the manner of taking
the deposition in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at the
taking of the deposition.
As to form of written interrogatories -
Objections to the form of written interrogatories
submitted under Secs. 25 and 26 are waived
unless served in writing upon the party
propounding them within the time allowed for
serving succeeding cross or other interrogatories
Purple Notes
Remedial Law
and within 3 days after service of the last
interrogatories authorized.
As to manner of preparation– Errors and
irregularities in the manner in which the
testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the
officer under Secs. 17, 19, 20 and 26 are waived
unless a motion to suppress the deposition or
some part thereof is made with reasonable
promptness after such defect is, or with due
diligence might have been, ascertained.
3.N.1d. When may taking of deposition be
terminated or its scope limited
Motion to terminate or limit the
examination
When Proper
1. At any time during the taking of the
deposition;
2. On motion or petition of any party or of the
deponent; and,
3. Upon a showing that the examination is
being conducted in bad faith or in such
manner as unreasonably to annoy,
embarrass, or oppress the deponent or party
The court in which the action is pending or the
Regional Trial Court of the place where the
deposition is being taken may order the officer
conducting the examination to cease forthwith
from taking the deposition, or may limit the
scope and manner of the taking of the
deposition, as provided in Section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order
of the court in which the action is pending.
Upon demand of the objecting party or deponent,
the taking of the deposition shall be suspended
for the time necessary to make a notice for an
order. In granting or refusing such order, the
court may impose upon either party or upon the
witness the requirement to pay such costs or
expenses as the court may deem reasonable(Rule
23, Sec. 18).
Bar Operations C ommissions 121
 Purple Notes
Remedial Law
3.N.2. Written Interrogatories to Adverse
Parties
A party desiring to take relevant facts from any
adverse party, upon ex parte motion, shall file
and serve upon the latter written interrogatories
to be answered by the party served.
If the person served is a private or public
corporation, partnership or association, then it
will be answered by any officer competent to
testify in its behalf (Rule 25, Sec. 1).
How served
 With leave of court: Before answer has
been served(Rule 23, Sec. 1).
 Without leave of court: Only after answer
has been served for the first set of
interrogatories(Rule 23, Sec. 1).
Notes:
 No party may, without leave of court, serve
more than one set of interrogatories to be
answered by the same party (Rule 25, Sec. 4).
 Written interrogatories and the answers
thereto must both be filed and served.
Answers may constitute judicial
admissions(Regalado, Remedial Law
Compendium, Vol. II, 9th., Rev. Ed P.686).
Interrogatories may embrace any relevant
matter, UNLESS the same is privileged or
prohibited by a court order(Araneta, Inc. vs.
Rodas, G.R. No. L-2363 September 23, 1948).
 Since answers to interrogatories may be used
in the same manner as a deposition, such
may also be used as a basis for Summary
Judgment under Rule 35(Rule 25, Sec. 5; Rule
23, Sec. 4).
Scope of Interrogatories
Any matters that can be inquired into under
Section 2 of Rule 23, and the answers may be
used for the same purposes provided in Sec. 4 of
Rule 23.
General Rule: Interrogatories may relate to any
matter which is:
a) not privileged
122 Center for Legal Education and Research
b) relevant to the pending action, whether
relating to the claim or defense of any other
party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things
and the identity and location of persons
having knowledge of relevant facts.
c) not restricted by a protective order.
Exception: Unless otherwise ordered by the
court as provided by Sec. 16 or 18, Rule 23.
Use of Interrogatories (Rule 25, Sec. 5)
The answers to interrogatories may be used for
the same purposes provided in Section 4 of Rule
23:
1. By any party, to contradict or impeach the
testimony of deponent as a witness.
2. By an adverse party, for any purpose, when
deponent was an officer, director, or
managing agent of a public or private
corporation, partnership, or association
which is a party at the time the deposition
was taken.
3. By any party, for any purpose, when the
court finds that:
a) The witness is dead; or
b) The witness resides at a distance more
than 100 kilometers from the place of
trial or hearing, or is out of the
Philippines, or
c) The witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment; or
d) The witness has not been subpoenaed,
or
e) Exceptional circumstances exist to
make it desirable to allow the use of
the deposition, in the interest of justice
and with due regard to the importance
of presenting the testimony of
witnesses orally in open court
f) When a party offers in evidence only a
part of the deposition:
1) By an adverse party, to require
party offering to introduce all of it
that is relevant to the part
introduced.
2) To introduce any other parts, when
the party using the deposition is
 Purple Notes
Remedial Law
offering only a part of it in DEPOSITION UPON
INTERROGATORIES TO
evidence. WRITTEN
PARTIES
Answer to Written Interrogatories (Rule 25, INTERROGATORIES
(Rule 25)
Sec. 2) (Rule 23)
party or ordinary party.
witness.
The interrogatories shall be answered:
Covers direct, cross, Covers only one set of
redirect, re-cross interrogatories.
1. Fully in writing; and, interrogatories.
2. Signed and sworn to by the person making Proceeded upon with No intervention of such an
them. the intervention of the officer. Interrogatories are
officer authorized by directed served to the
General Rule: Copy of the answers shall be filed the court to take party himself.
and served on the party submitting the deposition.
interrogatories within 15 calendar days after No fixed time to 15 days to answer unless
service thereof. answer. extended or reduced by
the Court
Binding to Binding to the parties
Exception: When the court, on motion and for
All those present only.
good cause shown, extends or shortens the time. during the deposition.

Objections to Interrogatories 3.N.2a. Effect of Failure to Serve Written

Interrogatories(Rule 25, Sec. 6)
Objections may be presented to the court within
10 calendar days after the service thereof, with General Rule: A party not served with written
notice as in case of motion(Rule 25, Sec. 3). interrogatories may NOT be compelled by the
adverse party to give:
Answers shall be deferred until the objections are
resolved which shall be at as early a time as is a) Testimony in open court; or,
practicable(Rule 25, Sec. 3). b) Deposition pending appeal.
Interrogatories vs. Bill of Particulars(Riano,  Q. What is the purpose of the rule?
Civil Procedure Vol. I, 2011, P. 468)
A. One of the purposes of the above rule is
INTERROGATORIES BILL OF PARTICULARS to prevent fishing expeditions and needless
A party may properly A party may properly seek delays; it is there to maintain order and
seek disclosure of disclosure only of matter facilitate the conduct of trial. It will be
matter of proof which which define the issues presumed that a party who does not serve
may later be made a and become part of the written interrogatories on the adverse party
part of the records as pleadings. beforehand will most likely be unable to elicit
evidence. facts useful to its case if it later opts to call
Not directed to a Designed to clarify the adverse party to the witness stand as its
particular pleading. ambiguties in a pleading
witness. Instead, the process could be
Instead, they seek to or to state with sufficient
disclose all material definiteness allegations in treated as a fishing expedition or an attempt
and relevant facts from a pleading. Hence, it is a at delaying the proceedings; it produces no
a party. direct pleading. significant result that a prior written
interrogatories might bring (Sps. Afulugencia
Deposition Upon Written Interrogatories vs. Metrobank, G.R. No. 185145, February 5,
vs. Interrogatories to Parties 2014).

DEPOSITION UPON Exception: Unless thereafter allowed by the

INTERROGATORIES TO court for good cause shown and to prevent a
WRITTEN
PARTIES failure of justice.
INTERROGATORIES
(Rule 25)
(Rule 23)
Deponent may be a Deponent must be a

Bar Operations C ommissions 123

 Purple Notes
Remedial Law
3.N.3. Request ForAdmission Distinguished from Written Interrogatories
Admission by Adverse Party
WRITTEN ADMISSION BY
This mode of discovery contemplates INTERROGATORIES ADVERSE PARTY
interrogatories seeking clarification in order to (Rule 25) (Rule 26)
Adverse party or Adverse party only.
determine the truth or falsity of the allegation in
witness.
a pleading(Riano, Civil Procedure Vol. I, 2011, P.
NOT required to deny Required to admit or deny
470). or admit anything. anything.
Written request must Written request must be
Purpose: To expedite trial and relieve the parties be filed in court and filed in court and served
of the costs of proving facts which will not be served on the adverse on the adverse party.
disputed on trial and the truth of which can be party.
ascertained by reasonable inquiry(Allied Agri- Must be objected to Must be objected to within
Business Dev‘t., Inc. vs. CA, et al., G.R. No. 118438, within 10 days. 15 days.
December 14, 1998).
3.N.3a. Implied Admission by Adverse Party
Request for Admission, When Filed and (Rule 26, Sec. 2)
Served: At any time after issues have been
joined. General Rule: Each of the matters of which an
admission is requested shall be deemed
Scope of Request for Admission admitted.

a) Admission of the genuineness of any material
and relevant document (not actionable
documents) described in and exhibited with
the request; or,
b) Admission of the truth of any material and
relevant matter of fact set forth in the
request(Rule 26, Sec. 1).
A matter of fact not related to any
documents may be presented to the other
party for admission or denial.
Notes:
 Actionable Document under Rule 8 is a written
instrument upon which the action or defense
is based.
 Documents sought to be admitted under the
mode of discovery under Rule 26 are other
written instruments where action or defense
are not based(Allied Agri-Business Dev‘t. Co., Inc.
vs. CA, et al., G.R. No. 118438, December 4, 1998;
Rule 26, Sec. 2).
A request for admission is proper when the
genuineness of an evidentiary document is
sought to be admitted. If not denied under oath
in accordance with Section 2, its genuineness is
deemed admitted(Allied Agri-Business Dev‘t. Co., Inc.
vs. CA, et al., G.R. No. 118438, December 4, 1998).
Exception: If, within a period designated in the
request or within such further time as the court
may allow on motion, the party to whom the
request is directed files and serves upon the
party requesting the admission, a sworn
statement:
a) denying specifically the matters of which an
admission is requested; or,
b) setting forth in detail the reasons why he or
she cannot truthfully either admit or deny
those matters.
Note: The period designated in the request shall
not be less than fifteen (15) calendar days after
service thereforewithinsuch further time as the
court may allow on motion.
Objections to any request for admission
They shall be submitted to the court by the party
requested within the period for and prior to the
filing of his or her sworn statement as
contemplated in the preceding paragraph and his
or her compliance therewith shall be deferred
until such objections are resolved, which
resolution shall be made as early as
practicable(Rule 26, Sec. 2).

124 Center for Legal Education and Research


Options of the Party Served (Deferment of
Compliance)
Upon service of request for admission, the party
served may do any of the following acts:
a) He may admit each of the matters of which an
admission is requested, in which case, he
need not file an answer;
b) He may admit the truth of the matters of
which admission is requested by serving upon
the party requesting a written admission of
such matters;
c) He may file a sworn statement denying
specifically the matter of which an admission
is requested; or,
d) He may file a sworn statement setting forth in
detail the reasons why he cannot truthfully
either admit or deny the matters of which an
admission is requested (Allied Agri-business
Development Co., Inc. vs. CA G.R. No. 118438,
December 4, 1998).
3.N.3b. Consequences of Failure to Answer
Request for Admission
Summary judgment may be asked when a
request and order for admission was never
answered.
It is a settled rule that summary judgment may
be granted if the facts which stand admitted by
reason of a party‘s failure to deny statements
contained in a request for admission show that
no material issue of fact exists. By its failure to
answer the other party‘s request for admission,
petitioner has admitted all the material facts
necessary for judgment against itself.
 Q. What is the effect of failure to answer
request for admission?
A. If there is a request for admission, and
there is no answer to such request, a motion
for summary judgment is proper because
facts alleged therein are deemed admitted,
hence no issues(Allied Agri-business
Development Co., Inc. vs. CA, G.R. No. 118438,
December 4, 1998).
Purple Notes
Remedial Law
3.N.3c. Effect of Admission
An admission under this mode of discovery is for
the purpose of the pending action only shall not
constitute anadmission by him or her for any
other purpose nor may the same be used against
himor her in any other proceeding(Rule 26, Sec.
3).
3.N.3d. Effect of Failure to File and Serve
Request For Admission (Rule 26, Sec. 5)
General Rule: The party who fails to file and
serve a request for admission on the adverse
party shall NOT be permitted to present evidence
on such material and relevant facts at issue
which are, or ought to be, within the personal
knowledge of the adverse party.
Exception: Unless otherwise allowed by the
court for good cause shown and to prevent a
failure of justice.
Note: Within one day from receipt of the
complaint, the rule mandates not only the
preparation of the summons but also the
issuance of an order requiring the parties to avail
of interrogatories to parties under Rule 25 and
request for admission by adverse party under
Rule 26. The paties, however, may use, at their
discretion, depositions under Rule 23 or other
measures under Rule 27 and 29 within five days
from the filing of the answer (A.M. No. 03-1-09-SC,
IA, 1, 1.1, 1.2, July 14, 2004).
3.N.4. Production or Inspection of
Documents or Things
Purpose: The purpose of this mode of discovery
is to allow a party to seek an order from the
court in which the action is pending to:
a) order any party to produce and permit the
inspection and copying or photographing, by
or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which
constitute or contain evidence
material to any matter involved in the action
and which are in his or her possession,
custody or control; or
Bar Operations C ommissions 125
 Purple Notes
Remedial Law
b) order any party to permit entry upon The test to be applied in determining the
designated land or other property in his or relevancy of the documents and sufficiency of
her possession or control for the purpose of their description is one of reasonableness and
inspecting, measuring, surveying, or practicality(Lime Corporation of the Philippines vs.
photographing the property or any Moran GR No. 40759, Dec 20, 1933 ).
designated relevant object or operation
thereon (Rule 27, Sec. 1). Production or inspection of documents
orthings under Rule 27 vs. Subpoena duces
Applicability: Applicable to a pending action Tecum
and the documents or things subject of the PRODUCTION OF SUBPOENA DUCES
motion must be only those within the possession, DOCUMENTS TECUM
control, or custody of a party(Rule 27, Sec. 1). Essentially a mode of Means of compelling
discovery. production of evidence.
Note: Production of documents affords more Limited to the parties May be directed to a
to the action(Rule 27, person whether a party or
opportunity for discovery than a subpoena duces Sec. 1). not(Rule 21, Sec. 1)..
tecum because in the latter, the documents are The order under this May be issued upon an ex
brought to the court for the first time on the date rule is issued only parte application.
of the scheduled trial wherein such documents upon motion with
are required to be procured. notice to adverse
party.
 Q. Are privileged document or things
covered by production or inspection of 3.N.5. Physical and MentalExaminationof
document or things under rule 27? Persons

A.A motion for production or inspection of When examination may be ordered

documents or things under Rule 27 is
subject to the requirement that the
document or things should not be privileged
(Air Philippines vs. Pennswell, Inc., G.R. No.
172835, December 13, 2007).
Requisites of Production or Inspection of
Documents or Things: (MPED-N2)
In an action in which the mental or physical
condition of a party is in controversy, the court in
which the action is pending may in its discretion
order him or her to submit to a physical or
mentalexamination by a physician(Rule 28, Sec. 1).
Notes:

1. A Motion must be filed by a party showing  This applies only to parties, NOT witnesses.
good cause thereof;  Since the results of the examination are
2. Notice of the motion must be given to all intended to be made public, the same are not
other parties; covered by the physician-patient privilege
3. The motion must sufficiently Describe the under Rule 130, Sec. 24(b) of the ROC.
documents or things sought to be produced  Under this rule, the examining physician
or inspected; becomes essentially an officer of the court
4. The documents or things sought to be ordering the examination.
produced or inspected must constitute or
contain Evidence material to the pending Order for Examination
action;
5. The document or thing sought to be The order for examination may be made
produced or inspected must Not be only:(MGNS)
privileged; and
6. The document or thing sought to be a. on Motion;
produced or inspected must be in the b. for Good cause shown; and,
Possession of the adverse party or, at least, c. upon Notice to the party to be examined and
under his control. to all other parties.

126 Center for Legal Education and Research

 Purple Notes
Remedial Law
d. The notice shall Specify the time, place, Consequences of Refusal to Comply with
manner, conditions and scope of the the Modes of Discovery
examination and the person or persons by
whom it is to be made (Rule 28, Sec. 2). Refusal Effects
Refusal to (a) The court may, upon proper
Waiver of Privilege answer any application, shall order the
question upon deponent or refusing party to
oral answer the question or
Where the party examined requests and obtains examination. interrogatory (Rule 29, Sec. 1).
a report on the results of the examination:
A refusal to answer after being
a. He is obliged to furnish the other party a copy directed by the court may be
of the report of any previous or subsequent considered as a contempt of court
examination of the same physical and mental (Rule 29, Sec. 2).
condition; and
If the refusal is unjustified, the
b. He waives any privilege he may have in that
court may order the deponent, a
action or any other involving the same party, or the counsel advising the
controversies regarding the testimony of any refusal, or both of them, to pay
other person who has so examined him or the proponent the amount of
may thereafter examine him(Rule 28, Sec. 4). reasonable expenses incurred in
obtaining the order, including
3.N.6. CONSEQUENCES OF REFUSAL TO attorney‘s fees (Rule 29, Sec. 1).
COMPLY WITH MODES OF DISCOVERY
(b) If the application for an order
to compel a deponent to answer is
Sanctions:
denied because of the absence of
a substantial justification, the court
1. Those which are sought to be established are may require the proponent or the
deemed established; counsel advising the application, or
2. Contempt; both of them, to pay
3. Payment of reasonable fees; to the refusing party or deponent
4. The matter regarding which the questions the amount of reasonable
were asked, character or description of land, expenses incurred in opposing the
et al., be taken to be in accordance with the application, including attorney‘s
fees (Rule 29, Sec. 1).
claim of the party obtaining the order;
5. Prohibition on the refusing party to produce
Refusal to (a) The court may order that the
evidence, support or oppose the designated answer matters regarding which the
claims or defenses; designated or questions were asked shall be
6. Striking out pleadings, order the dismissal of particular taken as established for purposes
the action, or stay the action until compliance, questions or of the action in accordance with
or to render judgment by default; and, refusal to the claim of the party obtaining
7. Order the arrest of the refusing party except produce them (Rule 29, Sec. 3[a]).
in case of physical and mental examination. documents or
things or to (b) The court may issue an order
submit to refusing to allow the disobedient
 Q. May a party avail multiple modes of
physical or party to refuse or support
discovery? mental designated claims or defenses or
examination prohibiting him from introducing in
A.Availment of one mode of discovery will evidence designated documents or
not bar the party from obtaining another things or items of testimony, or
mode of discovery(Fortune Corp vs. C.A, G.R. from introducing evidence of
No. 108119, January 19, 1994). physical or mental condition (Rule
29, Sec. 3[b]).
Note: The only exception where order of default
is not preceded by a motion to declare in default (c) The court may issue an order
striking out pleadings or parts
is failure to comply with the modes of discovery.

Bar Operations C ommissions 127

 Purple Notes
Remedial Law
thereof, or staying further
proceedings until the order is
obeyed, or dismissing the action or
proceeding or any part thereof, or
rendering a judgment by default
against the disobedient party (Rule
29, Sec. 3[c]).
(d) The court may direct the arrest
of any party or agent of a party for
disobeying any of the orders of the
court, except an order to submit to
a physical or mental examination
(Rule 29, Sec. 3[d]).
Refusal to be A refusal of a party to be sworn
sworn after being directed by the court
may be considered as contempt of
court (Rule 29, Sec. 2).
Refusal to If a party refuses to admit the
admit genuineness of any document or
the truth of any matter of fact and
serves a sworn denial thereof and
if the other party later on proves
the genuineness of the document
or the truth of such matter of fact,
the court upon proper application,
may order the former to pay the
reasonable expenses in making
such proof, including attorney‘s
fees (Rule 29, Sec. 4).
Failure to 1. The court may:
attend (a) strike out all or any part of the
depositions or pleading of that party, or
to serve
answers to (b)dismiss the action or proceeding
interrogatories. or any part thereof; or
(c) enter a judgment by default
against that party, and in its
discretion;
(d) order him to pay reasonable
expenses incurred by the other,
including attorney‘s fees (Rule 29,
Sec. 5).
2. The consequences under Sec. 5
of Rule 29 will apply if a party
refuses to answer the whole set of
written interrogatories, and not
just a particular question. Where
the party upon whom the written
interrogatories is served, refuses
to answer a particular question in
the set of written interrogatories
128 Center for Legal Education and Research
and despite an order compelling
him to answer the particular
question, still refuses to obey the
order, Sec. 3(c) of Rule 29 will
apply (Zepeda vs. China Banking
Corporation, G.R. No. 172175, October
9, 2006).
3.O. TRIAL
Trial is the judicial process of investigating and
determining the legal controversies between or
among the parties.
During the trial, the parties present their
respective evidence of their claims and defenses
which shall constitute the bases for the judgment
of the court (Riano, Civil Procedure Vol II, 2016 ed.,
P458).
 Q. When shall the period of the trial be
terminated?
A.Jurisprudence holds that the period of the
trial terminates when the judgment
begins(Acosta vs. People, G.R. No. L-17427, July
31, 1962).
General Rule: When an issue exists, trial is
necessary. Decisions should not be rendered
without trial.
Exceptions:
1. Judgment on the pleading(Rule 34)
2. Summary judgment where there is no
genuine issue(Rule 35)
3. Judgment on compromise(Rule 18; Art. 2028,
NCC)
4. Judgment by confession(Rule 30, Sec. 6)
5. Dismissal with prejudice(Rule 16, Sec. 5; Rule
17, Sec. 3; Rule 7, Sec. 5)
6. Cases under Rules on Summary Procedure
7. Cases under Rules on Small Claims
3.O.1. Adjournment and Postponements
Adjournment
General Rule:A court has the power to adjourn
trial from day to day, and to any stated time, as
the expeditious and convenient transaction of
business may require(Rule 30, Sec. 2).

Exception: The court has no power to adjourn a
trial for a period longer than one (1) month for
each adjournment, nor more than three (3)
months in all.
Exception to the Exception:When authorized
in writing by the Court Administrator of the
Supreme Court(Rule 30, Sec. 2).
Note:The party who caused the postponement is
warned that the presentation of its evidence
must still be terminated on the remaining dates
previously agreed upon(Rule 30, Sec. 2a).
Postponement
A deferment or continuance of a date of a trial,
hearing or other court appearance to a later fixed
date by order of the court, or upon a stipulation
(legal agreement) by the attorneys and approved
by the court or (where local rules permit) by the
clerk of the court.
 Q. Is Postponement a matter of right?
A. No. A motion for postponement is a
privilege and not a right(Vergara vs Otadoy Jr.
G.R No. 192320,April 4, 2016).It is addressed to
the sound discretion of the court (Garces vs.
ValenzuelaG.R. No. L-53487, May 25, 1981).
The Constitution guarantees the right of
persons against unreasonable delay in the
disposition of cases before all judicial, quasi-
judicial or administrative bodies. Judges play
an active role in ensuring that cases are
resolved with speed and dispatch so as not to
defeat the cause of the litigants. The
mandatory continuous trial system was
adopted precisely to minimize delay in the
process and expedite the resolution of cases
in the trial courts by holding trials on
scheduled dates without needless
postponements and terminating the entire
proceedings within ninety days from the initial
hearing. The need for speedy administration
of justice cannot be ignored. Excessive delay
in the disposition of cases renders the rights
of people guaranteed by various legislations
inutile (Matias vs. Plan, AM No. MTJ-98-1159,
August 3, 1998)
Purple Notes
Remedial Law
3.O.2 Requisites of Motion to Postpone
Trial
3.O.2a. For absence of evidence(Deleted in
A.M. No. 19-10-20-SC) (n)
3.O.2b. ForIllness of Party or Counsel:(Rule
30, Sec. 4)
1. Motion for postponement stating the grounds
relied upon.
2. Affidavit or sworn certificationshowing:
 That the presence of such party or counsel
at the trial is indispensable; and,
 The character of his illness is such as to
render non-attendance excusable(Rule 30,
Sec. 4).
Every civil action or proceeding shall be
suspended:
 If willingness to discuss a possible
compromise is expressed by one or both
parties; or,
 If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused the
offer (Art. 2030, Civil Code).
3.O.3. Agreed Statement of Facts
General Rule:The parties may agree, inwriting,
upon the facts involved in the litigation, and
submit the case for judgmenton the facts agreed
upon, without the introduction of evidence (Rule
30, Sec. 7).
Exception:If the parties agree only on some of
the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall
prescribe(Rule 30, Sec. 7).
Also known as STIPULATION OF FACTS and is
among the purposes of a pre-trial.
Agreed Statement of Facts is conclusive on the
parties as well as on the court. Neither of the
parties may withdraw from the agreements, nor
may the court ignore the same.
The parties may also stipulate verbally in open
court. Such stipulations are permitted by the
Bar Operations C ommissions 129
 Purple Notes
Remedial Law
court on good cause shown. Judgment based on
a compromise agreement is executory and non-
appealable.
The counsels cannot stipulate on what their
respective evidence consists of and ask that
judgment be rendered on the basis of such
stipulation.
Stipulation of Facts are not permitted in actions
for annulment of marriage, legal separation, and
declaration of nullity of marriage(Family Code, Art.
48).
 Q. What is the effect of stipulation of facts?
A. Facts stipulated by the parties need not be
proven. It cannot be contradicted by
evidence to the contrary, and it is conclusive
upon the parties, unless it is shown that the
admission was made through a palpable
mistake (Bunag vs Court of Appeals, G.R. No. L-
39013, 1988).
3.O.4. Order of Trial (now Rule 30, Sec. 5 under
A.M. No. 19-10-20-SC)
Subject to the provisions of section 2 of Rule 31,
and unless the court for special reasons
otherwise directs, the trial shall be limited to the
issues stated in the pre-trial order and shall
proceed as follows:
a. The plaintiff shall adduce evidence in support
of his or hercomplaint;
b. The defendant shall then adduce evidence in
support of his or her defense, counterclaim,
cross-claim and third-party complaints;
c. The third-party defendant if any, shall adduce
evidence of his or her defense, counterclaim,
cross-claim and fourth-party complaint;
d. The fourth-party, and so forth, if any, shall
adduce evidence of the material facts pleaded
by them;
e. The parties against whom any counterclaim or
cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the
order to be prescribed by the court;
f. The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
upon their original case; and
130 Center for Legal Education and Research
g. Upon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to argue or
to submit their respective memoranda or any
further pleadings.
Note:If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the court
shall determine the relative order of presentation
of their evidence.
 Q. What is the rule on Reverse Order of
Trial?
A. As a rule, plaintiff opens the trial.
However, where the answers of the
defendant admitted the obligation stated in
the complaint, although special defenses
were pleaded, the plaintiff has every right to
insist that it was for the defendant to come
up with evidence in support of his special
defenses (Yu vs Mapayo, G.R. No. L-29742,
March 29, 1972).
If the answer admits the defendant‘s obligation
as alleged in the complaint but special defenses
were alleged, the plaintiff does not have to
present evidence since judicial admissions do not
require proof and it should be the defendant who
should forthwith present evidence in support of
his special defenses.
Additional evidence may be offered at the
rebuttal stage if it was newly discovered
evidence, or omitted through mistake or
inadvertence or where the purpose is to correct
evidence previously offered, subject to the
discretion of the court. (Heirs of Santioque vs. Heirs
of Calma, GR. No. 160832, October 27, 2006)
What is a ―HOT TUB‖ HEARING?
In a "hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same
time to explain each of their points in a
discussion with a professional colleague. The
objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-
examination and increased emphasis on
professional dialogue, and swifter identification of
the critical areas of disagreement between the
experts [International Service for the Acquisition of

Agri-Biotech Applications, Inc. vs. Greenpeace
Southeast Asia (Philippines), G.R. No. 209271,
December 08, 2015].
All trials upon merits shall be conducted in open
court and so far as convenient in a regular
courtroom. All other acts or proceedings may be
done or conducted by a judge in chambers,
without the attendance of the clerk or other court
officials.
Oral offer of exhibits
The offer of evidence, the comment or objection
thereto, and the court ruling shall be made orally
in accordance with Sections 34 to 40 of Rule
132(Rule 30, Sec. 6).(n)
3.O.5. Consolidation or Severance
What is Consolidation
Consolidationis the act or process of uniting
several actions into one trial and judgment, by
order of a court, where all the actions are
between the same parties, pending in the same
court, and involving substantially the same
subject matter, issues and defenses( PAL vs.
Teodoro, Sr. G.R. No. L-6698 August 30, 1955 ).
When actions involving a common question of
law or fact are pending before the court, it may
order a joint hearing or trial of any or all the
matters in issue in the actions(Rule 31, Sec. 1). In
consolidation, there must be at least two cases.
Consolidation is a procedural device to aid the
court in deciding how cases in its docket are to
be tried so that the business of the court may be
dispatched expeditiously and with economy while
providing justice to the parties. To promote this
end, the rule allows the consolidation and a
single trial of several cases in the court‘s docket,
or the consolidation of issues within those cases.
General Rule: Consolidation is discretionary
with the court.
Exceptions: Consolidation becomes a matter of
duty:
Purple Notes
Remedial Law
a) If the cases, same parties and same subject
matter are pending before the same judge;
or,
b) If cases were filed with different branches of
a court and one of such cases has not been
partially tried.
Notes: Consolidation of cases on appeal is
allowed.
Generally, the case which was appealed later and
bearing the higher docket number is consolidated
with the case having the lower docket number.
 Q. What is the Purpose of Consolidation?
A. It is to have all cases which are intimately
related, acted upon by one branch of the
court to avoid possibility of conflicting
decisions being rendered and in effect,
prevent confucsion, unnecessary costs and
delay. It is an action sought to avoid
multiplicity of suits; guard against oppression
and abuse, clear congested dockets; and to
simplify the work of the trial court in order to
attain justice with lease expense and
vexation against the party-litigants (Puncia vs
Toyota Shaw /Pasig, Inc. G.R. No. 214399, June
28, 2016).
Ways of Consolidating Cases
1. By RECASTING the cases already instituted
conducting only one hearing and rendering
only one decision;
2. By CONSOLIDATING the existing cases,
and holding only one hearing and rendering
only one decision; and,
3. TEST CASE METHOD: wherein only the
principal case is heard and the hearing on the
others is suspended until the judgment has
been rendered in the principal case(Salazar vs.
CFI of Laguna, G.R. No. 45642 September 25,
1937).
In the context of legal procedure, the term
"consolidation" is used in three different senses:
 Where all except one of several actions are
stayed until one is tried, in which case the
judgment in the one trial is conclusive as to
the others. This is not actually consolidation
Bar Operations C ommissions 131
 Purple Notes
Remedial Law
but is referred to as such. (QUASI-
CONSOLIDATION)
 Where several actions are combined into one,
lose their separate identity, and become a
single action in which a single judgment is
rendered. This is illustrated by a situation
where several actions are pending between
the same parties stating claims which might
have been set out originally in one complaint.
(ACTUAL CONSOLIDATION)
 Where several actions are ordered to be tried
together but each retains its separate
character and requires the entry of a
separate judgment. This type of consolidation
does not merge the suits into a single action,
or cause the parties to one action to be
parties to the other.(CONSOLIDATION
FOR TRIAL)(Republic vs. Heirs of Oribello, Jr.,
G.R. No. 199501, March 6, 2013)
Severance
Itis the act of dividing a lawsuit into two or more
independent causes, each of which terminates in
separate, final and enforceable judgment. In
severance, there is only one action.
The court, in furtherance of convenience or to
avoidprejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue or of any
number of claims, crossclaims, counterclaims,
third-party complaints or issues(Rule 31, Sec. 2).
Three factors to weigh in determining
whether to order separate trials
These are:
1. whether separate trials would further the
convenience of the parties;
2. whether separate trials would promote
judicial economy; and,
3. whether separate trials would avoid
substantial prejudice to the parties (Metrobank
vs. Sandoval, G.R. No. 169677, February 18,
2013).
3.O.6. Delegation of Reception of Evidence
General Rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties.
132 Center for Legal Education and Research
Exception: The court may delegate the
reception of evidence to its clerk of court who is
a member of the barunder the following
conditions:
a) In default hearing;
b) In ex-parte hearing; or
c) In any case where the parties agree in
writing(Rule 30, Sec. 9).
Note: Unlike the commissioner under Rule 32
who ―unless otherwise provided in the order of
reference, may rule upon the admissibility of
evidence,‖ under Rule 30, the clerk of court is
devoid of power to rule on objections to any
question or to the admission of evidence or
exhibits, which objection shall be resolved by the
court upon submission of his report and the
transcripts within ten (10) days from termination
of the hearing.
3.O.7. Trial by Commissioner
Commissioner is a person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon to
the court, and upon whose report, if confirmed,
judgment is rendered.
Trial by Commissioner applies when there is
something to be tried which requires some
technical expertise, which the court feels it does
not possess.
Trial by Commissioner depends largely upon the
discretion of the court; but the following are
instances when such appointment is mandatory:
1. In expropriation proceedings, the court
shall appoint no more than three (3)
commissioners for the determination of just
compensation;
2. Partition
3. Settlement of Estate of a Deceased Person
in case of trial of contested claims; and
4. The hearing for the approval of the
executor or administrator's accounting
can be delegated to a commissioner.
3.O.7a. Reference by Consent or Reference
ordered by motion

Reference by Consent
By written consent of both parties, the court may
order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by
the parties or to be appointed by the court.
The word commissioner includes:
a. Referee;
b. Auditor; and
c. Examiner(Rule 32, Sec. 1).
The Court may, upon the application of either
party or of its own motion, direct a reference to a
commissioner.
Reference ordered on motion
When the parties do not consent, thecourt may,
upon the application of either or of its own
motion, direct a reference to a commissioner in
the following cases: (ETQC)
a) When the trial of an issue of facts requires
the Examination of a long account on either
side;
b) When the Taking of an account is necessary
for the information of the court before the
judgment, or for carrying a judgment or
order into effect;
c) When a Question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case, or
d) For Carrying a judgment or order into
effect(Rule 32, Sec. 2).
3.O.7b. Powers of the Commissioner
a. To regulate the proceeding in every hearing
before him or her;
b. To do all acts necessary or proper for the
efficient performance of his or her duties
under the order;
c. To issue subpoenas ad testificandum and
subpoenas duces tecum;
d. To swear in witnesses; and
e. To rule upon the admissibility of evidence
unless otherwise provided in the order(Rule
32, Sec. 3).
If a party fails to appear at the time and place
appointed, the commissioner may:
Purple Notes
Remedial Law
 Proceed ex parte; or
 In his discretion, adjourn the proceedings to
a future day, giving notice to the absent
party or his counsel of the adjournment(Rule
32, Sec. 6).
3.O.7c. Commissioner’s report; Notice to
parties and hearing on the report
Upon the completion of the trial or hearing or
proceeding before the commissioner, the
commissioner:
a. Shall file with the court his or her report in
writing upon the matters submitted to him or
her by the order of reference.
b. When his or her power is not specified or
limited, shall set forth his or her findings of
facts and conclusions of law in his or her
report.
c. Shall attach thereto all exhibits, affidavits,
deposition, papers and the transcript, if any,
of the testimonial evidence presented before
him or her. (Rule 32,Sec 9)
Note: Objection to report based on grounds
which were available to the parties during the
proceedings before the commissioner, other than
objection to finding and conclusion therein set
forth, shall not be considered by the court unless
they were made before the commissioner. (Rule
32, Sec. 10)
Hearing upon report
Upon the expiration of the period of the period of
ten (10) calendar days by which the parties may
signify grounds of objections to the finding of the
report, the report shall be set for hearing. (Rule
32, Sec. 11)
After the hearing, the court shall issue an
order(ARR):
 Adopting, modifying, or rejecting the report
in whole or in part; or
 Recommitting it with instructions; or
 Requiring the parties to present further
evidence before the commissioner or the
court.
Note: Failure to set the commissioner‘s report
for hearing is not necessarily erroneous where
Bar Operations C ommissions 133
 Purple Notes
Remedial Law
parties were already granted opportunities to be  Q. What must the court consider in
heard. determining whether the motion is a
demurrer or a dismissal?
3.P.DEMURRER TO EVIDENCE
A.To determine whether the pleading filed is
It is a form of a motion to dismiss filed after the a demurer to evidence or a motion to
plaintiff has completed the presentation of his dismiss, the Court must consider (1) the
evidence. The defendant may move to dismiss allegations in it made in good faith; (2) the
the complaint on the ground that the plaintiff has stage of the proceeding at which it is filed;
shown no right to relief upon the facts and the and, (3) the primary objective of the party
law (insufficiency of evidence). filing it. (Cabador vs. People, G.R. No. 186001,
October 2, 2009)
 Q. What is a demurrer to evidence?
Motion to Dismiss vs. Demurrer
A.A demurrer to the evidence is an objection
by one of the parties in an action, to the MOTION TO DISMISS DEMURRER
effect that the evidence which his adversary Grounds under Rule Only 1 ground:
produced is insufficient in point of law, 15,Sec. 12:
whether true or not, to make out a case or
a. Lack of jurisdiction Insufficiency of
sustain the issue. The party demurring over the subject evidence
challenges the sufficiency of the whole matter of the claim;
evidence to sustain a verdict. The court, in b. Litis Pendentia;
passing upon the sufficiency of the evidence c.Barred by Res
raised in a demurrer, is merely required to Judicata or the
ascertain whether there is competent or Statute of
sufficient evidence to sustain the indictment Limitations;
or to support a verdict of guilt. d. Pleading states no
cause of action.
Filed before answer. Filed after the plaintiff
Sufficient evidence for purposes of frustrating
has rested his case.
a demurrer thereto is such evidence in
character, weight or amount as will legally
3.P.1. Ground
justify the judicial or official action demanded
according to the circumstances.
After plaintiff has finished presenting his or her
evidence, the defendant may move for the
To be considered sufficient therefore, the
dismissal of the complaint on the ground that
evidence must prove:
upon the facts and the law, the plaintiff has
shown no right to relief (Rule 33, Sec. 1).
(a) the commission of the crime; and, (b) the
precise degree of participation therein by the
3.P.2. Effect of denial of Demurrer
accused (Singian, Jr. vs., Sandiganbayan, G.R.
Nos.195011-19, September 30, 2013).
In civil case, there is no need for a leave of
court prior to filing of demurrer. If denied, the
 Q. What is the silmilarity between Demurrer
defendant may proceed to present his evidence.
to evidence and Motion to Dismiss?
A. Demurrer is an aid or instrument for the
This means that the denial of the demurrer to
expeditious termination of an action, similar
evidence does not deprive
to a motion to dismiss, which the court or
thedefendanttoadduceevidenceinhisbehalf
tribunal may either grant or deny
(Nepomuceno vs COMELEC, G.R. No. L-60601,
December 29, 1983). The order denying the demurrer to evidence shall
not be subject of an appeal orpetition for
certiorari, prohibition or mandamus before
judgment (Rule 33, Sec. 2).(n)

134 Center for Legal Education and Research


If denied, in criminal case, the accused may
adduce his evidence only if the demurrer is with
leave of court. If demurrer is without leave of
court, accused can no longer present his
evidence (Rule 119, Sec. 23).
 Q. Is the order denying the demurrer of
evidence appealable?
A. NO.Anorder denying a demurrer to
theevidenceis interlocutory and is, therefore,
not appealable. It can however, be the subject
of a petition for certiorariincaseof grave abuse
of discretion or an oppressive exercise of judicial
authority(Katigbakvs.Sandiganbayan, G.R.
No.140183,July 10,2003)
 Q. Does a Demurrer to evidence also apply
to election cases?
A. NO. a party who files a demurrer to
evidence that is subsequently denied in an
election case cannot insist on the right to
present evidence. The provision of the Rules of
Court governing
demurrertoevidencedoesnotapplytoanelectionca
se(Gementizavs. COMELEC, G.R. No. 140884, March
6, 2001)
3.P.3. Effect of grant of Demurrer
If granted, incivil case, the case shall be
dismissed. The order of dismissal being a final
order, it is appealable. However, if on appeal the
order granting the motion is reversed, the
defendant loses his right to present evidence (Rule
33, Sec. 1)..
 Q. What is the effect of reversal of order
granting Demurrer to Evidence on appeal?
mandamus before judgment(Rule 33, Sec. 2, as
amended).
3.P.4 Waiver of Right to Present Evidence
Purple Notes
Remedial Law
A.The appellate court shall render judgment
on the basis of the evidence submitted by the
plaintiff. The appellate court shall no longer
remand the case to the trial court for further
proceedings. A remand is not only frowned
upon by the Rules, it is also logically
unnecessary on the basisofthefacts on record.
(Radiowealth Finance Corporation vs. Del Rosario,
G.R. No. 138739, July 6, 2000)Radiowealth loses
the right to present evidence.
 Q. What is the effect of grant of Demurrer to
evidence in Criminal Cases?
A.Incriminal case, if demurrer to evidence
is granted, It is a resolution of the case on
the merits, and it amounted to an acquittal.
Any further prosecution of the accused after
an acquittal would violate the proscription on
double jeopardy (People vs. Sumingawa, G.R.
No. 183619, October 13, 2009).Except the civil
aspect of the criminal case (Hun Hyung Park
vs. Eung Won Choi, G.R. No. 165496, February
12, 2007).
Remedies in case of grant or denial of a
Demurrer to Evidence
If granted: The plaintiff may file an appeal
before the proper appellate court. This is because
a dismissal on the basis of demurrer to evidence
is similar to a judgment. It is a final order ruling
on the merits of a case(Republic vs. Jimenez,G.R.
No. 174673, January 11, 2016 – J.Leonen penned
case).
If denied: the defendant shall proceed to trial, as
the Rules provide that the order denying the
demurrer to evidence shall not be subject of an
appeal or petition for certiorari, prohibition or
The defendant can always present his evidence in
the event his demurrer is denied, even if no
reservation was made therefore.
If the demurrer is granted but on appeal theorder
of dismissal is reversed, the defendant is deemed
to have waived his right to present evidence (Rule
33,Sec.l)
Bar Operations C ommissions 135
 Purple Notes
Remedial Law
3.P.5.Demurrer to Evidence in a Civil Case vs. Demurrer to Evidence in a Criminal Case

CIVIL DEMURRER CRIMINAL DEMURRER

Similarities (1) Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading under the Rules on
Summary Proceedings because (a) it is there to similarly expedite the proceedings and (b) it is not
among those mentioned under prohibited pleadings.

(2) The ground is the same, that is, INSUFFICIENCY OF EVIDENCE

(3) Only available AFTER the presentation of the evidence of the plaintiff or prosecution, as the
case may be.

(4) Court may either grant or deny the Demurrer

Differences (1) Leave of court is not required. (1) The demurrer may be filed with or without
the leave of court.

(2) If DENIED - (a) if with leave of court,

accused may proceed with presentation of his
(2) If DENIED - defendant presents evidence. evidence; (b) if without leave, accused can no
longer present his evidence (Bernardo vs. CA,
G.R. No. 119010. September 5, 1997).

(3) if GRANTED - the case is dismissed; order (3) if GRANTED - accused is acquitted;
of dismissal is a FINAL order, hence appealable

(4) The Court may dismiss, motu poprio, the

(4) The court cannot, motu poprio, make a action on ground of isufficiency of evidence after
demurrer after the plaintiff rests its case. giving the prosecution the opportunity ot be
heard.

(5) The order of acquittal is NOT appealable;

(5)If the demurrer is granted but on APPEAL
the order of dismissal is reversed, the
defendant is deemed to have waived his right
to present evidence
otherwise, it will be a violation of his right
against double jeopardy
*Exception: appeal may be had as to the Civil
Aspect (Hun Hyung Park vs. Eung Won Choi, supra)

Note: Demurrer to evidence is not a prohibited  The purpose of the the Rules is to expedite
pleading under the Rules on Summary the proceedings, so also is the purpose of
Proceedings. demurrer.

Reasons:

 The enumeration in Rules on Summary

Procedure is exclusive; demurrer is not
included therein; and,

Center for Legal Education and Research

137
 Purple Notes
Remedial Law
3.Q. JUDGMENTS AND FINAL ORDERS
3.Q.1. Judgment
Judgment is the conclusion of law upon the
matters contained in the record, or the
application of the law to the pleadings and to the
facts, as found by the courts or admitted by the
parties, or deemed to exist upon their default in
the course of judicial proceedings(Gotamco vs.
Chan Seng G.R. No. L-22737, November 28, 1924).
 Q. What is a Final Judgment or Order?
A.A final order is one that disposes of the
subject matter in its entirety or terminates a
particular proceeding or action, leaving
nothing else to be done but to enforce by
execution what has been determined by the
court. (Silverio vs. Court of Appeals, G.R. No.
178933, September 16, 2009)
 Q. What are the effects when a judgment
becomes final and executory?
A. When a judgment becomes final and
executory, it becomes immutable and
unalterable. The court loses jurisdiction over
the judgment to amend (except for clerical
errors) or alter the same but it retains
jurisdiction to execute it during its lifetime
(Equatorial Realty Development, Inc. vs. Mayfair
Theater, G.R. No. 106063, November 21, 1996).
 Q. What is a final and executory dismissal?
A.Once the dismissal attains the attribute of
finality, the trial court cannot impose legal
fees anew because a final and executory
dismissal although without prejudice divests
the trial court of jurisdiction over the civil
case as well as any residual power to order
anything relative to the dismissed case; it
would have to wait until the complaint is
docketed once again(RCBC vs. Magwin
Marketing, G.R. No. 152878, May 5, 2003).
 Q.What is the doctrine of finality or
immutability of judgment?
A. A decision that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect,
138 Center for Legal Education and Research
even if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that
rendered it or by the Highest Court of the
land. Any act which violates this principle
must immediately be struck down(FGU
Insurance Corp. vs. RTC of Makati City Br. 66,
G.R. No. 161282, February 23, 2011)
It is well-settled that a decision that has
acquired finality becomes immutable and
unalterable, and may no longer be modified
in any respect, even if the modification is
meant to correct erroneous conclusions of
fact and law, and whether it be made by the
court that rendered it or by the Highest
Court of the land. In this case, the Court
concurs with the CA‘s view that the Assailed
Order had already become final and
executory at the time when the NHA sought
to have it reconsidered before the court a
quo. As evidenced by the registry return
receipt on record, the NHA, however, moved
for reconsideration therefrom only more
than four (4) months from notice. As the
motion was filed way beyond the 15-day
reglementary period prescribed therefor, the
court a quo‘s judgment had already lapsed
into finality (National Housing Authority vs.
Court of Appeals, GR No. 173802, April 7, 2014).
Exception to the immutability and
inalterability of final decision:(Hulst vs. PR
Builders, Inc., G.R. No. 156364, September 25, 2008)
 the correction of clerical errors, the so-called
nunc pro tunc entries which cause no
prejudice to any party, void judgments
 whenever circumstances transpire after the
finality of the decision rendering its
execution unjust and inequitable.
Formal Requisites of a valid judgment(Rule
36,Sec. 1; Sec. 14, Art. VIII, Constitution of the
Philippines; Report on the Judicial Audit Conducted in the
Municipal Trial Court of Tambulig,A.M. NO. MTJ-05-1573,
October 12, 2005).
1) It should be in writing;
2) The judgment must be personally and directly
written and prepared by the judge;(Corpus vs.
Sandiganbayan, 442 SCRA 294, 309)
3) It must state clearly and distinctly the facts
and law on which it is based;

4) It should be signed by the judge and filed
with the clerk of court; and
5) The judgment must be entered because a
judgment which is not entered has only
become final but not executory.
Requisites of a Valid Judgment:(Acosta vs.
COMELEC, G.R. No. 131488. August 3, 1998
1. The Court must have jurisdiction over the
parties and the subject matter;
2. The Court and the tribunal must be clothed
with judicial authority to hear and
determine the matter before it;
3. The evidence must have been considered by
the tribunal in deciding the case; and,
4. The parties must have been given an
opportunityto be heard.
3.Q.2. Judgment without trial
A civil case may be adjudicated upon without the
need for trial in any of the following cases:
 Where the pleadings of the parties tender no
issue at all, a judgment on the pleadings may
be directed by the court (Rule 34)
 Where from the pleadings, affidavits,
depositions and other papers, there is actually
no genuine issue, the court may render a
summary judgment(Rule 35)
 Where the parties have entered into a
compromise or an amicable settlement either
during the pre-trial or while the trial is in
progress (Rule 18 of the ROC; Article 2028 of the
Civil Code of the Philippines).
 Where the complaint has been dismissed with
prejudice or when the dismissal has the effect
of an adjudication on the merits (Rule 16, Sec.,
5; Rule 17,Sec., 3; Rule 7, Sec. 5, last par.).
 Where the case falls under the operation of
the Rules on Summary Procedure.
 Where, the parties agree in writing, upon the
facts involved in the litigation, and submit the
case for judgment on the facts agreed upon,
without the introduction of evidence. If,
however, there is no agreement as to all the
facts in the case, trial may be held only as to
the disputed facts (Rule 30,Sec. 6).
 When the case falls under the Rules on Small
Claims.
Purple Notes
Remedial Law
3.Q.3. Judgment on the Pleadings
Grounds:
1. If the answer fails to tender an issue:
 General denial of the material allegations
of the complaint.
 Insufficient denial of the material
allegations of the complaint.
2. Admits the material allegation of the adverse
party‘s pleading(Rule 34, Sec. 1).
Note: By moving for judgment on the pleadings,
plaintiff waives his claim for unliquidated
damages. Claims for such damages must be
alleged and proved.
When Not Allowed: (DILAU)
 When the answer raises an Issue;
 In an action for Declaration of nullity of
marriage;
 In an action for Legal separation;
 In an action for Annulment of marriage; and,
 When the issue is the amount of Unliquidated
damages
Action on motion for judgment on the
pleadings
The court may motu proprio or on motion render
judgment on the pleadings if the grounds are
apparent. Otherwise, the motion shall be subject
to the provisionsof Rule 15 of these Rules.
Any action of the court on a motion for judgment
on the pleadings shall not be subject of an appeal
or petition for certiorari, prohibition or
mandamus(Rule 34, Sec. 2).(n)
3.Q.4.. Summary Judgments
 Q. What is a Summary Judgment?
A:(1)A summary judgment is one granted
upon motion by a party for an expeditious
settlement of the case, there appearing from
the pleadings, depositions, admissions, and
affidavits that there are no important
questions or issues of fact posed (except as
to the amount of damages) and therefore,
the moving party is entitled to a judgment as
Bar Operations C ommissions 139
 Purple Notes
Remedial Law
a matter of law. (Garcia vs. Court of Appeals,
G.R. No. 117032, July 27, 2000)
(2)A summary judgment is granted to settle
expedtiouslyacase if, on motion of either party,
there appears from the pleadings, depositions,
admissions, and affida- vits that no important
issues of fact are involved, except the amountof
damages, x xx‖ (Ybiernasvs. Tanco-Gabal- don,
G.R. No. 178925, June 1,2011)
(3)A summary judgment or accelerated
judgment is a procedural technique to
promptly dispose of cases where the facts
appear undisputed and certain from the
pleadings, depositions, admissions and
affidavits on record, or for weeding out sham
claims or defenses at an early stage of the
litigation to avoid the expense and loss of
time involved in a trial. Its object is to
separate what is formal or pretended denial
or averment from what is genuine and
substantial so that only the latter may
subject a party-in-interest to the burden of
trial. Moreover, said summary judgment must
be premised on the absence of any other
triable genuine issues of fact. Otherwise, the
movants cannot be allowed to obtain
immediate relief. A genuine issue is such
issue of fact which requires presentation of
evidence as distinguished from a sham,
fictitious, contrived or false claim (Monterey
Foods Corp. vs. Eserjose, GR 153126, September
9, 2003)
 Q. When can a motion for Summary
Judgment be granted?
A. Summary judgments are sanctioned by
the Rules of Court as a device to simplify and
expedite the resolution of cases when, as
shown by the pleadings,
affidavits,depositions, or admissions on the
records, there are no genuine issues which
would entail an expensive, lengthy and
protracted trial (Jose Feliciano Loy et.al. vs. San
Miguel Corporation Employees Union-Philippine
Transport and General Workers Organization, et.
al. G.R. No.164886, November 24, 2009)
Trial courts are authorized to grant relief by
summary judgment. This is intended to
expedite or promptly dispose of cases where
the facts appear undisputed and certain from
140 Center for Legal Education and Research
the pleading admissions and affidavits. This
rule does not vest in the court summary
jurisdiction to try the issue on pleadings and
affidavits but gives the court limited authority
to enter summary judgment only if it clearly
appears that there is no genuine issue of
material fact (Velasco vs. CA G.R. No. L-31018
June 29, 1973).
 Q.What is a Genuine Issue?
A. There is genuine issue when an issue of
fact is presented which requires presentation
of evidence as distinguished from a sham,
fictitious, contrived or false claim (Villuga vs.
Kelly Hardware and Construction Supply Inc. G.R.
No. 176570, July 18,2012).
Bases of summary judgment
1. Affidavits made on personal knowledge;
2. Depositions of the adverse party or a
thirdparty under Rule 23;
3. Admissions of the adverse party under
Rule26; and
4. Answers to interrogatories under Rule 25.
All intended to show that:
a. There is no genuine issue as to any material
fact, except damages which must always be
proved; and
b. The movant is entitled to a judgment as a
matter of law(Monterey Foods Corp., et al. vs.
Eserjose, G.R. No. 153126, September 11, 2003).
3.Q.4a. For the Claimant
A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served,
move with supporting affidavits, depositions or
admissions for a summary judgment in his favor
upon all or any part thereof. (Rule 35, Sec. 1.)
When to File:
He must wait for the Answer to be filed and
served before he can move for summary
judgment (Rule 35, Sec. 1).

3.Q.4b. For the Defendant
A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a
summary judgment in his favor as to all or any
part thereof(Rule 35, Sec.1 ).
When to File:
He can move for summary judgment at any time
after filing and service of the complaint, even
before he answers(Rule 35, Sec. 2).
3.Q.4c. When the Case not fully adjudicated
on motion
If on motion under this Rule, judgment is not
rendered upon the whole case or for all the
reliefs sought and atrial is necessary, the court
may, by examining the pleadings and the
evidence before it and by interrogating counsel,
ascertain what material facts exist without
substantial controversy, including the extent to
which the amount of damages or other relief
isnot in controversy, and direct such further
proceedings in the action as are just. The facts so
ascertained shall be deemed established, and the
trial shall be conducted on the controverted facts
accordingly(Rule 35, Sec. 4).(4a)
Burden of Proof: Lies with the party movant
who must demonstrate clearly the absence of any
genuine issue of fact, or that the issue posed in
the complaint is so patently unsubstantial as not
to constitute a genuine issue for trial, and any
doubt as to the existence of such an issue is
resolved against the movant.(Riano, 2014)
3.Q.4d. Affidavits and Attachments
Motion and proceedings
The motion for summary judgment must be
supported by:
1. Affidavit
2. Depositions or admission of the adverse party
or a third party, for a summary judgment in
his favor upon all or any part thereof.
Purple Notes
Remedial Law
3. The specific law relied upon(Rule 35, Sec. 3
A.M. No. 19-10-20-SC).
Note: The Adverse party may file a comment
and serve opposing affidavits, depositions,
oradmissions within a non-extendible period of
five (5) calendar days from receipt of the
motion(Rule 35, Sec. 3).
Unless the court orders the conduct of a hearing,
judgment sought shall be rendered forthwith if
the pleadings, supporting affidavits, depositions
and admissions onfile, show that, except as to
the amount of damages, there is no genuine
issue as to any material fact and that the moving
party is entitled to judgment as a matter
oflaw(Rule 35, Sec. 3 A.M. No. 19-10-20-SC).
Requisites of Affidavit:
1. Made on personal knowledge;
2. Set forth such facts as would be admissible
in evidence;
Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein(Rule 35, Sec. 5).
Note: Certified true copies of all papers or parts
thereof referred to in the affidavit shall be
attached thereto or served therewith (Rule 35,
Sec. 5).
Affidavits in bad faith
Should it appear to its satisfaction at any
timethat any of the affidavits presented pursuant
to this Rule are presented in bad faith, or solely
for the purpose of delay(Rule 35, Sec. 6).
Effects:
The court shall forthwith:
1. Order the offending party or counsel to pay
to the other party the amount of the
reasonable expenses which the filing of the
affidavits caused him or her to incur,
including attorney's fees,
2. it may, after hearing further adjudge the
offending party or counsel guilty of
contempt(Rule 35, Sec. 6).
Bar Operations C ommissions 141
 Purple Notes
Remedial Law
3.Q.5. Summary Judgment, Judgment on the Pleadings, and Judgment by Default
Distinguished(Albano, Remedial Law Reviewer, 2010 ed., Pp. 408-409)

SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS

(Rule 35)
Based on the pleadings,
depositions, admissions and
affidavits.
Available to both plaintiff and
defendant.
There is no genuine issue
between the parties.
10-day notice required.
May be interlocutory or on the
merits.
(Rule 34)
Based solely on the pleadings.
Generally available to the plaintiff, unless
the defendant presents a counterclaim.
The answer fails to tender an issue or
there is an admission of material
allegations.
3-day notice required.
On the merits.
JUDGMENT BY DEFAULT
Based on the complaint and
evidence, if presentation is
required.
Available to plaintiff.
There is no issue because no
answer was filed by the defending
party.
3-day notice rule applies.
On the merits.

10-day notice required. 3-days notice required.

Remedy against Summary Judgment

Any action of the court on a motion for summary

Available in any action
judgment shall not be subject of an appeal or
May be interlocutory or except annulment of
petition for certiorari, prohibition or on the merits. marriage or legal
mandamus.(Rule 35, Sec. 3) separation cases.

Judgment on the Pleadings vs.

Summary Judgment(Albano, Remedial Law
Reviewer, 2010, Pp. 408-409) If filed by plaintiff, it
must be filed at any
time after an answer is
Judgment on the There is already an
Summary Judgment served; if filed by
Pleadings answer filed.
defendant, may be filed
Based on the pleadings, at any time even before
Based solely on the
depositions, admission there is an answer
pleadings.
and affidavits.
Generally available only to
the plaintiff, unless the 3.Q.6. Contents of a Judgment:
Available to both plaintiff
defendant presents a
and defendant.
counterclaim.
 Opinion of the court (findings of facts and
conclusion of law) or ratio decidendi;
There is no genuine The answer fails to tender
issue between the an issue or there is an  Disposition of the case (contained in the
parties. i.e there may be admission of material dispositive portion); and,
issues but these are allegations.  Signature of the judge.(Rule 36, Sec. 1)
irrelevant.
General Rule: Where there is a conflict between
the fallo and the ratio decidendi, the fallo
controls.

This rule rests on the theory that the fallo is the

final order while the opinion in the body is merely
a statement ordering nothing(Florentino vs. Rivera,
G.R. No. 167968, January 23, 2006).

Exception: Where the inevitable conclusion from

the body of the decision is so clear that there

142 Center for Legal Education and Research


was a mere mistake in the dispositive portion, the
body of the decision prevails.(Florentino vs. Rivera,
G.R. No. 167968, January 23, 2006).
Promulgation is the process by which a
decision is published, officially announced, made
known to the public or delivered to the Clerk of
Court for filing, coupled with notice to the parties
or their counsel.(Neria vs Com. of Immigration, G.R.
No. L-24800 May 27, 1968).
Memorandum Decision is the judgment or
final resolution of the appellate court adopting by
reference the findings of facts and conclusion of
law contained in a decision of the trial
court(Francisco vs CA G.R. No. L-57438 January 3,
1984).
Judicial Compromise is a judgment based on a
compromise which has the force of law and is
conclusive between the parties, hence, not
appealable(Inutan et. al. vs. Napan Contracting &
Allied Services, G.R. No. 195654, November 25, 2015).
Rendition of Judgment is the act of filing the
signed decision with the Clerk of Court.
This includes an amended decision, which is a
distinct and separate judgment and must follow
the established rule(Rule 19, Sec. 2).
The power to amend a judgment is inherent to
the court before judgment becomes final and
executory( Manila Banking Coiporationvs. Yan, et al.,
G.R. No. 128623, July 11, 2002).
A judgment on the pleadings may be rendered
upon motion of the claimant/plaintiff (Manila
Banking Coiporation vs. Yan, et al., G.R. No. 128623,
July 11, 2002).
While the case is still on pre-trial, the court may
render a judgment on the pleadings motu
proprioif it finds that such a judgment is
proper(Manila Banking Coiporation vs Yan, et al., G.R.
No. 128623, July 11, 2002).
3.Q.7. Rendition and Final Orders
Rendition of judgments and final orders
Rendition of judgment is the filing of the same
with the clerk of court. It is not the
Purple Notes
Remedial Law
pronouncement of the judgment in open court
that constitutes the rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has
not yet been filed with the clerk of court and
before its filing does not yet constitute the real
judgment of the court (Ago vs. CA, G.R. No. L-
17898, October 31, 1962).It is not the writing of the
judgment or its signing which constitutes
rendition of the judgment (Castro vs. Malazo, A.M.
No. 1237-CAR, August 21, 1980).
3.Q.8. Entry of judgment or final order
Important Rule: ―The date of finality of the
judgment or final order shall be deemed to be
the date of its entry‖
Entry of judgment means the recording of the
dispositive part of a judgment or final order by
the clerk of court in the book of entries of
judgments.
A judgment or order becomes final after 15 days,
when no appeal, motion for reconsideration or
motion for new trial is filed. When the judgment
becomes final and executory, such date is
deemed the date of entry of judgment. The
actual date of entry retroacts to the date of the
finality of judgment. (Rule 36, Sec. 2)
Note: Point of reference of the 15 day period:
from receipt or notice of judgment.
Rule of Immutability of Judgment
Under the Doctrine of Immutability of Judgments
(Conclusiveness of Judgment), a judgment that
has attained finality can no longer be disturbed.
The doctrine, which is sometimes referred to as
preclusion of issues or collateral estoppel, holds
that issues actually and directly resolved in a
former suit cannot again be raised in any future
case between the same parties (Riano,Civil
Procedure Vol. 1,2016,p.487).
Two-Fold Purpose:
a. To avoid delay in the administration of justice
and, thus, procedurally, to make orderly the
discharge of judicial business; and
b. To put an end to judicial controversies, at the
risk of occasional errors, which is precisely
143
 Purple Notes
Remedial Law
why courts exist(Marcos vs. Pamintuan, A.M. No.
RTJ-07-2062, January 18, 2011).
General Rule: A final judgment cannot be
modified, EVEN IF the purpose is to correct
perceived erroneous conclusions of the facts or
law(Florentino vs. Rivera, G.R. No. 167968, January
23, 2006).
Exceptions:
a) To make corrections of clerical errors;
b) Not substantial amendments, as by an
amendment nunc pro tunc;
c) To clarify an ambiguity which is borne out by
and justifiable in the context of the decision;
d) Where the judgment is void; or,
e) In judgments for support, it can always be
amended from time to time(Nunal vs. CA G.R.
No. 94005. April 6, 1993).
Manner of assailing judgments
1. Direct attack
a) Before finality
 Motion for Reconsideration / New Trial
 Appeal
b) After finality
 Relief from judgment under Rule 38
 Annulment of Judgment under Rule 47
 Collateral attack
2. Collateral attack - is made when, in
another action to obtain a different relief, an
attack on the judgment is made as an
incident in said judgment. This is proper only
when the judgment, on its face, is null and
void, as where it is patent that the court
which rendered said judgment has no
jurisdiction(Co vs. C.A.,G.R. No. 93687 May 6,
1991).
Special Forms of Judgments
 Judgment by Default (Rule 9,Sec. 3);
 Judgment on the Pleadings (Rule 34);
 Summary Judgment (Rule 35);
 Several Judgment (Rule 36);
 Separate Judgment (Rule 36,Sec. 5);
 Special Judgment (Rule 39,Sec. 11);
 Judgment for Specific Acts (Rule 39,Sec. 10);
 Judgment upon Confession;
 Judgment upon Compromise, or on consent or
agreement;
144 Center for Legal Education and Research
 Clarificatory Judgment;
 Judgment nunc pro tunc.
Several Judgment
This is proper where the liability of each party is
clearly separable and distinct from his co-parties
such that the claims against each of them could
have been the subject of separate suits and the
judgment for or against one of them will not
necessarily affect the other.
This is not proper in actions against solidary
debtors.
Separate Judgments
This is proper where more than one claim for
relief is presented in an action and a
determination as to the issues material to the
claim has been made. The action shall proceed
as to the remaining claims.
Cannot be executed without the other judgment,
EXCEPT with leave of court.
Court must stay the enforcement, until the
rendition of subsequent judgment.
No appeal may be taken from separate
judgment, unless the law allows it.
Judgment upon Agreement or Compromise
A compromise agreement between the parties to
a case and upon which the decision of the court
was based has the effect and authority of res
judicata upon such parties.
It is immediately executory. However, such
extrajudicial compromise may not be enforced by
execution. (Art. 2037, New Civil Code)
If the compromise is attended by fraud, mistake
or duress, a motion to set aside the compromise
may be made.
Other remedies include a petition for relief or a
new action to annul the compromise agreement.

Judgment by Confession
This is one which is rendered against a party
upon his petition or consent.
This usually happens when the defendant
appears in court and confesses the right of the
plaintiff to judgment or files a pleading expressly
agreeing to the plaintiff‘s demand.(PNB vs. Manila
Oil Refining & By Products Co., G.R. No. L-18103, June
8, 1922)
Two kinds of judgment by confession:(PNB
vs. Manila Oil Refining & By Products Co., G.R. No. L-
18103 June 8, 1922)
1. Judgment by cognovit actionem – the
defendant, after service, instead of entering a
plea, acknowledges and confesses that the
plaintiff‘s cause of action was just and rightful
2. Judgment by confession
relictaverificacione– after pleading and
before trial, the defendant both confesses the
plaintiff‘s cause of action and withdraws or
Judgment by Confession Distinguished From Judgment upon Compromise
JUDGMENT BY COMPROMISE
The provisions and terms are settled and agreed upon
by the parties to the action and which is entered in
the record with the consent of the court(Gadrinab vs.
Salamanca,G.R. No. 194560 June 11, 2014).
Clarificatory judgment is a judgment rendered by the court, upon motion, when a judgment
previously rendered is ambiguous and difficult to comply with.(Riano, Civil Procedure Vol. 1, 2016, p.525)
Amended or Clarified Judgment Distinguished From Supplemental Decision
AMENDED OR CLARIFIED JUDGMENT
It is an entirely new decision which supersedes the
original judgment.
Court makes a thorough study of the original judgment
and renders the amended and clarified judgment only
after considering all the factual and legal
issues(Maramba vs. Lozano, G.R. No. L-21533, June
29,1967).
Judgment Nunc Pro Tunc
It literally means judgment rendered by the court
―now for then‖.
Purple Notes
Remedial Law
abandons his plea or other allegation
whereupon judgment was entered against him
without proceeding to trial.
 Q. Is Consent of the client necessary?
A. Judgment upon confession and
compromise cannot be entered into by
counsel without the knowledge and special
authority of the client (Manufacturer‘s Bank
and Trust Co. vs. Woodworks, Inc., G.R. No. L-
29453, Dec. 28, 1970)
Q. Is a judgment by compromise
appealable?
A. A judgment rendered in accordance with
a compromise agreement is not appealable,
and is immediately executory, UNLESS a
motion is filed to set aside the agreement on
the ground of fraud, mistake, or duress, in
which case, an appeal may be taken against
the order denying the motion (Journalists, Inc.
vs. NLRC, G.R. No. 169421, September 5, 2006).
JUDGMENT UPON CONFESSION
An affirmative and voluntary act of the defendant
himself. The court exercises a certain amount of
supervision over the entry of judgment (PNB vs. Manila
Oil Refining & By Products Co., G.R. No. L-18103 June 8,
1922).
SUPPLEMENTAL DECISION
Does not take the place of or extinguish the original
judgment.
Serves to bolster or add to the original judgment.
It is rendered to enter or record such judgment
as has been formerly rendered but does not
appear on the record.
Its only function is to record some act of the
court which was done at a former time, but
which was not recorded then, in order to make
145
 Purple Notes
Remedial Law
the record speak the truth, without any changes Sec. 3)
in substance or any material respect(Lichauco vs. EFFECT AS TO DENIAL
Tan Pho G.R. No. L-24930, December 31, 1926). The movant has a ―fresh period‖ of 15 days from
receipt or notice of the order denying or
3.R. POST JUDGMENT REMEDIES dismissing the motion for new trial. (Neypes vs.
Court of Appeals, supra)
3.R.1. Motion For New Trial or
Reconsideration (Rule 37) Motion for New Trial

Definition a) Fraud, accident, mistake and excusable

negligence (FAME)
The re-hearing of a case previously decided by
the court before the judgment rendered becomes Intentional omission of a fact necessary
final and executory, whereby errors of law or toestablish the truth.
irregularities are expunged from the record, or
where new evidence is introduced, or both.  Fraud
3.R.1a. Grounds Fraud must be extrinsic or collateral, i.e., the kind
of fraud that prevented the aggrieved party from
MOTION FOR NEW MOTION FOR having a trial or presenting his case to the court,
TRIAL RECONSIDERATION
or was used to procure the judgment without fair
GROUNDS
submission of the controversy.
1. Extrinsic fraud, 1. The damages
accident, mistake or awarded are It is to be distinguished from intrinsic fraud which
excusable excessive; refers to the act of a party in a trial which
negligence (FAME)
prevented a fair and just determination of the
which ordinary 2. The evidence is
prudence could not insufficient to satisfy
case and which could have been litigated and
have guarded the decision or final determined at the trial or adjudication of the
against and by order; or case, such as falsification, false testimony, and so
reason of which the forth, and does not constitute a ground for new
rights of the 3. The decisionorfinal trial.
aggrieved party was order is
impaired; or contrary(Rule 37,  Accident
Sec. 1).
2. Newly discovered It is an event beyond the control of the party.
evidence, which
could not, with
There is accident when there is an actual surprise
reasonable diligence, incident preventing one from attending the trial.
have been
discovered and
 Mistake
produced at the trial,
Mistake generally refers to mistake of facts but
and which if
presented, would
may also include mistakes of law where, in good
probably alter the faith, the defendant was misled in the case.
result (Rule 37, Sec. General Rule: A client is bound by the mistakes
1). of his counsel.
EFFECT AS TO GRANT
The original judgment If the court finds that Exception:The client is not bound if the
or final order shall be excessive damages have application of the general rule would result in
vacated, and the been awarded or that serious injustice(Villa Rhecar Bus vs. De la Cruz, G.R.
action shall stand for the judgment or final No. L-78936 January 7, 1988).
trial de novo. (Rule 37, order is contrary to the
Sec. 6) evidence or law, it may
amend such judgment  Excusable Negligence
or final order
accordingly. (Rule 37, Negligence must be excusable and generally
imputable to the party, but the negligence of the

146 Center for Legal Education and Research


counsel is binding on the client(City of Dagupan vs.
Maramba, G.R. No. 174411, July 2, 2014). However,
negligence of the counsel may also be a ground
for new trial if it was so great such that the party
was prejudiced and prevented from fairly
presenting his case.
b) Newly Discovered Evidence
 Q. What is ―The Berry Rule‖?
A. Which could not, with reasonable
diligence, have been discovered and
produced at the trial and which, if
presented, would probably alter the
result. The Berry Rule (Berry vs. State of
Georgia, 1891)
Before a new trial may be granted on the ground
of NEWLY DISCOVERED EVIDENCE, the
following must be shown: (ANMaW)
1. The evidence was discovered After trial;
2. Such evidence could Not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
3. The evidence is Material and not merely
corroborative, cumulative or impeaching;
and,
4. The evidence is of such Weight that it would
probably change the judgment if admitted
(Custodio vs. Sandiganbayan, G.R. Nos. 96027-28,
March 08, 2005)
Two Aspects of Newly Discovered Evidence:
Temporal – when was the evidence discovered;
Predictive –when should or could it have been
discovered (with the exercise of due diligence).
 Q. When is evidence considered as newly
discovered?
A. For evidence to be considered as newly
discovered, it is essential that the offering
party exercised reasonable diligencein
seeking to locate such evidence before or
during trial, but nonetheless failed to secure
it; not so much the time when the evidence
offered first sprang into existence nor the
time when it first came to the knowledge of
the party now submitting. (Custodio vs.
Purple Notes
Remedial Law
Sandiganbayan,G.R. Nos. 96027-28,
March 08, 2005).
A motion for new trial or for reconsideration, if
timely filed, will toll the running of the
reglementary period for appeal except when the
same is pro-forma.
Note: When the ground is FAME, the motion
must be supported by an affidavit of merit. When
the ground relied upon is newly discovered
evidence, no affidavit of merit is required.
Instead, it shall be supported by affidavits of
witnesses or by duly authenticated documents.
Grounds for Motion for Reconsideration
The aggrieved party may move for motion for
reconsideration on the following grounds: (DIC)
a) That the Damages awarded are excessive;
b) That the evidence is Insufficient to justify the
decision or final order; or
c) That the decision of final order is Contrary to
law (Rule 37, Sec. 1).
3.R.1b. When to file
Motion for new trial or Motion for reconsideration
must be filed within the period for taking an
appeal.(Rule 37, Sec. 1)
 Appeal by Notice of Appeal - 15 days after
notice to the appellant of the judgment or
final order appealed from.
 Appeal by Record on Appeal - 30 daysfrom
notice of the judgment or final order.
Notes:
 A motion for new trial shall include all grounds
then available and those not so included shall
be deemed waived.
 A second Motion for New Trial is permitted
when based on a ground neither existing, nor
available when the first motion was made. A
second Motion for Reconsideration is NOT
allowed (Rule 37,Sec. 5).
 Where a party first filed a motion for
reconsideration, he shall be entitled to
another 15 days within which to file a motion
for new trial from notice of denial of his
motion for reconsideration. The 15 day period
does not include that which have elapsed
Bar Operations C ommissions 147
 Purple Notes
Remedial Law
from the notice of judgment to the time when
the motion for reconsideration was filed.
 Motion for New Trial or Motion for
Reconsideration that does not comply with the
requirements of notice of hearing and proof of
service does not also toll the reglementary
period of appeal. (Cledra vs. Sarmiento, G.R. no.
L-32450-51, June 10, 1971).
Contents of Motion for New Trial
The motion shall be made in writing, stating the
ground thereof, and a written notice of which
shall be served by the movant on the adverse
party.
If the motion is based on FAME, it shall be
supported by Affidavit of Merit.
If the motion is based on newly discovered
evidence, it shall be supported by the affidavits
of the witnesses by whom such evidence is
expected to be given, or by duly authenticated
documents which are proposed to be introduced
by evidence. (Rule 37, Sec. 2)
Pro Forma Motion for New Trial
 Q. What is Pro Forma Motion for New Trial?
A.It is one which merely reiterates the
evidence presented in the trial (Llantero vs. CA,
G.R. no. L-28421. July 20, 1981) or based on
grounds existing when the first motion was
filed. (Cruz vs. Villaluz, G.R. no. L-41684. February
21, 1979).
When Motion for New Trial is Considered
Pro Forma
1. Based on the same grounds as that raised in a
preceding motion for new trial or
reconsideration already denied;
2. Contains the same arguments and manner of
discussion appearing in the prior opposition to
the granted motion to dismiss;
3. New ground alleged in the motion for new
trial already existed and was available and
could have been alleged in the first motion for
new trial which was denied;
148 Center for Legal Education and Research
4. Based on ground of insufficiency of evidence
or that the judgment is contrary to law but
does not specify the supposed defects in the
judgment; or
5. It is based on the ground of FAME but does
not specify the facts constituting these
grounds and/or is not accompanied by an
affidavit of merits.
Pro Forma Motion For Reconsideration
It is one which fails to point out specifically the
findings or conclusions of the judgment or final
order which are not supported by evidence or
which are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusion(Riano, Civil
Procedure, Volume I, 2016, pg. no. 506).
Notes:
 A pro forma motion for new trial or
reconsideration shall NOT toll the
reglementary period of appeal already
stated(Riano, Civil Procedure, Volume I, 2016, pg.
no. 507).
 Pro Forma rule is not applicable in criminal
cases.
When Motion for Reconsideration is
Considered Pro Forma
1. it was a second motion for reconsideration;
2. It did not comply with the rule that the
motion must specify the findings and
conclusions alleged to be contrary to law or
not supported by the evidence;
3. It failed to substantiate the alleged errors;
4. It merely alleged that the decision in
question was contrary to law; or
5. The adverse party was not given notice
thereof. (Philippine National Bank vs. Paneda,
G.R. No. 149236, February 14, 2007)

Affidavit of Merit states:
a.) The nature or character of the fraud,
accident, mistake, or excusable negligence
on which the motion for new trial is based;
b.) The facts constituting the movant‘s good and
substantial and valid defenses are valid
causes of action; and
c.) The evidence of which he intends to present
if his motion is granted(Niguid vs. Carino, G.R.
no. L-12379. June 31, 1958).
Instances when Affidavit of Merit May Be
Dispensed With:
 When the judgment is null and void;
 When the judgment is procedurally defective;
and
 When the defendant was unreasonably
deprived of his day in court.
Motion for Reconsideration
Purpose: to reconsider or amend judgment or
final order.
Where to File: with the trial court which
rendered the judgment or final order sought to
be reconsidered.
 The Motion for Reconsideration shall be in
writing and notice thereof must be given to
the adverse party. It must also contain a
notice of hearing. In other words, it must
comply with the rules on motion. If it does
not, it will be considered only a pro forma
motion and will not have the effect of
suspending or interrupting the period to
appeal. The suspension of the period for
appeal presupposes that the motion is not
pro forma.
 The Motion for Reconsideration shall point
out specifically the findings or conclusion of
the judgment not supported by the evidence
or which are contrary to law. Mere general
assertions that a ground for reconsideration
exists will not suffice, otherwise the motion
Purple Notes
Remedial Law
shall be deemed a pro forma motion(Riano,
Civil Procedure, Volume I, 2016, Pp. 506-507).
Motion for New Trial or Reconsideration,
when prohibited
A Motion for New Trial, or for Reconsideration of
a judgment, or for reopening of trial, is a
prohibited motion under Section 19 of the
Revised Rule on Summary Procedure. This rule,
however, applies only where the judgment
sought to be reconsidered is one rendered on the
merits. "The motion prohibited by this Section is
that which seeks reconsideration of the judgment
rendered by the court after trial on the merits of
the case." (Lucas vs. Fabros A.M. No. MTJ-99-1226,
January 31, 2000)
3.R.1c. Denial of the Motion; Effects
The order denying aMotion for New Trial or
Motion for Reconsideration is not appealable, the
remedybeing an appeal from the judgment or
finalorder(Rule 37,Sec. 9).
The movant has a freshperiod of fifteen days
from receipt or notice ofthe order denying or
dismissing the motion forreconsideration within
which to file a notice ofappeal.
When the motion for new trial is denied on the
ground of fraud, accident, mistake of fact or law,
or excusable negligence, the aggrieved party can
no longer avail of the remedy of petition for relief
from judgment (Francisco vs. Puno, G.R. No. L-55694
October 23, 1981).
3.R.1d. Granting of Motion; Effect
Effect of granting MR
If the courts grants the motion of reconsideration
and finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend
such judgment or final order accordingly (Rule
37,Sec.3).
The amended judgment in in the nature of a new
judgment which supersedes the original
judgment. It is not a mere supplemental decision
which does not supplant the original but only
Bar Operations C ommissions 149
 Purple Notes
Remedial Law
serves to add something to it (Esquivel vs. Alegre,
G.R. No. 79425, April 17, 1989).
Effect of granting MNT
The original judgment shall be vacated, and the
action shall stand for trial de novo; but the
recorded evidence taken upon the former trial, in
so far as the same is material and competent to
establish the issues, shall be used as the new
trial without re-taking the same(Rule 37,Sec. 6).
Partial New Trial or Reconsideration
If the grounds for a motion under thus Rule
affect the issues as to only a part, or less than all
of the matters in controversy, or only one, or less
than all of the parties to it, the court may order a
new trial or grant reconsideration as to such
issues, without interfering with the judgment or
final order upon the rest. (Rule 37,Sec. 7)
Upon issuance of an order for partial new trial,
the court may either:
 Enter judgment or final order as to the rest;
or
 Stay the enforcement of such judgment or
final order until after the new trial.
Where one party files a Motion for New Trial or
Reconsideration and the other party seeks to
perfect an appeal from the said decision, the
court should withhold action on the appeal until
after the Motion for New Trial or Reconsideration
shall have been resolved.
3.R.1e. Remedy when Motion is Denied;
Fresh 15-Day Period Rule
An order denying a motion for new trial or
reconsideration is not appealable. The
remedybeing an appeal from the judgment or
finalorder(Rule 37, Sec. 9).
 The ―Fresh Period Rule‖-If the Motion for
Reconsideration or Motion for New Trial is
denied, the movant has a new period of 15
days to file an appeal if he so desires,
counted from the receipt of the notice or
order denying the motion. Hence, if he files
a Motion for reconsideration on the 10th day
from notice of the judgment and the motion
150 Center for Legal Education and Research
is denied, he does not have only the
remainder of the 15-day period to appeal,
but a fresh period of 15 days to to file his
appeal (Neypes vs. CA, supra).
 Q. Does the Fresh Period Rule apply to non-
judicial proceedings?
A.the "fresh period rule" in Neypes applies
only to judicial appeals and not to
administrative appeals. Appeal from a
decision of the HLURB Board of
Commissioners to the OP, is not judicial but
administrative in nature; thus, the "fresh
period rule" in Neypes does not apply.(San
Lorenzo Ruiz Builders And Developers Group, Inc.
vs. Bayang., G.R. No. 194702, April 20, 2015)
 Q. Does the Fresh Period Rule also apply to
Criminal Cases?
A.WhileNeypes involved the period to appeal
in civil cases, the Court's pronouncement of
a "fresh period" to appeal should equally
apply to the period for appeal in criminal
cases under Section 6 of Rule 122 of the
Revised Rules of Criminal Procedure.(Yu vs.
Samson-Tatad, G.R. No. 170979, February 09,
2011)
3.R.2 APPEALS IN GENERAL
 Q. What is an appeal?
A. It is a settled rule that the right to appeal
is neither a natural right nor a part of due
process; it is merely a statutory privilege,
and may be exercised only in the manner
and in accordance with the provisions of law
(Fenequito vs. Vergara, Jr., G.R. No. 172829, July
18, 2012).
Right to Appeal
The right to appeal is not a constitutional right,
natural of inherent right. It is a statutory privilege
and of statutory origin. It is available only if
granted or as provided by statutes (Sps. Lee vs.
LBP, G.R. No. 218867, February 17, 2016).
3.R.2a. Judgments and Final Orders Subject
to Appeal
 Purple Notes
Remedial Law
What may be appealed or duress, or any other ground vitiating
consent;
An appeal may be taken from a judgment or final 5. An order of execution;
order that completely disposes of the case, or of 6. A judgment or final order for or against one
a particular matter therein when declared by or more of several parties or in separate
these Rules to be appealable. (Rule 41, Sec.1, par claims, counterclaims, cross-claims and third-
1).Only a judgment or final order that completely party complaints, while the main case is
disposes of a case or of a particular matter pending, unless the court allows an appeal
therein when declared by the Rules of Court to there from;
be appealable may be the subject of an appeal. 7. An order dismissing an action without
prejudice (Rule 41, Sec.1 par 2, asamended by
Final Order – one which disposes of the whole A.M. No. 07-7·12-SC););
subject matter or terminates a particular 8. Judgment of direct contempt. (Rule 71, Sec.
proceeding or action, leaving nothing to be done 2);
by the court (or quasi-court) but to enforce by 9. An order denying a motion for new trial or
execution what has been determined (Neypes vs. motion for reconsideration by way of Rule 65,
CA, supra). as per A.M. No. 07-7-12-SC (Riano, Civil
Procedure Vol. I, 2016 ed., P.524)
Interlocutory Order – An order which does not
disposed of the case but leaves something else to Note:However, as of December 27, 2007, an
be done by the trial court on the merits of the aggrieved party may no longer assail an order
case. denying a motion for new trial or a motion for
reconsideration by way of Rule 65 as per A.M.
FINAL No. 07-7-12-SC, such ground having been
INTERLOCUTORY
JUDGMENT/ removed from the enumeration in Sec.1 of Rule
ORDER
ORDER 41. The proper remedy is to appeal from the
Disposes of a case, Does not end the court‘s judgment (Rule37,Sec. 9).
leaving nothing more to task of adjudicating the
be done by the court in parties‘ contentions and
3.R.2c. Remedy Against Judgments and
respect thereto. determining their rights
and liabilities as regards
Orders Which are not Appealable
each other.
Appealable. May not be questioned In those instances where the judgment or the
on appeal. final order is not appealable, the aggrieved party
Must clearly and Need not comply with may file the appropriate special civil action under
distinctly set forth the such requirement. rule 65 (Rule 41, Section 1).This refers to the
facts and law upon which special civil actions of certiorari, prohibition and
it is based. mandamus.
(Riano, Civil Procedure Volume I, 2016, Pp. 483-484)
3.R.2b. Matters Not Appealable Remedy against an order of execution;
exceptions

Matters not Appealable, as amended by A.M.
No. 07-7-12-SC, 27 Dec. 2007, Sec.1, Rule 41-
removed- Order denying a motion for
reconsideration and new trial):
1. An order denying a petition for relief or any
similar motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
 Q. What is the exception to the rule that
parties are not allowed to object to the
execution of a final judgment?
A. As a rule, parties are not allowed to
object to the execution of a final
judgment.One exception is when the terms
of the judgment are not clear enough and
there remains room for its interpretation. If
the exception applies, the respondents may
seek the stay of execution or the quashal of
the writ of execution. Although an order of
execution is not appealable, an aggrieved

Bar Operations C ommissions 151

 Purple Notes
Remedial Law
party may challenge the order of
execution via an appropriate special civil
action under Rule 65 of the Rules of Court
(Orix Metro Leasing and Finance Corporation vs.
Cardline, Inc., G.R. No. 201417, January 13,
2016).
DOCTRINE OF FINALITY OR
IMMUTABILITY OF FINAL JUDGMENT
Decisions which attained finality can no longer be
altered, amended or modified, even if the
alteration, amendment or modification was
meant to correct what was perceived to be an
erroneous conclusion of fact or of law and
regardless of what court, be it the highest Court
of the land, rendered it(Gadrinab vs. Salamanca,
G.R. no. 19450. June 11, 2014).
Exceptions
Doctrine of immutability of a final judgment may
be relaxed only to serve the ends of substantial
justice in order to consider certain circumstances
like:
1. matters of life, liberty, honor or property;
2. the existence of special or compelling
circumstances;
3. the merits of the case;
4. the cause not being entirely attributable to the
fault or negligence of the party favored by the
suspension of the doctrine;
5. the lack of any showing that the review
sought is merely frivolous and dilatory; or,
6. the other party will not be unjustly prejudiced
by the suspension(Abrigo vs. Flores, G.R. No.
160786, June 17, 2013).
Supervening event
A supervening event consists of facts that
transpire after the judgment became final and
executory, or of new circumstances that develop
after the judgment attained finality, including
matters that the parties were not aware of prior
to or during the trial because such matters were
not yet in existence at that time.
Supervening event is an exception to the
execution as a matter of right of a final and
immutable judgment rule, ONLY IF it directly
affects the matter already litigated and settled, or
substantially changes the rights or relations of
the parties therein as to render the execution
152 Center for Legal Education and Research
unjust, impossible or inequitable (Lomondot vs.
Balindong, G.R. No. 192463, July 13, 2015).
3.R.2d. Modes of Appeal
The three modes of appeal are:
1. Ordinary appeal (Rules 40 and 41)
2. Petition for review (Rules 42 and 43)
3. Appeal by Certiorari (Rule 45)
i. Ordinary Appeal
Kinds
1. Notice of appeal (15 Day period)
2. Record on appeal (30 Day period)– only in
cases of special proceedings and other
cases of multiple or separate appeals
where law on these Rules so require.
Applicable to:
1. Appeal to the RTC in cases decided by the
MTC under Rule 40
2. Appeal to the Court of Appeals in cases
decided by RTC in the exercise of original
jurisdiction under Rule 41
ii. Petition for Review
Applicable to:
1. Appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction under Rule
42.
2. Appeal to the Court of Appeals in cases
decided by Quasi-judicial Bodies under Rule
43.
iii. Appeal ByCertiorari
Applicable to:
All cases where only questions of law are raised
or involved. The appeal shall be to the Supreme
Court by petition for review on certiorari in
accordance with the Rule 45 (Rule 41, Sec. 2).
a. RTC to SC (Rule 41, Sec. 1[c])
b. CA to SC (Rule 45, Sec. 1)
c. Sandiganbayan to SC (Rule 45, Sec. 1)
d. CTAEn Banc to SC(Rule 45, Sec. 1)

e. Appeal from judgment or final order in a
petition for Writ of AmparotoSC(Sec. 19, The
Rules on the Writ of Amparo)
f. Appeal from judgment or final order in a
petition for Writ of Habeas Datato SC (Sec. 19,
AM No. 08-1-16-SC)
g. Appeal from judgment or final order in a
petition for Writ of Kalikasanto SC (Sec. 16,
Rule 7, AM No. 09-6-8-SC)
Note: An appeal from judgment in a petition for
a writ of amparo may raise not only questions of
law but also questions of facts, or both questions
of law and fact (Sec 19, The rules of the Writ of
Amparo; Riano, 2016).
3.R.2e. Issues to be Raised on Appeal
Modes of Appeal Issues to be Raised
Ordinary appeal (MTC Questions of fact or mixed
to RTC) questions of fact and law.
Ordinary appeal (RTC Question of law or fact
to CA) that has been raised in
the court below and which
is within the issues
framed by the
parties(Riano, Civil
Procedure Volume I,
2016, P. 547).
Petition for Review Questions of fact, of law,
(RTC to CA) or mixed questions of fact
and law(Riano, Civil
Procedure Volume I,
2016, P. 541).
Petition for Review Questions of fact, of law,
(Quasi-judicial bodies or mixed questions of fact
to CA) and law(Riano, Civil
Procedure Volume I,
2016, Pp. 563-564).
Appeal by Certiorari Only questions of
law(Riano, Civil Procedure
Volume I, 2016, P. 548-
549).
General Rule:No error will be considered by the
appellate court unless stated in the assignment of
errors.
Exception: The court may consider the following
even if not raised in the assignment of errors:
a) It affects the jurisdiction over the subject
matter;
b) It affects validity of the judgment appealed
from;
c) It affects the validity of the proceedings;
Purple Notes
Remedial Law
d) It is related to or dependent on an assigned
error, and properly argued in the brief; or
e) It is a plain and clerical error (Rule 51, Sec. 8).
Note: The court is imbued with sufficient
authority and discretion to review matters, not
otherwise assigned as errors on appeal, if it finds
that the consideration is necessary in arriving at
a complete and just resolution of the case or to
serve the interests of justice or to avoid
dispensing piecemeal justice (Asian Terminals, Inc.
vs. NLRC, G.R. No. 158458, December 19, 2007).
QUESTION OF LAW QUESTION OF FACT
Doubt or controversy as Doubt or difference
to what the law is on arises as to the truth or
certain facts. falsehood of facts, or as
to probative value of the
evidence presented.
Appellate court can The determination
determine the issue involves evaluation or
raised without reviewing review of evidence.
or evaluating the
evidence.
Can involve questions of Query invites the
interpretation of the law calibration of the whole
with respect to certain evidence considering
set of facts. mainly the credibility of
witnesses, existence and
relevancy of specific
surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation.
(Riano, Civil Procedure Volume I, 2016, P. 84)
Participation of the Solicitor General during
appeal
The OSG, as principal law officer and legal
defender of the government, possesses the
unequivocal mandate to appear for and in its
behalf in legal proceedings.
Described as an "independent and autonomous
office attached to the Department of Justice"
under Sec. 34, Book IV, Title III, Chapter 12,
Executive Order 292,the OSG, with the Solicitor
General at its helm, is vested with the following
powers and functions, among others, to wit:
Bar Operations C ommissions 153
 Purple Notes
Remedial Law
SECTION 35. Powers and Functions.—The reviewed or of its
Office of the Solicitor General shall represent the of the denial appellate
Government of the Philippines, its agencies and of the jurisdictio
instrumentalities and its officials and agents in petitioner‘s n (RTC or
any litigation, proceeding, investigation or matter motions for CA)
requiring the services of a lawyer. When new trial or
authorized by the President or head of the office consideratio
concerned, it shall also represent government- n.
owned or controlled corporations. The Office of
the Solicitor General shall constitute the law Note: for
office of the Government and, as such, shall petitions
discharge duties requiring the services of a filed under
lawyer. It shall have the following specific powers Rule 43, the
and functions: 15-day
period is
(1) Represent the Government in the Supreme reckoned
Court and the Court of Appeals in all criminal from notice
proceedings; represent the Government and its of the
officers in the Supreme Court, the Court of award,
Appeals, and all other courts or tribunals in all judgment,
civil actions and special proceedings in which the final order
Government or any officer thereof in his official or resolution
capacity is a party. xxx or from the
date of its
3.R.2f. Periods for Appeal (Rule 41,Sec.3) last
publication,
Applicabl if required,
Pleading When Where
e Rules or of the
Notice of Within 15 With the denial of the
appeal Rule 40 days after court that petitioner‘s
and 41 notice to the rendered motions for
appellant of the new trial or
the judgment consideratio
judgment or or final n.
final order order Petition Rule 45 Within 15 Supreme
appealed appealed for days from Court
from. from. Review notice of
Record Rule 40 Within 30 With the on judgment or
on appeal and 41 days after court that Certiora final order
(Note: in notice of the rendered ri or resolution
such judgment or the appealed
cases, a final order judgment
notice of from, or of
or final the denial of
appeal
order the
AND
record on appealed petitioner‘s
appeal from. motions for
shall be new trial or
file) consideratio
Petition Rule 41, Within 15 With the n.
for 42, 43 days from proper
Review notice of the court in
decision the
sought to be exercise

154 Center for Legal Education and Research

 Purple Notes
Remedial Law
Period to file Notice of Appeal under Rule to him upon the filing appellant with respect to
40 and 41 of the notice of appeal the subject matter upon
in due time. the approval of the record
An appeal may be taken within fifteen (15) days on appeal filed in due
time.
after notice to the appellant of the judgment or
Court loses jurisdiction Court loses jurisdiction
final order appealed from. over case upon only over subject matter
perfection of the upon approval of records
Notes: appeals filed in due on appeal filed in due
time and expiration of time and expiration of the
 Appeal in habeas corpus cases shall be taken time to appeal of other time to appeal of other
within forty-eight (48) hours from notice of parties parties.
the judgment or final order appealed from
(Rule 41, Sec. 3). 3.R.2g. Perfection of Appeal(Rule 41, Sec. 9)

 Period to appeal shall be interrupted by a Perfection of the appeal within the statutory or
timely Motion for New Trial or reglementary period is not only mandatory but
Reconsideration. also jurisdictional, and failure to do so renders
the questioned decision final and executory,
 Q. May the 15-day reglementary period for depriving the appellate court or body of
appealing or filing a motion for jurisdiction to alter the final judgment, much less
reconsideration or new trial be extended? to entertain the appeal(Florentino Pedrosa vs. Sps.
Hill, G.R. No. 120804, June 14, 1996).
A. The 15-day reglementary period for
Mode of When
appealing or filing a motion for Effect
Appeal Perfected
reconsideration or new trial cannot be
By Notice of Deemed The court loses
extended, EXCEPT in cases before this Court, Appeal perfected as to jurisdiction over
as one of last resort, which may, in its sound a party upon the case upon
discretion, grant the extension requested the filing of the the perfection of
(Estinozo vs. CA, G.R. No. 150276, February 12, notice of the appeal filed
2008). appeal in due in due time
time and andthe
Appeal by Record on Appeal payment of the expiration of the
required time to appeal of
Where a record on appeal is required, the docket fee and the other parties.
other lawful
appellant shall file a notice of appeal and a
fees.
record on appeal within thirty (30) days after
Appeal by Deemed The court loses
notice of judgment or final order(Rule 40, Sec. 2; Record on perfected as to jurisdiction only
Rule 41, Sec 3). Appeal a party with over the subject
respect to the matter upon the
Notice of Appeal Record on Appeal subject matter approval of the
The appeal is taken by A record on appeal shall thereof, upon records on
filing a notice of be required only in special the approval of appeal filed in
appeal with the court proceedings and in other the record on due time andthe
that rendered the cases of multiple or appeal filed in expiration of the
judgment or final order separate appeals(Rule 40, due time and time to appeal of
appealed from and Sec. 3). upon payment the other parties
copies are served on of the
the adverse party(Rule appellate court
40, Sec. 3). docket fee.
Within 15 days after Within 30 days from Appeal by Deemed RTC loses
notice to the appellant notice of the judgment or Petition for perfected upon jurisdiction over
of the judgment or final order. Review the timely filing the case upon
final order appealed of a petition for the perfection of
from. review and the the appeal and
Deemed perfected as Deemed perfected as to

Bar Operations C ommissions 155

 Purple Notes
Remedial Law
payment of the the expiration of
corresponding the time to
docket and appeal of the
other lawful other parties.
fees.
Notes:
 Prior to the transmittal of the original record
or the record on appeal to the appellate
court, the trial court 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 (Rule 41, Sec. 13, as
amended by A.M. No. 00-2-10-SC, May 1, 2000).
 After an appeal to the RTC has been
perfected, the MTC loses its jurisdiction over
the case and any motion for the execution of
the judgment should be filed with the RTC.
 The Summary Rules no longer apply when
the case is on appeal.
 Q. Is it necessary to obtain the court‘s
approval for the perfection of appeal?
A. The notice of appeal does not require the
approval of the court. The function of the
notice of appeal is merely to notify the trial
court that the appellant was availing of the
right to appeal, and not to seek the court‘s
permission that he be allowed to pose an
appeal (Crisologo vs. Daray, A.M. No. RTJ-07-
2036, August 30, 2006).
 Q. When is the Perfection of appeal within
the reglementary period not jurisdictional?
A. Perfection of appeal within the
reglementary period is jurisdictional except
when there has been extrinsic fraud,
accident, mistake, or excusable negligence
(FAME) (Habaluyas vs. Japson, G.R. No. 70895,
May 30,1986).
Appellate court docket and other lawful
fees
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed
from the full amount of the appellate court
docket and other lawful fees. Proof of payment
thereof shall be transmitted to the appellate court
156 Center for Legal Education and Research
together with the original record or the record on
appeal, as the case may be(Riano, Civil Procedure
Volume I, 2016 ed., P. 532).
 Q. Is the payment of docket fee
jurisdictional?
A. Payment of docket fee is jurisdictional.
The failure to pay appellate court docket fee
within the reglementary period allows only
discretionary dismissal and not automatic
dismissal, of the appeal. Such power should
be used in the exercise of the court‘s sound
discretion (Republic vs. Spouses Luriz, GR No.
158992, January 26, 2007).
 Q. What is the effect of non-payment of
appellate docket fees?
A.Payment in full of docket fees within the
prescribed period is mandatory. It is an
essential requirement without which the
decision appealed from would become final
and executory as if no appeal had been
filed. Failure to perfect an appeal within the
prescribed period is not a mere technicality
but a jurisdictional defect and failure to
perfect an appeal renders the judgment final
and executory.Payment of the full amount of
the docket fee is an indispensable step for
the perfection of an appeal. X xx appeal is
not perfected if only a part of the docket fee
is deposited within the reglementary period
and the remainder is tendered after the
expiration of the period (Saint Louis University,
Inc vs. Cobarrubias, G.R. No. 187104, August 3,
2010).
Duty of the Clerk of Court of Lower Court
upon Perfection of Appeal under Rule 41
Within thirty (30) days after perfection of all the
appeals, it shall be the duty of the clerk of court
of the lower court:
1. To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
2. To verify the completeness of the records
that will be transmitted to the appellate
court;

3. If found to be incomplete, to take such
measures as may be required to complete
the records, availing of the authority that he
or the court may exercise for this purpose;
4. To transmit the records to the appellate
court.If the efforts to complete the records
fail, he shall indicate in his letter of
transmittal the exhibits or transcripts not
included in the records being transmitted to
the appellate court, the reasons for their non-
transmittal, and the steps taken or that could
be taken to have them available; and
5. The clerk of court shall furnish the parties
with copies of his letter of transmittal of the
records to the appellate court(Rule 41, Sec.10).
Residual jurisdiction:
 Species of jurisdiction that the trial courts
have over cases they have decided
subsequently brought up.
This power of the court materializes upon the
perfection of the appeals by the parties or
upon the approval of the records on appeal,
but prior to the transmittal of the original
records or the records on appeal. In either
instance, the trial court still retains its so-
called residual jurisdiction.
The CA‘s motu proprio dismissal of
petitioner‘s Complaint could not have been
based, therefore, on residual jurisdiction
under Rule 41. What the CA referred to as
residual prerogatives were the general
residual powers of the courts to dismiss an
action motu proprio upon the grounds
mentioned in Section 1 of Rule 9 of the Rules
of Court and under authority of Section 2 of
Rule 1 of the same rules (Katon vs. Palanca, Jr.,
et al., G.R. No. 151149, September 7, 2004).
Residual powers of the court prior to the
transmittal of the original record or record
on appeal:
Perfection of the appeal by one party does not
operate to deprive the trial court of jurisdiction
over the case. The trial court still has the
authority to: (PC-POW)
Purple Notes
Remedial Law
a. Issue orders for the Protection and
preservation of the rights of the parties which
do not involve matters litigated by appeal;
b. Approve Compromise prior to the transmittal
of the record;
c. Permit appeal by an indigent;
d. Order execution pending appeal under
Section 2, Rule 39; and
e. Allow Withdrawal of the appeal (Rule 41, Sec.
9).
3.R.2h. Appeal from Judgments or Final
Orders Of The MeTC/MTC/MTCC/ MCTC
Where to Appeal
An appeal from a judgment or final order of a
MTC shall be taken to the RTC exercising
jurisdiction over the area which the former
pertains (Rule 40, Sec.1).
Note: The appeal is taken by filing a notice of
appeal with the court that rendered the
judgment, which is the MTC. Do not file the
notice of appeal with the RTC.
How to Appeal (Rule 40, Sec. 3)
 By Notice of Appeal
1. By filing a notice of appeal with the court
that rendered the judgment or final order
appealed from;
2. The notice of appeal shall indicate: (PJM)
a. the Parties to the appeal;
b. the Judgment or final order or part
thereof appealed from; and
c. The Material dates showing the
timeliness of the appeal.
3. Copies of the notice of appeal shall be served
on the adverse party;
4. Payment of the full amount of the appellate
court docket and other fees.
 By Record on Appeal
1. It shall be required only in special
proceedings and in other cases of multiple or
separate appeals.
2. The form and contents of the record on
appeal shall contain:
Bar Operations C ommissions 157
 Purple Notes
Remedial Law
a. The full names of all the parties to the
proceedings shall be stated in the caption
of the record;
b. Include the judgment or final order from
which the appeal is taken;
c. In chronological order, copies of only
such pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue
involved;
d. Together with such data as will show
that the appeal was perfected on time.
e. Every record on appeal exceeding twenty
(20) pages must contain a subject index.
3. Copies of the record on appeal shall be
served on the adverse party; and
4. Payment of the full amount of the appellate
court docket and other fees.
Notes:
 If an issue of fact is to be raised on appeal,
the record on appeal shall include by
reference all the evidence, testimonial and
documentary, taken upon the issue involved.
The reference shall specify the documentary
evidence by the exhibit numbers or letters by
which it was identified when admitted or
offered at the hearing, and the testimonial
evidence by the names of the corresponding
witnesses(Spouses Lebin vs. Mirasol, G.R. no.
164255. September 7, 2011).
 If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits(Spouses Lebin vs. Mirasol, G.R. no.
164255. September 7, 2011).
Duty of the Clerk of Court
Within fifteen (15) days from the perfection of
the appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the
original record or the record on appeal, together
with the transcripts and exhibits, which he shall
certify as complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of the
158 Center for Legal Education and Research
records to the appellate court shall be furnished
the parties(Rule 40, Sec. 6).
Submission of the Memorandum
By the Appellant: Within 15 days from the
notice issued by the clerk of court upon receipt of
the complete record or the record on appeal, the
appellant shall file/submit a memorandum which
shall briefly discuss the errors imputed to the
lower court, copy of which shall be furnished to
the appellee. Failure to so file shall be a ground
for the dismissal of the appeal (Rule 40,Sec.7[b]).
By the Appelle:Within 15 days from the receipt
of appellants‘s memorandum, the appellee may
file his memorandum (Rule 40,Sec.7[b]). The filing
of appellee‘s memorandum is not mandatory.
Note:The case shall be deemed submitted for
decision upon the filing of the memorandum of
the appellee, or the expiration of the period to do
so(Rule 40,Sec.7[b]).
Appeal from Orders Dismissing Case
without Trial; Lack of Jurisdiction(Rule 40,
Sec. 8)
 If lower court dismissed the case
without trial on the merits, The RTC
may:
a) Affirm, or
b) Reverse, in which case, it shall remand
the case for further proceedings.
 If dismissal is due to lack of
jurisdiction over the subject matter,
The RTC may:
a) Affirm. If RTC has jurisdiction, it shall try
the case on the merits as if the case was
originally filed with it, or,
b) Reverse, in which case, it remands the
case for further proceedings.
 If the case was tried on the merits by
the lower court without jurisdiction
over the subject matter, the RTC shall not
dismiss the case if it has original jurisdiction,
but shall decide the case, and shall admit
amended pleadings or additional evidence.
 Purple Notes
Remedial Law
ORDINARY APPEAL PETITION FOR
Applicability of Rule 41 (Rule 41) REVIEW (Rule 42)
original jurisdiction. appellate jurisdiction.
The other provisions of Rule 41 shall apply to No deposit for costs is Deposit for costs is
appeals provided for under Rule 40 insofar as required. required.
A motion for extension of Appellate court may
they are not inconsistent with or may serve to
time to file notice of grant an extension within
supplement the provisions thereof. appeal is not allowed. which to file the petition.
Certification against Required to be attached
3.R.2i.Appeal from Judgments or Final forum shopping is not with the petition
Orders of the RTC required. (initiatory pleading).
Motion for new trial or Motion for new trial or
Modes of Appeal from Judgments or Final reconsideration gives The reconsideration gives
Orders of the RTC appellant has a NEW The appellant has a NEW
PERIOD of fifteen (15) PERIOD of fifteen (15)
days from notice of days from notice of
1. Ordinary Appeal or Appeal by writ of Error denial of the motion. denial of the motion.
(Rule 41), where judgment or the final order
was rendered by RTC in the exercise of its How to Appeal (Rule 41)
original jurisdiction. It is taken to the CA on
questions of fact or mixed questions of fact  Notice of Appeal
and law.
1. By filing a notice of appeal with the court
2. Petition for Review (Rule 42), where the that rendered the judgment or final order
judgment or final order was rendered by the appealed from;
court in the exercise of its appellate 2. The notice of appeal shall indicate: (PJM)
jurisdiction. This mode of appeal is brought a. the Parties to the appeal;
to the CA on questions of fact or law, or b. the Judgment or final order or part
mixed questions of fact and law. thereof appealed from; and
c. The Material dates showing the
3. Petition for Review on Certiorari or Appeal by timeliness of the appeal(Rule 41, Sec. 5).
Certiorari to the Supreme Court (Rule 45). 3. Copies of the notice of appeal shall be served
This mode is brought to the SC from a on the adverse party;
judgment or final order of the RTC in the 4. Payment of the full amount of the appellate
exercise of its original jurisdiction and only on court docket and other fees.
questions of law are raised or involved.
 By Record on Appeal
Note: A petition for review on certiorari under
Rule 45 and a petition for certiorari under Rule 65 1. It shall be required only in special
are mutually exclusive remedies. Certiorari cannot proceedings and in other cases of multiple or
co-exist with an appeal or any other adequate separate appeals.
remedy (Estinozo vs. CA, G.R. No. 150276, February 2. The form and contents of the record on
12, 2008).
appeal shall contain:
a. The full names of all the parties to the
proceedings shall be stated in the caption
ORDINARY APPEAL PETITION FOR
(Rule 41) REVIEW (Rule 42)
of the record;
Taken by notice of appeal Taken by means of a b. Include the judgment or final order from
or by record on appeal. petition. which the appeal is taken;
Notice of appeal is filed Petition is filed with, and c. In chronological order, copies of only
with, and the docket fee the docket fee paid to such pleadings, petitions, motions and all
paid to the court that the appellate court. interlocutory orders as are related to the
rendered the judgment. appealed judgment or final order for the
Judgment appealed from Judgment sought for proper understanding of the issue
was rendered in the review was rendered in involved;
exercise of the court‘s the exercise of its

Bar Operations C ommissions 159

 Purple Notes
Remedial Law
d. Together with such data as will show
that the appeal was perfected on time.
e. Every record on appeal exceeding twenty
(20) pages must contain a subject
index(Rule 41, Sec. 6).
3. Copies of the record on appeal shall be
served on the adverse party; and
4. Payment of the full amount of the appellate
court docket and other fees.
Notes:
 If an issue of fact is to be raised on appeal,
the record on appeal shall include by
reference all the evidence, testimonial and
documentary, taken upon the issue involved.
The reference shall specify the documentary
evidence by the exhibit numbers or letters by
which it was identified when admitted or
offered at the hearing, and the testimonial
evidence by the names of the corresponding
witnesses(Spouses Lebin vs. Mirasol, G.R. no.
164255. September 7, 2011).
 If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits(Spouses Lebin vs. Mirasol, G.R. no.
164255. September 7, 2011).
Petition for Review from the RTC in its
appellate jurisdiction to the CA (Rule 42)
This mode of appeal applies when the decision of
the RTC appealed from is one decided by it in the
exercise of its appellate jurisdiction.This means
that the case originated from the MTC and
appealed to the RTC.
In filing a petition for review, a notice of appeal is
not required. The appeal is done by filing a
verified petition for review directly with the Court
of Appeals.
The lower courts or judges that rendered the
judgment or final order complained of should not
be impleaded as parties since this petition is for
purposes of appeal and not petitions in original
actions.
160 Center for Legal Education and Research
When to Appeal:
1. Within 15 days from notice of decision
sought to be reviewed or of the denial of
petitioner‘s motion for new trial or
reconsideration filed in due time after
judgment.
2. Additional period of 15 days only, provided
that extension is sought upon proper motion
and there is payment of the full amount of
docket and other lawful fees and the deposit
for costs before the expiration of the
reglementary period.
Note:No other extension shall be granted except
for the most compelling reason and in no case
shall it extend fifteen (15) days (Rule 42, Sec.1).
How to Appeal: (P2DF)
1. Filing a verified Petition for review with the
CA;
2. Payment of the corresponding and other
lawful fees to the clerk of court;
3. Depositing the amount of P500.00 for costs;
and
4. Furnishing the RTC and the adverse party a
copy of the petition (Rule 42, Sec. 1).
Form and Contents of the Petition
The petition shall be filed in seven (7) legible
copies, with the original copy intended for the
court being indicated and shall:
1. State the full names of the parties to the
case, without impleading the lower courts or
judges thereof either as petitioners or
respondents;
2. Indicate the specific material dates showing
that it was filed on time;
3. Set forth concisely a statement of the
matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the RTC, and the
reasons or arguments relied upon for the
allowance of the appeal;
4. Accompanied by clearly legible duplicate
originals or true copies of the judgments or
final orders of both lower courts, certified
correct by the clerk of court of the RTC; and

5. Submit together with the petition a
certification against forum shopping (Rule 42,
Sec. 2).
Grounds for Outright Dismissal by Court of
Appeals of the Petition (Motu Proprio
Dismissal) (FP-DQ)
a) Failure of the petition to comply with the
requirements on form(Rule 42, Sec. 3);
 Payment of docket and other lawful fees;
 Deposit for costs;
 Proof of service of the same petition to
the adverse party;
 Certification against forum shopping
b) Patently without merit;
c) Prosecuted manifestly for Delay; or,
d) Questions raised are too unsubstantial to
require consideration(Rule 42, Sec. 4).
Note:The CA may either require the respondent
to file comment within 10 days from notice or
dismiss the petition on the grounds provided for
above.
Due Course
Petition for Review is not a matter of right but
discretionary on the CA.
It may only give due course to the petition if it
shows on its face that the lower court has
committed an error of fact and/or law that will
warrant a reversal or a review thereof(Rule 42,
Sec. 6;Riano, Civil Procedure Volume I, 2016 ed., P.
126).
Stay of Judgment
General Rule: The appeal shall stay the
judgment or final order.
Exceptions:
a) If the CA, law or rules shall provide
otherwise; or
b) Civil cases decided under the Rules on
Summary Procedure (Rule 42,Sec.8 [b])
Submission for decision
If the petition is given due course, the CA may
set the case for oral argument or require the
Purple Notes
Remedial Law
parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of
the last pleading or memorandum required by
these Rules or by the court itself(Rule 42, Sec.9;
Riano, Civil Procedure Volume I, 2016, P. 547).
Ordinary Appealed Cases; Procedure in the
Court of Appeals (Rule 44)
Title of the case (Rule 41)
In all cases appealed to the Court of Appeals
under Rule 41, the title of the case shall remain
as it was in the court of origin, but the party
appealing the case shall be further referred to as
the appellant and the adverse party as the
appellee(Rule 44, Sec. 1).
Appellant’s Brief
It shall be the duty of the appellant to file with
the court, within forty-five (45) days from receipt
of the notice of the clerk that all the evidence,
oral and documentary, are attached to the
record. It shall be filed in:
a. seven (7) copies of his legibly typewritten,
mimeographed or printed brief; and
b. with proof of service of two (2) copies
thereof upon the appellee(Rule 44, Sec.7).
General Rule: Failure to file appellant‘s brief on
time is a ground for dismissal of the appeal.
Exception:(CISI-NAP)
a) the Circumstances obtaining warrant the
court‘s liberality;
b) that Strong considerations of equity justify an
exception to the procedural rule in the
interest of substantial justice;
c) no material Injury has been suffered by the
appellee by the delay;
d) there is no contention that the appellees‘
cause was Prejudiced;
e) where the reckless or gross Negligence of
counsel deprives the client of due process of
law;
f) when Application of the rule will result in
outright deprivation of the client‘s liberty or
property; or
Bar Operations C ommissions 161
 Purple Notes
Remedial Law
g) where the Interests of justice so require BRIEF MEMORANDUM
(Tiangco vs. LBP, G.R. No. 153998, October 6, the clerk that all the clerk of court that all
2010). evidence, oral and the evidence, oral and
If a motion to dismiss an appeal has been filed, it documentary, are documentary, are
suspends the running of the period for filing the attached to the already attached to
record(Rule 44, Sec. 7). the record (Rule 44, Sec.
appellant‘s brief, as the same would be
10).
unnecessary should the motion be granted. For Appellee‘s Brief, it
shall be filed within forty-
The failure of the appellant to make specific five (45) days from
assignment of errors in his brief or page receipt of the appellant's
references to the record as required in Section 9 brief (Rule 44, Sec. 8).
is a ground for dismissal of his appeal.
Contents specified by Shorter, briefer, only one
Appellee’s Brief Rules(Rule 44, Sec. 14-15). issue involved – no
subject index or
assignment of errors;
Within forty-five (45) days from receipt of the just facts and law
appellant's brief, the appellee shall file with the applicable.
court:
Time for Filing Memoranda in Special Cases
a. Seven (7) copies of his legibly typewritten,
mimeographed or printed brief; and In certiorari, prohibition, mandamus, quo
b. with proof of service of two (2) copies warranto and habeas corpus cases, the parties
thereof upon the appellant(Rule 44, Sec. 8). shall file, in lieu of briefs, their respective
memoranda within a non-extendible period of 30
 Failure to file does not affect appeal. days from receipt of the notice issued by the
 Appellee can only make counter–assignment clerk that all the evidence, oral and documentary,
of errors to sustain judgment. is already attached to the record.
 Appellee can also argue on issues raised at the
trial to sustain the judgment in his favor on The failure of the appellant to file his
other grounds, even if the same were not memorandum within the period thereof may be a
included in the decision of the court a quo nor ground for dismissal of the appeal(Rule 44, Sec.
raised in appellant‘s assignment of errors or 10).
arguments.
 Appellee cannot assign error to have judgment Effect of a Misdirected Appeal
modified, to do so, he must have appealed.
 It will result to the outright dismissal of the
Appellant’s Reply Brief
appeal in accordance in the Revised Rules
on Civil Procedure.
 Filing is optional.
 Filed to answer point in the appellee‘s brief  It produces no effect, because such
not covered in the appellant‘s brief. dismissal is based on the fact that the court
 Filed within twenty (20) days from receipt did not have jurisdiction over the said
of appellee‘s brief. appeal.

BRIEF MEMORANDUM APPEAL BY CERTIORARI TO THE SUPREME

Ordinary appeals
For Appellant‘s brief, it
shall be filed within forty-
five (45) days from
receipt of the notice of
Certiorari, prohibition, COURT (Rule 45)
mandamus, quo
warranto and habeas
corpus cases. When the appeal raises pure questions of law,
Filed within a non- the appeal should be addressed to the Supreme
extendible 30 days Court.
from receipt of the
notice issued by the

162 Center for Legal Education and Research


A question of law arises when the doubt or
difference arises as to what the law is on a
certain set of facts.
Application of Rule 45
Instances when Rule 45 may be applied:
a. Appeal from a judgment or final order of RTC
in the exercise of its original jurisdiction
where only questions of law are raised or
involved(Rule 41, Sec. 1[c])
b. Appeal from a judgment, final order or
resolution of the CA (Rule 45, Sec. 1)
c. Appeal from a judgment, final order or
resolution of the Sandiganbayan (Rule 45, Sec.
1)
d. Appeal from a judgment, final order or
resolution of the CTA (Rule 45, Sec. 1)
e. Appeal from judgment or final order in a
petition for Writ of Amparoto the SC(Sec. 19,
The Rules on the Writ of Amparo)
f. Appeal from judgment or final order in a
petition for Writ of Habeas Data to the
SC(Sec. 19, AM No. 08-1-16-SC)
g. Appeal from judgment or final order in a
petition for Writ of Kalikasanto the SC (Sec.
16, Rule 7, AM No. 09-6-8-SC)
Notes:
 It shall only raise question of law. However,
appeal from a decision in a petition for writ of
Amparo, habeas data or writ of Kalikasan,
questions of fact may be raised.
 Petition may include an application for a writ
of preliminary injunction or other provisional
remedies.
 The petitioner may seek the same provisional
remedies by verified motion filed in the same
action or proceeding or any time during its
pendency (Rule 45,Sec. 1 as amended by A.M.
No. 07-7-12-SC, 27 Dec. 2007).
Test for Questions of Law: If the appellate
court can determine the issue raised without
reviewing or evaluating the evidence(Centure Iron
Works, Inc. vs. Eleto B. Banas, G.R. No. 184116, June
19, 2013).
Conclusiveness of Facts
Purple Notes
Remedial Law
General Rule: The findings of fact of the CA are
final and conclusive and cannot be reviewed on
appeal to the SC.
Exceptions:
 When the finding is grounded entirely on
speculations, surmises or conjectures;
 When inference made is manifestly absurd,
mistaken or impossible;
 When the judgment is premised on a
misrepresentation of facts;
 When there is grave abuse of discretion in
the appreciation of facts;
 When the findings of fact are conflicting;
 When the CA in making its finding went
beyond the issue of the case and the same is
contrary to both the admissions of appellants
and appellees;
 When the findings of fact of the CA are at
variance with those of the trial court, the SC
has to review the evidence in order to arrive
at the correct findings based on the record;
 When the findings of fact are conclusions
without citation of specific evidence on which
they are based;
 When the facts set forth in the petition as
well as in the petitioner‘s main and reply
briefs are not disputed by the respondents;
 The findings of fact of the CA is premised on
the supposed evidence on record;
 When certain material facts and
circumstances have been overlooked by the
trial court which, if taken into account, would
alter the result of the case in that they would
entitle the accused to acquittal(Mendoza vs.
Palugod, G.R. No. 220517, June 20, 2018).
 Q. What is the Factual-Issue-Bar Rule?
A. In the exercise of its power of review, the
Supreme Court is not a trier of facts and,
unless there are excepting circumstances, it
does not routinely undertake the re-
examination of the evidence presented by
the contending parties during the trial of the
case (Tayco vs. Heirs of Tayco-Flores, G.R. No.
168692, December 13, 2010).
Grounds for Denial of Petition by the
Supreme Court on its own initiative: (WDQ)
 The appeal is Wthout merit
 If prosecuted manifestly for Delay
Bar Operations C ommissions 163
 Purple Notes
Remedial Law
 The Questions raised therein are too on Elections
unsubstantial to require consideration (Rule and the
45, Sec. 5) Commission
on Audit
Remedies if aggrieved by the judgment of Must be Filed not later Filed within
the trial court: made within than 60 days from 30 days from
the notice of notice of
 Motion for reconsideration. reglementary judgment, order judgment,
 Motion for new trial. period. or resolution. order or
resolution.
 Appeal.
Stays the Unless a writ of Unless the
 Petition for relief from judgment.
judgment or preliminary Supreme
 Petition for annulment of judgment. order injunction or Court shall
appealed temporary direct
Remedies if aggrieved by decision of the
from. restraining order otherwise
CA: is issued does not upon such
stay the terms as it
 Motion for reconsideration. challenged may deem
 Motion for new trial (on newly discovered proceeding. just, does
evidence). NOT stay
 Petition for review on certiorari under Rule execution of
45. judgment,
final order or
resolution.
RULE 45 vs. RULE 65 vs. RULE 64
The court is Court exercises Court
REVIEW ON in the original exercises
CERTIORAR CERTIORARI CERTIORAR exercise of its jurisdiction. original
I UNDER UNDER RULE I UNDER appellate jurisdiction.
RULE 45 65 RULE 64 jurisdiction
and power of
Petition is Petition raises the Petition prays review.
based on issue as to for
questions of whether the lower annulment or The The parties are The parties
law. court acted modification petitioner the aggrieved are the
without of the and the party against the aggrieved
jurisdiction or questioned respondent lower court or party against
with grave abuse judgment, are the quasi-judicial the
of discretion. final order or original agency and the Commission
resolution. parties to the prevailing parties. concerned
(Finding of action, and and person
facts the lower or persons
supported by court or interested in
substantial quasi-judicial sustaining
evidence final agency is not the
and impleaded. judgment,
renewable) final order or
resolution.
A mode of Special civil Special civil
appeal. action. action. Motion for Motion for Motion for
reconsiderati reconsideration or reconsiderati
Involves the Directed against Involves the on is not for new trial is on or for new
review of the aninterlocutoryord review of required. required. trial, if
judgment er of the court or judgment, If a motion for allowed
award or final where there is no and final reconsideration or under the
order on the appeal or any orders or new trial is filed, procedural
merits. other plain, resolution of the period shall rules of the
speedy or the not only be Commission
adequate remedy. Commission interrupted but concerned,

164 Center for Legal Education and Research

 Purple Notes
Remedial Law
another 60 days shall character of the reasons which will be
shall be given to interrupt the considered:
the petitioner (SC period fixed.
Admin. Matter  When the court a quo has decided a question
002-03)
of substance, not theretofore determined by
the Supreme Court, or has decided it in a
way probably not in accord with law or with
Review Discretionary; Not a matter of
the applicable decisions of the Supreme
Right(Rule 45, Sec. 6)
Court; or
A review is not a matter of right, but of sound
 When the court a quo has so far departed
judicial discretion, and will be granted only when
from the accepted and usual course of
there are special and important reasons therefor.
judicial proceedings, or so far sanctioned
such departure by a lower court, as to call for
The following, while neither controlling nor fully
an exercise of the power of supervision.
measuring the court‘s discretion, indicate the

SUMMARY OF APPEALS

APPEAL BY
ORDINARY APPEAL (Rule PETITION FOR REVIEW
CERTIORARI
41 and 42) (Rule 41, 42, and 43)
(Rule 45)
By notice of appeal or record By filing a petition for By filing a petition for
How
on appeal. review. review on certiorari.
From the MTC and MCTC to
the RTC, and from the RTC
to the CA in decisions of the
RTC rendered in the exercise
of their respective original
From the RTC to the SC
jurisdictions From the RTC to the CA, a
on a pure question of law,
decision of the RTC
Where to appeal a decision of the RTC
From the MTC and MCTC to rendered in the exercise of
rendered in the exercise of
the CA for decisions its appellate jurisdiction.
its original jurisdiction.
rendered by the said courts
in the exercise of their
delegated jurisdiction, in
which case the MTC and
MCTC acts as RTC.
Matter of appellate court‘s Matter of appellate court‘s
Nature of appeal Matter of right
discretion. discretion.
To whom appellate
Clerk of Court whose
docket and other Clerk of Court of the CA Clerk of Court of the SC
decision is being appealed.
lawful fees is paid
Requirementfor perfection
Payment of appellate Not a requisite for perfection
Requirement for perfection of appeal to be paid to the
docket and other of appeal but a ground for
of appeal. Clerk of Court of the
lawful fees dismissal if not paid on time.
appellate court.
Petitioner – party
Petitioner – party appealing
Appellant – party appealing appealing
Name of parties
Respondent – adverse
Appellee – adverse party Respondent – adverse
party
party.

Bar Operations C ommissions 165

 Purple Notes
Remedial Law
APPEAL BY
ORDINARY APPEAL (Rule PETITION FOR REVIEW
CERTIORARI
41 and 42) (Rule 41, 42, and 43)
(Rule 45)
In special proceedings and
Requirement of
other cases of multiple or Not required Not required
record on appeal
separate appeals
From the MTC and MCTC to
Basic document to be the RTC, Memo
Memoranda, when required Memorandum, when
filed in the appellate
by the CA. required by the SC.
court From the RTC to the CA,
Briefs.
Upon timely filing of a Upon timely filing of the
If filing of the notice of
petition for review and petition for review on
Perfection of appeal appeal is required, upon
payment of corresponding certiorari and payment of
as to appellant approval of the record on
docket and other lawful docket and other lawful
appeal in due time.
fees. fees.
In appeal by notice of appeal
– upon perfection of the
appeal filed in due time and
the expiration of its time to
When court whose appeal of the other parties. Upon the perfection of the
Upon the perfection of the
decision is being appeal filed in due time to
appeal filed in due time to
appealed loses In appeal by record on appeal by the other
appeal by the other parties.
jurisdiction appeal – upon approval of parties.
the records on appeal filed in
due time and the expiration
of its time to appeal of the
other parties.
Question of fact, question of Question of fact, question
As to questions which
law and question of fact and of law, question of fact and Only question of law.
may be raised
law. law.

3.R.2j. Appeal from Judgments or Period of Appeal

FinalOrdersof the CA
 Within 15 days from notice of judgment or final
Dual Functions of CA order or resolution appealed from.
 The SC may grant an additional period of 30 days
1. Original Jurisdiction (governed by only within which to file the petition for review.
Rule 46); original cases filed before
the CA: certiorari, prohibition, Effect of failure to comply with requirements
mandamus, quo warranto
2. Appellate Jurisdiction (governed The failure of the petitioner to comply with any of the
by Rule 44) requirements regarding the payment of the docket
and other lawful fees, the deposit for costs, proof of
Mode of Appeal – Petition for Review service of the petition, and the contents of and the
under Rule 45 documents which should accompany the petition shall
be sufficient ground for the dismissal thereof.
Cases Not Covered – Rule 43 shall not
apply to Judgments or final orders issued Issues of pure questions of law may be raised;
under the Labor Code of the Philippines however, CA has the discretion whether or not to
(Rule 43, Sec. 2). entertain the same.

166 Center for Legal Education and Research


Issues of pure questions of law may be raised;
however, CA has the discretion whether or not to
entertain the same.
From the decision of the CA, the aggrieved
party may:
a) Appeal by Certiorari under Rule 45;
b) File Motion for New Trial.
Under Rule 37, Motion for New Trial may be filed
only when the trial court has rendered a decision
already. However, in the CA, even if no decision
has yet been rendered, Motion for New Trial may
be filed based on newly discovered evidence.
This Rule, as well as Rule 42, constitutes the
exceptions to the general rule that appeals on
pure questions of law are brought to the SC.
3.R.2k. Decisions and final orders of the
Sandiganbayan
A party desiring to appeal by certiorari from a
judgment, final order or resolution of the
Sandiganbayan may file with the Supreme Court
a verified petition for review on certiorari.(Rule 45,
Sec. 1). The petition of review on certiorari shall
raise only pure questions of law.(Section 7, P.D.
1606, as amended by R.A. 7975 and R.A. 8249).
 Q. How may decisions and final orders of
the Sandiganbayan be appealed?
A. Shall be appealable to the Supreme Court
by way of petition for review on certiorari
under Rule 45 raising pure questions of law
(People vs Espinosa, G.R Nos. 153714-20, August
15, 2003).
3.R.2l. Appeal from judgments or final
orders of the Court of Tax Appeals
No civil proceeding involving matter arising under
the National Internal Revenue Code, the Tariff
and Customs Code or the Local Government Code
shall be maintained, except as herein provided,
until and unless an appeal has been previously
filed with the CTA and disposed of in accordance
with the provisions of this Act.
Purple Notes
Remedial Law
A party adversely affected by a resolution of a
Division of the CTA on a motion for
reconsideration or new trial, may file a petition
for review with the CTA en banc.
A party adversely affected by a decision or ruling
of the CTA en banc may file with the Supreme
Court a verified petition for review on certiorari
pursuant to Rule 45 of the 1997 Rules of Civil
Procedure (Section 11, R.A. no. 9282, March 30,
2004).
3.R.2m-n.Reviewof Judgments or Final
Orders of the COA and COMELEC
A party aggrieved by the judgment, final order or
resolution of the Commission on Elections or
Commission on Audit may file a petition for
certiorari under Rule 65 with the Supreme Court
(Rule 64Sec. 2).
The mode of review under Rule 64 is starkly
different from the mode applicable to the
judgment, final order or resolution of another
constitutional body, the Civil Service Commission.
The judgment of the Civil Service Commission
cannot be assailed by a petition for certiorari to
the Supreme Court but by appeal. This appeal
shall be taken by filing a verified petition for
review to the Court of Appeals (R.A. 7902)in
accordance with Rule 43 of the Rules of Court.
Time for filing of petition
 Within 30 days (special period of 30 days as
opposed to 60 days provided in Rule 65)
from notice of judgment or final order or
resolution sought to be reviewed.
 If a motion for reconsideration was filed and
is subsequently denied, petition must be filed
within the remaining period but not less than
5 days in any event reckoned from notice of
denial.
Mode of review
 As an independent civil action under Rule 65,
to be filed exclusively with the SC.
 Filing of petition for certiorari does not stay
execution of judgment or final order or
resolution sought to be reviewed unless the
petitioner files for TRO and Preliminary
Bar Operations C ommissions 167
 Purple Notes
Remedial Law
Injunction(Ocampo vs. RPN-9, G.R. no. 192947, Reconsideration.
December 9, 2015).

Application of Rules 64 and 65

3.R.2o. Review of final judgments or final
 Sec. 7, Art. IX-A of the Constitution reads, orders of the Civil Service Commission
―unless otherwise provided by the
Constitution or by law, any decision, order or The judgment of the Civil Service Commission
ruling of each commission may be brought to cannot be assailed by a petition for certiorari to
the Supreme Court on certiorari by the the Supreme Court but by appeal. This appeal
aggrieved party within 30 days from receipt shall be taken by filing a verified petition for
of a copy thereof.‖ The provision was review to the Court of Appeals (R.A. 7902)in
interpreted by the Supreme Court to refer to accordance with Rule 43 of the Rules of Court.
certiorari under Rule 65 and not appeal by
certiorari under Rule 45 (Aratuc vs. COMELEC, Appeals from Awards, judgments, final orders or
88 SCRA 251; Dario vs. Mison, 176 SCRA 84). To resolutions of our authorized by any quasi-judicial
implement the above constitutional provision, agency in the exercise of its quasi-judicial
the SC promulgated Rule 64. function, including Civil Service Commission shall
be governed by Rule 43.
RULE 64 RULE 65
Directed only to the Directed to any 3.R.2p.Review of final judgments or final
judgments, final orders tribunal, board or orders of the Ombudsman
or resolutions of the officers exercising
COMELEC and COA; judicial or quasi-  Q. How may final judgments or final orders
judicial functions; of the Ombudsman be appealed?
Filed within 30 days Filed within 60 days
from notice of the from notice of the
A. Appeals from decisions of the Office of the
judgment; judgment;
The filing of a motion The period within
Ombudsman in administrative disciplinary
for reconsideration or a which to file the cases should be taken to the Court of
motion for new trial, if petition, if the motion Appeals under the provisions of Rule 43. x xx
allowed, interrupts the for reconsideration or With regard to orders, directives, or decisions
period for the filing of new trial is denied, is of the Ombudsman in criminal or non-
the petition for 60 days from notice of administrative cases, the Court, in Tirol, Jr.
certiorari. If the motion the denial of the vs. Del Rosario, held that the remedy for the
is denied, the aggrieved motion. same is to file a petition for certiorari under
party may file the
Rule 65 of the Rules of Court.an aggrieved
petition within the
remaining period, but
party is not without recourse where the
which shall not be less finding of the Ombudsman as to the
than 5 days reckoned existence of probable cause is tainted with
from the notice of grave abuse of discretion, amounting. to lack
denial. or excess of jurisdiction. An aggrieved party
Not under concurrent Under concurrent may file a petition for certiorari under Rule 65
jurisdiction because it is jurisdiction. of the 1997 Rules of Civil Procedure
―exclusive original‖. (Gatchalian vs. Ombudsman, G.R. No. 229288,
August 1, 2018).
As to Periods:
3.R.2q. Review of final judgments or final
Period Rule 64 Rule 65 orders of the National Labor Relations
Time 30 days 60 days Commission
Frame
Reckoning From notice of From receipt of Judgments of the NLRC are to be brought first to
Period judgment. denial of Motion for the CA by way of petition for certiorari under Rule

168 Center for Legal Education and Research

 Purple Notes
Remedial Law
65 wihtin 60 days from notice of decision, not required to be brought to the CA under the
under Rule 43 of the Rules of Court (St. Martin requirements and conditions set forth in Rule
Funeral Homes vs. NLRC, G.R. No. 130866, September 43. This rule was adopted precisely to
16, 1998). provide a uniform rule of appellate procedure
from quasi-judicial bodies (Carpio vs. Sulu
 Q. May the final judgments or final orders of Resource Devt. Corp., G.R. No. 148267. August 8,
the National Labor Relations Commission be 2002).
subject for review? How?
Issues to be Raised
A. Judicial review of decisions of the NLRC is
permitted. However, this review is through a The appeal under Rule 43 may raise issues
petition for certiorari (i.e., special civil action involving questions of fact, of law or mixed
for certiorari) under Rule 65 of the Rules of questions of fact and law.
Court, rather than through an appeal(Manalo
vs. Ateneo de Naga University, G.R. No. 185058, Period of Appeal
November 9, 2015).
The appeal shall be taken within 15 days from:
3.R.2r. Review of final judgments or final
orders of Quasi-judicial Agencies a) Notice of the award, judgment, final order or
resolution;
Agencies included under Rule b) From the date of its last publication, if
43(C4LOSIN2G-VEB2·SPADE) publication is required by law for its
effectivity; or
1. Civil Service Commission; c) The denial of petitioner's motion for new trial
2. Central Board of Assessment Appeals; or reconsideration.
3. Securities and Exchange Commission;
4. Office of the President; Note: Only one (1) motion for reconsideration
5. Land Registration Authority; shall be allowed(Rule 43, Sec. 4).
6. Social Security Commission;
7. Civil Aeronautics Board; Extension of Filing
8. Bureau of Patents, Trademarks and
Technology Transfer; Upon proper motion and the payment of the full
9. National Electrification Administration; amount of the docket fee before the expiration of
10. Energy Regulatory Board; the reglementary period, the Court of Appeals
11. National Telecommunications Commission; may grant an additional period of fifteen (15)
12. Department of Agrarian Reform under R.A. days only within which to file the petition for
6657; review. No further extension shall be granted
13. GSIS; except for the most compelling reason and in no
14. Employee Compensation Commission; case to exceed fifteen (15) days(Rule 43, Sec. 4).
15. Agricultural Inventions Board;
16. Insurance Commission; Stay of Judgment
17. Philippine Atomic Energy Commission;
18. Board of Investments; The appeal shall not stay the award, judgment,
19. Construction Industry Arbitration final order or resolution sought to be reviewed
Commission; and UNLESS the CA shall direct otherwise upon such
20. Voluntary Arbitrators authorized by law (Rule terms as it may deem just (Rule 43, Sec. 12).
43, Sec. 1).
In Rule 40 (Appeal from the MTC to the RTC), 41
Notes: (Appeal from the RTC), and 42 (Petition for
Review from the RTC to the CA), the judgment is
 Appeals from judgments and final orders of stayed, unlike in Rule 43 (Appeals from Quasi-
quasi-judicial bodies/agencies are now judicial Agencies to the C.A.); parties must apply

Bar Operations C ommissions 169

 Purple Notes
Remedial Law
for restraining order and preliminary injunction to
stay judgment.  An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals
Rule 42 Rule 43 raising only questions of law shall be
Decision is stayed by an Decision is immediately dismissed, issues purely of law not being
appeal. executory. It is not reviewable by said court(Rule 50, Sec. 2).
stayed by an appeal.  An appeal by notice of appeal instead of by
Factual findings are Factual Findings are petition for review from the appellate
not conclusive to the conclusive to CA if judgment of a Regional Trial Court shall be
CA. supported by substantial
dismissed(Rule 50, Sec. 2).
evidence.
 An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
DISMISSAL, REINSTATEMENT AND
outright(Mitsubishi Motors Philippines Corporation
WITHDRAWAL OF APPEAL
vs. Bureau of Customs, G.R. no. 209830, June 17,
2015).
 Dismissal of Appeal
b) Withdrawal of appeal
Grounds for dismissal of appeal
The withdrawal of an appeal maybe a matter of
1. Failure of the record on appeal to show on its
right or a matter of judicial discretion. Before the
face that the appeal was taken within the
filing of the appellee‘s brief, the appeal may be
period fixed by these Rules;
withdrawn as a matter of right. However, once
2. Failure to file the notice of appeal or the
the appellee‘s brief has been filed, the withdrawal
record on appeal within the period prescribed
may be allowed in the discretion of the court (Rule
by these Rules;
50, Sec. 3).
3. Failure of the appellant to pay the docket and
other lawful fees as provided in section 5,
Dual Function of Appellate Courts
Rule 40 and section 4 of Rule 41; (Bar Matter
No. 803, 17 February 1998)
An appellate court serves a dual function.
4. Unauthorized alterations, omissions or
additions in the approved record on appeal
1. Correctness function - The case is reviewed
as provided in section 4 of Rule 44;
on appeal to assure that substantial justice
5. Failure of the appellant to serve and file the
has been done. It is concerned with the
required number of copies of his brief or
justice of the particular case.
memorandum within the time provided by
these Rules;
2. Institutional function - the progressive
6. Absence of specific assignment of errors in
development of the law for general application
the appellant's brief, or of page references to
in the judicial system. It is concerned with the
the record as required in section 13,
articulation and application of constitutional
paragraphs (a), (c), (d) and (f) of Rule 44;
principles, the authoritative interpretation of
7. Failure of the appellant to take the necessary
statutes, and the formulation of policy within
steps for the correction or completion of the
the proper sphere of the judicial function.
record within the time limited by the court in
its order;
The duality also relates to the dual function of all
8. Failure of the appellant to appear at the
adjudication in the common law system.
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
1. Doctrine of res judicata, which decides the
the court without justifiable cause; and
case and settles the controversy;
9. The fact that the order or judgment appealed
2. Doctrine of stare decisis, which pertains to the
from is not appealable(Rule 50, Sec. 1). (1a)
precedential value of the case which assists in
Notes:
deciding future similar cases by the

170 Center for Legal Education and Research

 Purple Notes
application of the rule or principle derived
from the earlier case.
With each level of the appellate structure, the
review for correctness function diminishes and
the institutional function, which concerns itself
with uniformity of judicial administration and the
progressive development of the law, increases.
(Re: Letter Complaint of Merlita B. Fabiana Against
Presiding Justice Andres B. Reyes, Jr., et al. 700 SCRA
348 , July 02, 2013)
Remedial Law
A.2.A petition for relief from judgment is an
equitable remedy that is allowed in
exceptional cases where there is no other
available or adequate remedy (Cagayan
Economic Zone Authority vs. Meridien Vista
Gaming Corporation, G.R. No. 194962, January 27,
2016).
Motion fo New Trial/Consideration (Rule
37) vs. Petition for Relief from Judgment
(Rule 38)

Harmless Error Rule in Appellate Decisions RULE 37 RULE 38

Available before Available after judgment
No error in either the admission or the exclusion judgment becomes final has become final and
of evidence and no error or defect in any ruling and executory. executory.
or order or in anything done or omitted by the Applies to judgments or Applies to judgments, final
trial court or by any of the parties is ground for final orders only. orders and other
proceedings:
granting a new trial or for setting aside,
 Land Registration
modifying, or otherwise disturbing a judgment or  Special Proceedings
order, unless refusal to take such action appears  Order of Execution
to the court inconsistent with substantial justice. Grounds for MNT: Grounds: FAME
The court at every stage of the proceeding must 1. FAME
disregard any error or defect which does not 2. Newly-discovered
affect the substantial rights of the parties. (Rule evidence
51,Sec. 6)
Ground for MR:
3.R.3. Relief from Judgments, Orders and 1. the damages
awarded are
Other Proceedings(Rule 38)
excessive;
2. the evidence is
 Q.What is a Petition for Relief from insufficient to
Judgment? justify the decision
or final order; or
A.1. Relief from judgment is a remedy 3. The decision or
provided by law to any person against whom final order is
a decision or order is entered through fraud, contrary to law.
accident, mistake, or excusable When availed of: within When availed of:
negligence. This remedy is equitable in the time to appeal. within 60 days from
knowledge of the
character, allowed only in exceptional cases
judgment; and,
where there is no other available or adequate within 6 months from
remedy provided by law or the entry of judgment.
rules. Generally, relief will not be granted to a If denied, the Order of If denied, the order
party who seeks avoidance from the effects Denial is not denying the petition for
of the judgment when the loss of the remedy appealable; the remedy relief is not appealable;
at law was due to the negligence of his is appeal from the the remedy is appropriate
counsel because of the time-honored judgment. civil action under Rule 65.
principle that clients are bound by the Legal Remedy. Equitable Remedy.
mistakes and negligence of their Motion need not be Petition must be verified.
verified.
counsel(Cagayan Economic Zone Authority vs.
Meridien Vista Gaming Corporation, G.R. No.
194962, January 27, 2016). Note: A party who has filed a MNT, but which
was denied, cannot file a petition for relief. These
two remedies are exclusive of each other. It is

Bar Operations C ommissions 171

 Purple Notes
Remedial Law
when a party aggrieved by a judgment has not
been able to file a MNT that a petition for relief
can be filed (Francisco vs. Puno, G.R. No. L-55694
October 23, 1981).
Who may Avail
A petition for relief from judgment, together with
a motion for new trial or reconsideration, are
remedies available only to parties' in the
proceedings' where the assailedjudgment is
rendered.In fact, it has been held that a person
who was never a party to the case, or even
summoned to appear therein, cannot avail of a
petition for relief from judgment(Alaban vs. Court
of Appeals, G.R. No. 156021, September 23, 2005).
3.R.3a. Grounds for Petition for Relief
1. A judgment or final order is entered, or any
other proceeding is thereafter taken against a
party, in any court, through Fraud, Accident,
Mistake, or Excusable negligence(Rule 38,
Sec. 1); or
2. A judgment or final order is rendered by any
court in a case, and a party thereto, by
Fraud, Accident, Mistake, or Excusable
negligence, has been prevented from taking
an appeal(Rule 38, Sec. 2).
Notes:
 If the petition is filed based on the first
ground, it shall be filed with such court and
in the same case (not in another or higher
court). The petition shall pray that the
judgment, order or proceeding be set aside
(Rule 38, Sec. 1,).
 If the petition is filed based on the second
ground, it shall, likewise, be filed with such
court and in the same case (not in another or
higher court) but the prayer this time is that
the appeal be given due course (Rule 38, Sec.
2).
3.R.3b. Time to file Petition
A petition for relief from judgment must be
verified, filed within:
172 Center for Legal Education and Research
a. 60 days after the petitioner learns of the
judgment, final order or other proceedings to
be set aside; and
b. Not more than six (6) months after such
judgment or final order was entered, or such
proceeding taken (Rule 38, Sec. 3).
Note: It must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioner‘s good and substantial
cause of action or defense, as the case may be
(Rule 38, Sec. 3).
Answer to the Petition - Filed within fifteen
(15) days from the receipt of the Petition.
3.R.3c. Contents of Petition
1. The petition must be verified;
2. Accompanied with affidavits showing FAME
relied upon; and
3. The facts constituting the petitioner's good
and substantial cause of action or defense, as
the case may be (Rule 38, Sec. 3,).
 Petition based on the first ground –
petition shall pray that the judgment,
order or proceeding be set aside
 Petition based on the second ground
– petition shall pray that that the appeal
be given due course.
Two Hearings under Rule 38:
a) A hearing to determine whether the
judgment, order or proceeding should be set
aside; and
b) If yes, a hearing on the merits of the case.
Note: Failure to file an answer to the petition for
relief does not constitute default since even
without such answer, the court will still have to
hear the petition and determine its merits.
3.R.4. Annulment of Judgments or Final
Orders And Resolutions(Rule 47)
Annulment of judgment is remedy in law
independent of the case where the judgment
sought to be annulled was rendered and which
may be availed of though the judgment has been

executed(Riano, Civil Procedure Volume I, 2016 ed.,
P.583).
Important Conditions:
 The petitioner failed to move for new trial in,
or appeal from, or file a petition for relief
against, or take other appropriate remedies
assailing the questioned judgment or final
order or resolution through no fault
attributable to him(Riano, Civil Procedure
Volume I, 2016 ed., p. 584).
 If he failed to avail of those other remedies
without sufficient justification, he cannot
resort to annulment provided in this Rule.
Otherwise, he would benefit from his own or
negligence(Republic vs. Sandiganbayan, G.R. No.
140615. February 19, 2001).
 Q.When may a final and executory judgment
be set aside?
A.A final and executory judgment may still be
set aside if, upon mere inspection thereof, its
patent nullity can be shown for having been
issued without jurisdiction or for lack of due
process of law. Annulment of judgment
under Rule 47 is an exception to the final
judgment rule (Diona vs. Balangue, G.R. No.
173559, January 7, 2013).
 Q. When is the remedy of annulment of
judgment available?
Purple Notes
Remedial Law
3.R.4a. Grounds for Annulment (LED)
 Extrinsic Fraud;
 Lack of jurisdiction over the subject matter
and over the person (Rule 47,Sec. 2)
 Denial of due process (Alaban vs. CA, G.R. No.
156021, Sept. 23, 2005).
Reminders:
 Fraud must be extrinsic and committed by
the adverse party, not by plaintiff‘s own
counsel who misled said plaintiff.
 Extrinsic fraud shall not be a valid ground if
it was availed of, or could have been availed
of, in a motion for new trial or petition for
relief (Rule 47, Sec. 2).
 The CA has exclusive original jurisdiction in
actions to annul judgments of the RTC;
while the RTC has jurisdiction to annul
judgments of MTC in the region.
 Actions to annul judgments are not
necessarily limited to those principally or
secondarily bound thereunder. Any person
adversely affected thereby can enjoin its
enforcement.
Extrinsic or Collateral Fraud - any fraudulent
act of the prevailing party in the litigation which
is committed outside of the trial of the case,
whereby the defeated party was prevented from
exhibiting fully and fairly presenting his side of
the case.
3.R.4b. Period to file action

A.Annulment of judgment is a recourse EXTRINSIC LACK OF

equitable in character, allowed only in FRAUD JURISDICTION
exceptional cases as where there is no Period for 4 years from Before it is barred
available or other adequate remedy. filing discovery(Rule by laches or
Jurisprudence and Section 2, Rule 47 of the action 47, Sec. 3) estoppel
Rules of Court lay down the grounds upon Effect of (1) Trial court Questioned
which an action for annulment of judgment judgment will try the case judgment or order
as if motion for shall be set aside
may be brought, i.e., (1) extrinsic fraud, and
new trial was and rendered void.
(2) lack of jurisdiction or denial of due granted(Rule 47,
process. Lack of jurisdiction refers to either Sec. 7);
lack of jurisdiction over the person of the (2) Prescriptive
defending party or over the subject matter of period shall
the claim, and in either case, the judgment NOT be
or final order and resolution are void (Baclaran suspended if
Marketing Corporation vs. Nieva, G.R. No. 189881, the extrinsic
April 19, 2017). fraud is

Bar Operations C ommissions 173

 Purple Notes
Remedial Law
attributable to
the plaintiff in
the original
action(Rule 47,
Sec. 8)
Where to file
a. Judgment of MTC – file with the RTC
b. Judgment of RTC – file with the CA
 If the petition is filed in the CA, it can dismiss
the petition outright because the same is a
matter of discretion on the part of the said
court.
 If the petition is filed in the RTC, it cannot
dismiss the petition outright because the
action to annul the judgment of the MTC in
the RTC is a matter of right.
 Rule 47 refers to the annulment of decision
of RTC and/or MTC, and not of the CA.
Who may file
An action for annulment can be filed by one who
was not a party to the action in which the
assailed judgment was rendered. It is a remedy
in law independent of the case where the
judgment sought to be annulled is promulgated
(Villanueva vs. Nite, G.R. No. 148211, July 25, 2006).
A person need not be a party to the judgment
sought to be annulled to acquire personality to
file the action. What is essential is that he can
prove his allegation that the judgment was
obtained by the use of fraud and collusion, and
he would be adversely affected thereby (Alaban
vs. CA, G.R. No. 156021, Sept. 23, 2005).
Two stages of this proceeding:
 A preliminary evaluation of the petition to
determine prima facie merit therein,
 The issuance of summons as in ordinary civil
cases and such appropriate proceedings
thereafter as contemplated in Section 6,
Rule 14.
For the court to acquire jurisdiction over the
respondent, the rule requires the issuance of
summons should prima facie merit be found in
the petition and the same is given due course.
174 Center for Legal Education and Research
 Q. Is a petition for relief from judgment
available in the Supreme Court and Court of
Appeals?
A.A petition for relief from judgment is not
an available remedy in the Court of Appeals
and the Supreme Court.As it stands, neither
the Rules of Court nor the Revised Internal
Rules of the CA allows the remedy of petition
for relief in the CA. If a petition for relief
from judgment is not among the remedies
available in the CA, with more reason that
this remedy cannot be availed of in the
Supreme Court. (Purcon vs. MRM Philippines,
G.R. No. 182718, September 26, 2008)
3.R.4c. Effects of a Judgment of Annulment
Based on Lack of Jurisdiction: A judgment of
annulment shall set aside the questioned
judgment or final order or resolution and render
the same null and void, without prejudice to the
original action being refiled in the proper court
(Rule 47,Sec. 7).
Based on Extrinsic Fraud: Where the
judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court, upon
motion, may order the trial court to try the case
as if a motion for new trial was granted (Rule
47,Sec. 7).
Notes:
 The prescriptive period for the refiling of the
original action shall be deemed suspended
from the filing of such original action until the
finality of the judgment of annulment
EXCEPT where the extrinsic fraud is
attributable to the plaintiff in the original
action. (Rule 47, Sec. 8)
 The judgment of annulment may include the
award of damages, attorney‘s fees and other
relied. The court may issue such orders of
restitution or other relief as justice and equity
may warrant under the circumstances if the
questioned judgment or final order or
resolution had already been executed(Rule 47,
Sec. 9).

3.R.5. COLLATERAL ATTACK ON
JUDGMENTS
Indirect or Collateral Attack - is made when,
in another action to obtain a different relief, an
attack on the judgment is made as an incident in
said action. This is proper only when the
judgment on its face is null and void, as where it
is patent that the court, which rendered said
judgment has no jurisdiction (Spouses Amancio vs.
CA, G.R. No. 152627 September 16, 2005).
Direct Attack - when the object of an action is
to annul or set aside such proceeding, or enjoin
its enforcement.
 Q. What is Direct attack and Collateral attack
upon a judgment?
A. Direct attack against a judgment is
made through an action or proceeding the
main object of which is to annul, set aside, or
enjoin the enforcement of such judgment, if
not carried into effect, or if the property has
been disposed of, the aggrieved party may
sue for recovery.
Collateral attack is made when, in another
action to obtain a different relief, an attack
on the judgment is made as an incident in
said action. This is proper only when the
judgment on its face is null and void, as
where it is patent that the court, which
rendered said judgment has no jurisdiction
(Spouses Amancio vs. CA, G.R. No. 152627
September 16, 2005).
Examples:
1. A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an
order annulled.
2. An action for annulment of a judgment is
likewise a direct attack on a judgment.
3. A motion to dismiss a complaint for
collection of a sum of money filed by a
corporation against the defendant on the
ground that the plaintiff has no legal
capacity to sue is a collateral attack on the
corporation. A motion to dismiss is incidental
to the main action for sum of money. It is
not filed as an action intended to attack the
Purple Notes
Remedial Law
legal existence of the plaintiff (Co vs. CA, G.R.
no. 93687. May 6, 1991).
3.S. EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS (Rule 39)
 Q. What is an Execution?
A. Execution under Rule 39 of the Revised
Rules of Court is a remedy afforded by law
for the enforcement of a judgment, its object
being to obtain satisfaction of the judgment
on which the writ is issued (Cagayan De Oro
Coliseum, Inc. vs. CA, G.R. no. 129713, December
15, 1999).
 Q. What consists the dispositive portive
portion of the judgment?
A. The dispositive portion (also called ―fallo‖)
of the judgment is that part which is subject
to execution uner Rule 39 of the Rules of
Court. This portion of the judgment as that
which finally vests rights upon the parties,
sets conditions for the exercise of those
rights, and imposes the corresponding duties
and obligations. Hence, if there is a conflict
between the dispositive portion of the
decision and the body thereof, the dispositive
portion controls irrespective of what happens
in the body. (Florentino vs. RiveraG.R. No.
167968, Janury 23, 2006).
Against whom is execution issued
Execution can only be issued against a party and
not against one who has not had his day in
court(Power Sector Assets and Liabilities Management
Corporation vs. Maunlad Homes Inc., G.R. no. 215933.
February 8, 2017).
Essential Requisites for a Writ of Execution
1. It must conform strictly to the decision or
judgment which gave life to it;
2. It cannot vary the terms of the judgment it
seeks to enforce nor may it go beyond the
terms of the judgment sought to be
executed; and
3. It must conform to the dlspositive portion of
the decision to be executed(Riano, Civil
Procedure Volume I, 2016, pg. no. 607).
Bar Operations C ommissions 175
 Purple Notes
Remedial Law
Meaning of Final Judgment merits of the case. Restaurant vs. Beronia,
G.R. no. 206690. July 11,
The term ―final‖, when used to describe a 2016).
judgment, may be used in two senses:
Amendment of a Final and Executory
1. Final Judgment for Purposes of Appeal - Judgment
Judgment that disposes of a case in a
manner that leaves nothing more to be done General Rule: Amendment is NOT allowed.
by the court in respect thereto. In this sense,
a final judgment is distinguished from an Exceptions:
interlocutory order which does not finally 1. To make corrections of clerical errors,
terminate or dispose of the case (Rudecon mistakes or omissions (amendments nunc pro
Management Corp. vs. Singson, G.R. No. 150798 tunc);
March 31, 2005). 2. To clarify an ambiguity which is borne out by
and justifiable in the context of the decision,
2. Final Judgment for Purposes of especially if the parties acquiesced thereto;
Execution - Judgment that is no longer and,
appealable and is already capable of being 3. In judgments for support, which can always
executed because the period for appeal has be amended from time to time, in the light of
elapsed without a party having perfected an the circumstances of the parties(Riano, Civil
appeal or, if there has been appeal, it has Procedure Volume I, 2016 ed., P. 488).
already been resolved by a highest possible
tribunal(PCGG vs. Sandiganbayan, G.R. Nos. Relevance of Finality of a Judgment or
151809-12, April 12, 2005). Order

In this sense, the judgment is commonly referred General Rule: Only judgments and orders which
to as one that is final and executory. are final may be executed.

3.S.1. Difference Between Finality of Exceptions: (SIRA)

Judgment for Purposes of Appeal;
ForPurposesof Execution
FOR PURPOSES OF FOR PURPOSES OF
APPEAL EXECUTION
Final judgments are After lapse of period to
appealable. appeal and no appeal
was perfected, no further
Interlocutory orders are action can be had(Perez
not appealable. et.al. vs. Zulueta, G.R.
no. L-10374. September
30, 1959).
Execution of final Execution is a matter of
judgment in this sense right (Vargas vs.
may not be a matter of Cajucom, G.R. no.
right as when the 171095. June22, 2015).
period to file an appeal
has not lapsed.
To determine whether To determine whether
a judgment is final or judgment is final, the test
interlocutory, the test is is whether the lapse of
whether the judgment the reglementary period
or order leaves nothing to appeal has lapsed and
more for the court to no appeal has been
do with respect to the perfected(Barrio Fiesta
a) Orders granting Support even if the main case
is still pending.
b) Orders in Injunctions.
c) Orders in Receivership; and
d) Orders in Accounting cases.
3.S.2. When Execution shall issue
A final and executory judgment or order may be
executed on motion within five (5) years from the
date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a
judgment may be enforced by action (Rule 39,
Sec. 6).
Refusal of the court to issue a writ of
execution
General Rule: Where the judgment or order has
become executory, the court cannot refuse to
issue a writ of execution.

176 Center for Legal Education and Research


Exceptions:
a) When the judgment has already been
executed by the voluntary compliance thereof
by the parties;
b) When the Judgment has been novated by the
parties;
c) When the petition for relief is filed and
preliminary injunction is granted in
accordance with Sec. 5 of Rule 38. Also, when
execution of judgment is enjoined by a higher
court;
d) When the judgment sought to be executed is
conditional;
e) When facts and circumstances transpire which
would render execution inequitable or unjust;
f) When the execution is sough more than 5
years from its entry without the judgment
having been revived;
g) When execution is sought against property
exempt from execution under Sec. 13 of Rule
39; or
h) When the refusal to execute the judgment has
become imperative in the higher interest of
justice (Riano, Civil Procedure, Vol. I, 2016 ed.
pp.608-609).
3.S.2a. Execution as a Matter of Right
It shall issue upon the expiration of the period to
appeal, on motion, if no appeal was perfected
from a judgment or order that disposes of the
action or proceeding (Rule 39, Sec. 1).
Issuance of a writ of execution becomes
ministerial duty of the court (Riano, Civil Procedure,
Volume 1, 2016 ed., p. 604).
General Rule: Execution will issue as a matter
of right only when:
a) The judgment has become final and
executory;
b) The judgment debtor has renounced or
waived his right of appeal;
c) The period for appeal has lapsed without an
appeal having been filed; or
d) Having been filed, the appeal has been
resolved and the records of the case have
been returned to the court of origin.
Purple Notes
Remedial Law
Exception: Execution pending appeal(City of
Iligan vs. Principal Management Group , Inc., G.R. No.
145260, July 31, 2003)
 Q. When will the issuance of a writ of
execution becomes ministerial duty of the
court?
A. Once a judgment becomes final and
executory, the prevailing party can have it
executed as a matter of right, and the
issuance of a writ of execution becomes the
ministerial duty of the court. Once a decision
becomes final and executory, it is the
ministerial duty of the presiding judge to
issue a writ of execution except in certain
cases, as when subsequent events would
render execution of judgment unjust
(Mangahas vs. Paredes, G.R. no. 157866,
February 14, 2007).
3.S.2b. Discretionary Execution
Discretionary execution is called ―discretionary‖
precisely because it is not a matter of right. The
execution of a judgment under this concept is
addressed to the discretionary power of the court
(Bangkok Bank Public Company Ltd. vs. Lee, G.R.No.
159806, January 29, 2006).
Kinds of Discretionary Execution
1. Execution pending appeal; and,
2. Execution of several, separate or partial
judgment (Florendo vs. PIC, G.R. No. 167976,
January 20, 2010).
Requisites of Execution Pending Appeal
(MH-GG)
1. Motion by prevailing party with notice to the
adverse party;
2. Hearing on the motion;
3. Good reasons to justify the discretionary
execution; and,
4. Good reasons must be stated in the special
order(Rule 39,Sec. 2).
 Q. In what instances will an execution
pending appeal considered as a matter of
right?
Bar Operations C ommissions 177
 Purple Notes
Remedial Law
A. An execution pending appeal is deemed Stay of Discretionary Execution
an exception to the general rule, which
allows an execution as a matter of right only Discretionary execution may be stayed upon
in any of the following instances: approval by the proper court of a sufficient
i. when the judgment has become final supersedeas bond filed by the party against
and executory; whom it is directed, conditioned upon the
ii. when the judgment debtor has performance of the judgment or order allowed to
renounced or waived his right of be executed in case it shall finally be sustained in
appeal; whole or in part(Rule 39, Sec. 3).
iii. when the period for appeal has lapsed
without an appeal having been filed; or Note:Supersedeas Bond is a bond filed by a
iv. when, having been filed, the appeal has petitioner which guarantees satisfaction of the
been resolved and the records of the judgment in case it is affirmed on appeal. It must
case have been returned to the court of be approved by the court before the judgment
origin (Abenion vs. Pilipinas Shell Petroleum becomes final and executory.
Corporation, G.R. No. 200749, February 6,
2017). Judgments not stayed by appeal (Rule 39,
Sec. 4)
 Q.What are Goods Reasons that justifies
discretionary execution?
General Rule: Judgment is stayed by appeal
A.Good reasons consist of compelling
Exception: Judgment in the following actions
circumstances justifying immediate execution
are immediately executory:(IRAS2)
lest judgment becomes illusory, or the
prevailing party after the lapse of time be
a) Injunction.
unable to enjoy it, considering the tactics of
b) Receivership.
the adverse party who may have apparently
c) Accounting.
no cause but to delay. Such reasons must
d) Support
constitute superior circumstances demanding
e) Such other judgments declared to be
urgency which will outweigh the injury or
immediately executory
damages should the losing party secure a
reversal of the judgment. Were it otherwise,
Effect of Reversal of Executed Judgment
execution pending appeal may well become a
(Rule 39, Sec. 5)
tool of oppression and inequity instead of an
instrument of solicitude and justice(NAPOCOR Where the judgment subject to discretionary
vs. Heirs of Rabie, G.R. No. 210218, August 17,
execution is reversed or annulled, the trial court
2016).
may, on motion, issue such orders of restitution
Where to File an Application For or reparation of damages as equity and justice
Discretionary Execution may warrant under the circumstances

Lower Court Appellate Court 3.S.3. How Judgment is Executed

While it has After the trial court has
jurisdiction over the lost jurisdiction.  By motion, within 5 years from date of the
case and is in entry; or
possession of either
the original record or  By independent action, after the lapse of 5
the record on years from the date of its entry and before it
appeal(Riano, Civil is barred by the statute of limitations. The
Procedure Volume I,
2016, p. 627). revived judgment may also be enforced by
motion within five (5) years from the date of
its entry and thereafter by action before it is

178 Center for Legal Education and Research


barred by the statute of limitations (Rule 39,
Sec. 6).
Judgments that may be altered or modified
after becoming final and executory:
Purple Notes
Remedial Law
Revival of judgment is premised on the
assumption that the decision to be revived, either
by motion or by independent action, is already
final and executory (Saligumba vs. Palanog, G.R. No.
143365, December 4, 2008).

i. Facts and circumstances transpire which An action to revive a judgment prescribes in 10

render its execution impossible or unjust; years from the finality of the judgment (Art.
ii. Support; 1144[3], in relation to Art. 1152, NCC).Since the date
iii. Interlocutory judgment. of the finality of the judgment or final order shall
be deemed to be the date of its entry, the
prescriptive period is supposed to run from the
3.S.3a. Execution by Motion or by date of entry of the judgment. (Riano, Civil
Independent Action Procedure, Vol. I, 2016 ed. p.612)

M Within 5 No revival of Executed by When a judgment is revived under Sec. 6 of Rule

O years from judgment motion. 39, such revived judgment may also be enforced
T date of entry needed.
by motion within 5 years from the date of its
I of judgment
entry and thereafter, by action also before it is
O
N barred by the statute of limitations.
After 5 years Revival of Once revived,
but before judgment by execution may  Q. Is revived judgment a continuation of the
10 years means of be by motion original judgment?
from the independent since the
date of entry action / revival is in A. A revived judgment is deemed a new
A
of judgment. petition. nature of a judgment separate and distinct from the
C
new judgment original judgment. It is not a continuation of
T
The right to separate and
I the original judgment. The action to revive
execution is distinct from
O judgment is a new action and results in a
reduced to a the original
N new judgment constituting a new cause of
right of action judgment (See
which may be First Row). action with a new period of limitations.
proceeded in Hence, the 10-year period to revive the
a separate revived judgment shall commence to run
action. from the date of the finality of the revived
judgment and not from the date of finality of
the old, original judgment (PNB vs. Bondoc,
Revival of Judgment
G.R. no. L-20236. July 30, 1965).

An action for revival of judgment is no more than
a procedural means of securing the execution of
a previous judgment which has become dormant
after the passage of five years without it being
executed upon motion of the prevailing party.
It is a new and independent action, different and
distinct from either the recovery of property case
or the reconstitution case, wherein the cause of
action is the decision itself and not the mertis of
the action upon which the judgment sought to be
enforced is rendered.
3.S.3b. Issuance And Contents Of A Writ Of
Execution
Writ of Execution
It is the judicial writ issued to an officer
authorizing him to execute the judgment of the
court.
Contents of a Writ of Execution
The writ of execution is issued in the name of the
Republic of the Philippines and shall state:

Bar Operations C ommissions 179

 Purple Notes
Remedial Law
1. The name of the court which granted the
motion.
2. The case number and title.
3. The dispositive portion of the judgment or
order subject of the execution; and
4. A statement requiring the sheriff or other
proper officer to whom it is directed to
enforce the writ according to its terms(Rule
39, Sec. 8).
The writ of execution shall continue in effect
during the period which the judgment may be
enforced by motion. (Rule 39, Sec. 14) Hence, the
writ is enforceable within the five-year period
from entry of judgment as provided for in Sec. 6
of Rule 39 because within that period, the writ
may be enforced by motion. (Riano, Civil
Procedure, Vol. I, 2016 ed. p.608)
A Motion for Execution must be:
1. In writing
2. With hearing
3. With notice
Note: Non-compliance makes the motion pro
forma.
Execution of Several Judgments
This is availed of when the winning party seeks a
judgment against one or more of several
defendants. The court may grant execution with
respect to said defendant or defendants.
Execution of Separate or Partial Judgments
This may be sought in court at any stage of an
action to dispose of a particular claim, while the
action is being heard of with regard to the other
claims that have not been settled yet or are still
awaiting resolution.
Execution in case of death of party (Rule 39,
Sec. 7)
a) In case of the death of the judgment obligee,
upon the application of his executor or
administrator, or successor in interest;
b) In case of the death of the judgment obligor,
against his executor or administrator or
successor in interest, if the judgment be for
180 Center for Legal Education and Research
the recovery of real or personal property, or
the enforcement of a lien thereon;
c) In case of the death of the judgment obligor,
after execution is actually levied upon any of
his property, the same may be sold for the
satisfaction of the judgment obligation, and
the officer making the sale shall account to
the corresponding executor or administrator
for any surplus in his hands.
Notes:
 If the obligor dies after the entry but before
levy on his property, execution will be issued
for recovery of real or personal property or
enforcement of lien thereon(Riano, Civil
Procedure Volume I, 2016, pg. no. 628).
 If he dies after levy has been made,
execution sale proceeds(Riano, Civil Procedure
Volume I, 2016, pg. no. 628).
 For a sum of money, judgment cannot be
enforced by writ but as a claim against the
estate in probate proceedings.
When a Writ of Possession may be issued
Writ of Possession may be issued under the
following instances: (LJEE)
1. In Land registration proceedings;
2. In a Judicial foreclosure, provided the debtor
is in possession of the mortgaged realty and
no third person, not a party to the
foreclosure suit, had intervened;
3. In an Extrajudicial foreclosure of a real estate
mortgage; and
4. In Execution sales (Sps. Reyes vs. Sps. Chung,
G.R. No. 228112, September 13, 2017).
Grounds for Quashal of a writ of execution
General Rule: We have ruled that an order of
execution of a final and executory judgment, as
in this case, is not appealable; otherwise, there
would be no end to litigation. (D‘ Armoured
Security and Investigation Agency, Inc. Vs. Orpia, G.R.
No. 151325. June 27, 2005)
Exceptions:
a) the writ of execution varies the judgment;

b) there has been a change in the situation of
the parties making execution inequitable or
unjust;
c) execution is sought to be enforced against
property exempt from execution;
d) it appears that the controversy has never
been submitted to the judgment of the court;
e) the terms of the judgment are not clear
enough and there remains room for
interpretation thereof;
f) it appears that the writ of execution has been
improvidently issued;
g) it appears that it is defective in substance, or
is issued against the wrong party, or that the
judgment debt has been paid or otherwise
satisfied, or the writ was issued without
authority (Reburiano vs. Court of Appeals, G.R.
No. 102965 January 21, 1999).
Return of writ of execution
The writ of execution must be returned to the
issuing court after partial or full satisfaction of
judgment. If the judgment cannot be satisfied in
full within 30 days after his receipt of the writ,
the officer shall report to the court and state the
reason and thereafter make periodic reports until
judgment is satisfied. The writ continues to be
effective during such period of time that the
judgment may be enforced by motion -- 5 years.
(Rule 39,Sec. 14)
 Q. How many days is a sheriff required by
the Rules of Court to render a report on the
action taken on a writ of execution?
A.Within 30 days from receipt thereof and
every 30 days thereafter until the judgment
is fully satisfied, a sheriff is required by the
Rules of Court to render a report on the
action taken on a writ of execution. xxx
When a writ of execution is placed in the
hands of a sheriff, it is his duty, in the
absence of contrary instructions, to have it
implemented forthwith. The sheriff is
primarily responsible for the speedy and
efficient service of all court processes and
writs originating from the court and its
branches, including such as may be properly
delegated to him by other courts. (Fajardo vs.
Quitalig, A.M. No.P-02-1535, March 28, 2003)
Purple Notes
Remedial Law
 Q. What is the effect of a decision that is left
unexecuted or delayed indefinitely because of
the sheriff‘s inefficiency or negligence?
A. A decision that is left unexecuted or
delayed indefinitely because of the sheriff‘s
inefficiency or negligence remains an empty
victory on the part of the prevailing party. X
xx For this reason, any inordinate delay in
the execution of judgment is truly deplorable
and cannot be countenanced by the Court.
There is no mistaking the mandatory
character of the period prescribed under
Section 14 of Rule 39 of the Revised Rules of
Court on the Return of a Writ of Execution
(Morta vs. Bagagnan, A.M. MTJ-03-1512,
November 12, 2003).
3.S.3c. Execution of Judgments For
Money(Rule 39,Sec. 9)
It may be enforced by:
 Immediate payment on demand;
 Satisfaction by levy; or
 Garnishment of debts and credits
How executed
1. In executing a judgment for money, the
sheriff shall demand from the judgment
obligor the full amount in cash or certified
check payable to the judgment debtor.
2. If the judgment debtor has no cash or check,
the officer shall levy upon his properties but
the judgment debtor has the option to
choose which property shall be levied upon.
3. If the option is not exercised, the officer shall
first levy on the personal properties and then
other properties if the personal properties are
not sufficient [Rule 39,Sec 9 (b)].
4. The officer may also levy upon bank deposits
of the debtor, royalties, commissions, or his
credits and others not capable of manual
delivery by serving notice upon the person in
possession of the same. This is called
garnishment [Rule 39, Sec.9 (c)].
Requisites of payment on demand:
1. Demand by the sheriff.
2. Payable to the judgment obligee.
Bar Operations C ommissions 181
 Purple Notes
Remedial Law
3. Cash, check, or any payment acceptable to Garnishment
the judgment obliges.
Garnishment is the act of appropriation by the
If the judgment obligee or his authorized court when the property of the debtor is in the
representative is not present to receive payment, hands of third persons(Riano, Civil Procedure
the judgment obligor shall deliver the aforesaid Volume I, 2016, pg. no. 632).
payment to the executing sheriff who shall turn
over it on the same day to the clerk of court, or if Procedure of Garnishment
the same is not practicable, deposit said amount
to a fiduciary account. 1. A notice is served upon the third person
orgarnishee having in possession or controlof
In no case shall the executing sheriff demand the credits in favor of the judgmentobligor;
that any payment by check be made payable to 2. The garnishee shall make a written report to
him. the court within five (5) days from service of
the notice of garnishment stating whether or
Levy not the judgment obligor has sufficient funds
or credits to satisfy the amount of the
Levy is the act by which an officer sets apart or judgment. If sufficient, the garnishee shall
appropriates a part of the whole of the property deliver the amount in cash or certified check
of the judgment debtor for purposes of the directly to the judgment oblige within 10
execution sale(Riano, Civil Procedure Volume I, 2016, working days from service of notice on said
pg. no. 641).
garnishee;
3. The lawful fees shall be directly paid to the
 Q. When can the sheriff resort to levy?
court; and
4. If the amount is insufficient, the report shall
A. The levy upon the properties of the
state how much funds or credits the
judgment obligor may be had by the
garnishee holds for the judgment
executing sheriff only if the judgment obligor
obligor(Viscal Development Corporation vs. Dela
cannot pay all or part of the full amount
Ciujz-Buendia, A.M. no. P-12-3097. November 26,
stated in the writ of execution. If the 2012).
judgment obligor cannot pay all or part of the
obligation in cash, certified bank check, or Garnishment vs. Attachment
other mode acceptable to the judgment
obligee, the judgment obligor is given the
ATTACHMENT GARNISHMENT
option to immediately choose which of his
Refers to corporeal Refers to money, stocks,
property or part thereof, not otherwise property in the credits and other
exempt from execution, may be levied upon possession of the incorporeal property
sufficient to satisfy the judgment. If the judgment debtor which are not in
judgment obligor does not exercise the possession of the
option immediately, or when he is absent or judgment debtor(Caja vs.
cannot be located, he waives such right, and Nanquil, A.M. no. P-04-
the sheriff can now first levy his personal 1885. September 13,
properties, if any, and then the real 2004).
properties if the personal properties are
insufficient to answer for the
judgment(Leachon vs. Pascua, A.M. No. P-11- 3.S.3d. Execution of judgment for Specific
2972, September 28, 2011). Acts (Rule 39, Sec. 10)

Specific Acts (CSR-DD)

a) Conveyance, delivery of deeds, or other

specific acts vesting title.

182 Center for Legal Education and Research

 Purple Notes
Remedial Law
b) Sale of real or personal property. except upon may destroy,
c) Delivery or restitution of Real property. special order of demolish or
d) Removal of improvements on property the court. remove the
subject of execution; and improvements.
Delivery of officer shall The officer shall
e) Delivery of Personal property.
personal take possession take possession
property of the same and deliver to
SPECIFIC EFFECT IN MANNER OF and forthwith the party entitled
ACTS CASE OF EXECUTION deliver it to the thereto
REFUSAL OF party entitled
JUDGMENT to satisfy any
DEBTOR judgment for
Conveyance, May direct the Court can money as
delivery of act to be done appoint some therein
deeds, or by someone at other person at provided.
other specific the cost of the the expense of
acts; vesting disobedient the disobedient
title party. party and the act
General Rule: Refusal by the judgment debtor
done shall have to comply with judgment of the court is not a
the same effect ground to be cited in contempt of court(Pascua vs.
as if the required Heirs of Simeon, G.R. No. L-47717 May 2, 1988).
party performed
it. Exceptions:
Sale of Real Sell such
or Personal property and 1. Refusal to perform a particular act or special
propery apply the
judgments under Sec. 11;
proceeds in
2. In case of the provisional remedy of support
conformity with
the judgment pendente lite under Rule 61 even if the
Delivery or Officer shall If no demolition decision is not a special judgment and
restitution of demand the is involved and requires the latter to pay money.
real losing party to the party refuses
properties peaceably to deliver, a writ 3.S.3e. Execution of Special Judgments
vacate the of execution
property within directing the Special Judgment is one that can be complied
3 working sheriff to cause with only by the judgment obligor himself.
days, and the defendant to
restore vacate is in the
possession to nature of a When judgment requires the performance of any
the judgment habere facias act, other than for money and delivery of
oblige; possesionem and property, the writ of execution shall be served
otherwise the authorizes the upon the party required to obey the same and
officer shall sheriff to break such party may be punished for contempt by
oust such open the imprisonment, if he disobeys(Rule 39, Sec. 11).
disobedient premises where
party. there is no 3.S.3f. Effect of Levy on Third Persons
occupant therein
(not contempt).
Levy creates a lien in favor of the judgment
If demolition is obligee over the right, title and interest of the
involved, there judgment obligor in such property at the time of
must be a the levy, subject to liens and encumbrances then
special order. existing(Rule 39, Sec. 12).
Removal of the officer shall Obligee must file
improvements not destroy, a motion and  Q. What is the remedy of a third person
demolish or upon special whose property has been levied for
remove order of the
execution?
improvements court, the officer

Bar Operations C ommissions 183

 Purple Notes
Remedial Law
A. An execution can be issued only against a
party and not against one who did not have
his day in court. The duty of the sheriff is to
levy the property of the judgment debtor not
that of a third person. For, as the saying
goes, one man's goods shall not be sold for
another man's debts. Thus, if the property
levied by virtue of a writ of execution is
claimed by a third person who is not the
judgment obligor, the latter may execute an
affidavit of his title or right to the possession
of the property levied, and serve the same to
the officer making the levy and a copy
thereof to the judgment creditor. This
remedy is known as terceria(Power Sector
Assets and Liabilities Management Corporation
(PSALM) vs. Maunlad Homes, Inc., G.R. No.
215933, February 8, 2017).
 Q. What is a lien?
A.A lien is a ―legal claim or charge on
property, either real or personal, as a
collateral or security for the payment of some
debt or obligation. A lien, until discharged,
follows the property(Development Bank of the
Philippines vs. Clarges Realty Corporation, G.R.
No. 170060, August 17, 2016). .
Remedies Available to a third-party
Claimant in Levy of real property (SITA)
1. Summary hearing before the court which
authorized the execution;
2. Terceria or third party claim filed with the
sheriff;
3. Action for damages on the bond posted by
judgment creditors; or
4. Independent reinvindicatory action. (Rule 39,
Sec. 16)
Notes:
 The remedies are cumulative and may be
availed independently of or separately from
the others.
 The officer shall not be liable for damages for
the taking or keeping of the property, to any
third-party claimant if such bond is filed.
Nothing herein contained shall prevent such
claimant or any third person from vindicating
his claim to the property in a separate action,
184 Center for Legal Education and Research
or prevent the judgment obligee from
claiming damages in the same or a separate
action against a third-party claimant who
filed a frivolous or plainly spurious claim.
3.S.4. Properties Exempt from Execution
(Rule 39, Sec. 13)(FOH-CHI-LBS-GALE)
a) The judgment obligor's Family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith;
b) Ordinary tools and implements personally
used by him in hs trade, employment, or
livelihood;
c) Three Horses, or three cows, or three
carabaos, or other beasts of burden such as
the judgment obligor may select necessarily
used by him in his ordinary occupation;
d) His necessary Clothing and articles for
ordinary personal use, excluding jewelry;
e) Household furniture and utensils necessary
for housekeeping, and used for that purpose
by the judgment obligor and his family, such
as the judgment obligor may select, of a
value not exceeding one hundred thousand
pesos;
f) Provisions for Individual or family use
sufficient for four months;
g) The professional Libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not
exceeding three hundred thousand pesos in
value;
h) One Fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman and
by the lawful use of which he earns his
livelihood;
i) So much of the Salaries, wages, or earnings
of the judgment obligor of his personal
services within the four months preceding
the levy as are necessary for the support of
his family;
j) Lettered Gravestones;
k) Monies benefits, privileges, or Annuities
accruing or in any manner growing out of
any life insurance;
l) The right to receive Legal support, or money
or property obtained as such support, or any
pension or gratuity from the Government;

m) Properties speciallyExempt by law.
Note:But no article or species of property
mentioned in his section shall be exempt from
execution issued upon a judgment recovered for
its price or upon a judgment of foreclosure of a
mortgage thereon.
 Q. Are the exceptions enumerated also
applicable to juridical entities?
A.The above Rule clearly enumerates what
properties are exempt from execution. xxx
exemptions under this rule are confined only
to natural persons and not to juridical entities
such as petitioner (D‘ Armoured Security and
Investigation Agency, Inc. vs. Orpia, G.R. No.
151325. June 27, 2005).
3.S.5. Proceedings where property is
claimed by third persons;in relation to third
party claim in attachment and replevin
At any time, third-party claim may be filed so
long as the sheriff has the possession of the
property levied upon, or before the property is
sold under execution, provided:(PAPS)
1. The Property is Levied;
2. The claimant is a Person other than the
judgment obligor or his agent;
3. The claimant makes an Affidavit of his title
thereto or right to the possession thereof
stating the grounds of such right or title;
and,
4. He Serves the same upon the officer making
the levy and the judgment oblige(Rule 39, Sec.
16).
Duty of the Officer
General Rule: The officer shall NOT be bound
to keep the property.
Exception: When the judgment obligee, on
demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in
a sum not less than the value of the property
levied on.
Purple Notes
Remedial Law
Notes:
 In case of disagreement as to such value, the
same shall be determined by the court
issuing the writ of execution.
 No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action therefor is
filed within one hundred twenty (120) days
from the date of the filing of the bond.
 The officer shall not be liable for damages for
the taking or keeping of the property, to any
third-party claimant if such bond is filed.
 When the writ of execution 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 or levying officer is sued for damages
as a result of the levy, 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 such funds as may
be appropriated for the purpose(Rule 57, Sec.
14).
In Relation to Third Party Claim in
Attachment and Replevin
Certain remedies available to a third person not
party to the action but whose property is the
subject of execution:
Terceria – By making an affidavit of his title
thereto or his right to possession thereof, stating
the grounds of such right or title. The affidavit
must be served upon the sheriff and the
attaching party (Rule 57, Sec. 14).Upon service of
the affidavit upon him, the sheriff shall not be
bound to keep the property under attachment
except if the attaching party files a bond
approved by the court. the sheriff shall not be
liable for damages for the taking or keeping of
the property, if such bond shall be filed.
Exclusion or release of property – Upon
application of the third person through a motion
to set aside the levy on attachment, the court
shall order a summary hearing for the purpose of
determining whether the sheriff has acted rightly
or wrongly in the performance of his duties in the
execution of the writ of attachment. The court
Bar Operations C ommissions 185
 Purple Notes
Remedial Law
may order the sheriff to release the property
from the erroneous levy and to return the same
to the third person. In resolving the application,
the court cannot pass upon the question of title
to the property with any character of finality but
only insofar as may be necessary to decide if the
sheriff has acted correctly or not (Ching vs. CA,
G.R. No. 124642, February 23, 2004).
Intervention – This is possible because no
judgment has yet been rendered and under the
rules, a motion for intervention may be filed any
time before the rendition of the judgment by the
trial court (Rule 19, Sec 2).
AccionReinvindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in the
same or in a separate action. He may file a
separate action to nullify the levy with damages
resulting from the unlawful levy and seizure. This
action may be a totally distinct action from the
former case.
Sale of Property
Requisites:
1) At a public auction;
2) To the highest bidder;
3) Starting at the exact time fixed in the notice;
4) In the province where the land is situated;
5) Only so much of the property that will satisfy
the judgment; and,
6) Excess to be delivered to the judgment
obligor, unless otherwise directed by the
court.
Persons Disqualified to Participate in the
Sale:
 Officer conducting the sale and his deputies.
 Judge who issued the writ of execution; and
 Those prohibited by Article 1491 of the Civil
Code.
 Guardian, with regard to the property of the
ward
 Agents, as to properties entrusted to them.
 Executors and Administrators, as to
properties of the estate.
186 Center for Legal Education and Research
 Public officers and employees who have been
entrusted with the administration of the
property of the State.
 Justices, judges, prosecutors, clerks of courts
and employees connected with the
administration of justice, when the property
is in litigation or levied upon an execution
before the court within whose jurisdictionthey
exercise their function including lawyers
involved in the litigation; and
 Others specially disqualified by law.
Refusal of Purchaser to Pay
If a purchaser refuses to pay the amount bid by
him for property struck off to him at a sale under
execution, the officer may AGAIN sell the
property to the highest bidder and shall not be
responsible for any loss occasioned thereby.
The court may order the refusing purchaser to
pay into the court the amount of such loss, with
costs, and may punish him for contempt if he
disobeys the order. (Rule 39, Sec. 20)
Judgment Obligee as Purchaser
When the purchaser is the judgment obligee, he
need not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he
shall pay only the excess except when third-party
claim has been filed. (Rule 39, Sec. 21)
Certificate of Sale
 If the Certificate of Sale is not registered, the
period of redemption does not run, except
where the parties agreed on the date of
redemption. In such a case, the statutory
period for legal redemption is converted into
one of conventional redemption and the
period is binding on them.
 The Certificate of Sale of real property is
merely a memorial title of the fact of sale and
does not confer any right to the possession,
much less the ownership, of the real property
purchased.
 Certificate of Sale in case of personal
property is optional.
 It is the Deed of Sale executed by the Sheriff
at the expiration of the period of redemption

which constitutes effective conveyance of the
property sold.
 If the lien of the creditor is prior to the
judgment under which the property was sold,
he is not a redemptioner.
 The right of redemption is transferable and
may be sold voluntarily, but said right cannot
be levied upon by the judgment creditor.
3.S. 6. Rules on Redemption
 Q. What is Redemption?
Purple Notes
Remedial Law
sale, the purchaser is entitled to a conveyance
and possession of the property; or if so
redeemed whenever 60 days have elapsed and
no other redemption has been made, and notice
thereof given, the last redemptioner is entitled to
the conveyance and possession of the property.
Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be
substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the
property as of the time of the levy(Rule 39,Sec. 33)

A. Redemption is inconsistent with the claim Judgment Obligor vs. Redemptioner

of invalidity of the sale. Redemption is an
JUDGMENT REDEMPTIONER
implied admission of the regularity of the
OBLIGOR
sale and would estop the respondents from One against whom the One who has a lien by by
later impugning its validity on that ground. judgment is executed virtue of an attachment
Thus, the private respondents‘ pleas for or his successor in judgment, judgment, or
extensions of time to redeem the subject Interest(Rule 39, Sec. mortgage on the property
property are of the same genre(Perez vs. CA, 27). sold, SUBSEQUENT to the
G.R. No. 157616. July 22, 2005). lien under which the
property was sold(Riano,
Right of Redemption: If the property sold is Civil Procedure Volume I,
2016, pg. no. 643)
real property.
May redeem within 1 May redeem:
year from the date of Within 1 year from the
Who May Redeem registration of the date of registration of the
certificate of sale(Rule certificate of sale if he is
Only the following may redeem: 39, Sec. 28) the first redemptioner, or

1) Judgment obligor or his successor-in-Interest Within 60 days from the

within 1 year from the date of registration of last redemption, if he be a
the Certificate of Sale; or, subsequent redemptioner,
provided that the
2) Redemptioner, within 1 year from the date of
judgment debtor has not
registration of the Certificate of Sale or within exercised his right of
60 days from the last redemption by another redemption.(Rule 39, Sec.
redemptioner.(Rule 39, Sec. 27) 28)
Once he redeems, no Further redemption is
Redemptioner – a creditor with a lien further redemption is allowed, even after lapse
subsequent to the lien under which the allowed. of 1 year, as long as each
property was sold. redemption is made
within 60 days after the
last foreclosure.
Note:The purchaser is not entitled to the rents,
fruits or income of the property pending the
Note:The period within which to redeem the
redemption and shall belong to the judgment
property sold is not suspended by the institution
debtor until the expiration of his period of
of an action to annul the foreclosure sale (Landrito
redemption (Rule 39, Sec. 32).
vs. Court of Appeals, G.R. No. 133079, August 9,
2005).
Effect if no redemption is made
If no redemption is made within one year from
the date of the registration of the certificate of

Bar Operations C ommissions 187

 Purple Notes
Remedial Law
Rights of the Judgment Obligor
 Remain in possession of the property (cannot
be ejected)(Rule 39, Sec. 31).
 Collect rent and profits(Rule 39, Sec. 32).
 Make necessary repairs(Rule 39, Sec. 31).
 Use in the ordinary course of husbandry(Rule
39, Sec. 31).
 Use it in the same manner in which it was
previously used (Rule 39, Sec. 31).
Offer to Redeem
 Redemption cannot be effected by an offer to
redeem.
 The offer to redeem must be accompanied
with a bona fide tender or delivery of the
redemption price.
 A formal offer with tender is not necessary
where the right to redeem is exercised
through the filing of a complaint to redeem in
courts within the period to redeem(Gregorio
vs. De Culig, G.R. no. 180559. January 20, 2016).
Proof of Redemption
1. If redemption is by redemptioner, proof is
necessary and he must show to the person or
officer whom he seeks to redeem;
2. The redemptioner must show:
a) A certified copy of the judgment or final
order if he redeems upon a final order or
judgment;
b) A certified memorandum of the records
thereof if he redeems upon a mortgage
or other lien; or
c) An original or certified copy of the
assignment if he redeems upon
assignment.
3. In all cases, he must present an affidavit
executed by him or his agent showing the
amount due on the lien(Rule 39, Sec. 30).
Notes:
 There is no need of proof if redemption is by
judgment debtor.
 Failure of redemptioner to show proof is a
ground for refusal to allow redemption.
188 Center for Legal Education and Research
Deed of conveyance
 The Deed of Conveyance transfers to the
purchaser whatever rights the judgment
debtor had in the property.
 The purchaser is entitled to a conveyance
and possession of the property if there is no
redemption.
 The purchaser is substituted to and acquires
all the rights, title, interest and claims of the
judgment obligor to the property at the time
of levy.
 The purchaser acquires no better right than
what the judgment debtor has in the
property levied upon(Rule 39, Sec. 33).
Note:If the judgment debtor or his successor-in-
interest are in possession of the property levied
upon, the court has jurisdiction to issue writ of
possession to the purchasers but not when third
persons are involved.In such a case, the
procedure is for the court to order a hearing; and
for the court to determine the nature of such
adverse possession.
Recovery of Purchase prince if sale not
effective
The purchaser can recover the purchase price
from the judgment obligor in the following
situations:
a) When the purchaser or his successor in
interest fails to recover possession of
property; or
b) If the purchaser is evicted due to:
 Irregularities in the proceedings
concerning the sale;
 Reversal or setting aside of judgment;
 Fact that the property was exempted
from execution; and
 Third person has vindicated his claim to
the property(Rule 39, Sec. 34).
Successive Redemption
 Property redeemed may again be redeemed
within 60 days after redemption, with 2%
added thereon, plus assessments/taxes paid
by last redemptioner.
 Written notice of redemption must be given
to the officer who has made the sale, the

duplicate filed with the Registry of Deeds of
the place, if redemptioner paid any
assessments/taxes.
 Notice shall also be made in like manner to
the officer and filed with the Registry. If
there is no notice of said taxes, property may
be redeemed without paying such taxes(Rule
39, Sec. 28).
Remedies of judgmentcreditor in aid of
execution
Q. What may the judgment creditor do if
the execution is returned unsatisfied?
A.
1. He may he may cause examination of the
judgment debtor as to his property and
income (Sec. 37).
2. He may cause examination of the debtor of
the judgment debtor as to any debt owned
by him or to any property of the judgment
debtor in his possession and if after
examination, the court finds that there is
property of the judgment debtor either in his
own hands or that of any person, the court
may order the property applied to the
satisfaction of judgment (Sec. 38).
Q. May the court order a judgment debtor
to pay in installment?
A. Yes. If the court finds the earnings of the
judgment debtor are more than sufficient for his
family‘s needs, it may order payment in
installments (Sec. 40).
Q. May the court appoint a receiver for
properties that may be subject to
execution?
A. Yes. The court may appoint a receiver for the
property of the judgment debtor not exempt
from execution or forbid a transfer or disposition
or interference with such property (Sec. 41). If the
court finds that the judgment debtor has an
ascertainable interest in real property either as a
mortgagor, mortgagee, or otherwise, and his
interest can be ascertained without controversy,
the court may order the receiver to sell such
interest (Sec. 42).
Purple Notes
Remedial Law
Q. What remedy is available to a judgment
creditor when the persons indebted to the
judgment debtor deny their debt or claim
an adverse interest over the judgment
debtor’s properties?
A. The court may authorize the judgment creditor
to institute an action to recover the property,
forbid its transfer and may punish disobedience
for contempt (Sec. 43).
Claims against surety
A case may be filed against the surety provided
the principal is informed about it.
3.S.7. Examination of judgment obligor
when judgment is unsatisfied
When the return of a writ of execution issued
against 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.
Such order shall require the 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(Rule 39, Sec. 36).
Note: No judgment obligor shall be so required
to appear before a court or commissioner outside
the province or city in which such obligor resides
or is found(Riano, Civil Procedure Vol. I, 2016 Ed., p.
644).
3.S.8. Examination of obligor of judgment
obligor
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 person,
corporation, or other juridical entity has property
Bar Operations C ommissions 189
 Purple Notes
Remedial Law
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.
The service of the order shall bind all credits due
the judgment obligor and all money and property
of the judgment obligor in the possession or in
control of such person, corporation, or juridical
entity from the time of service; and the court
may also require notice of such proceedings to be
given to any party to the action in such manner
as it may deem proper(Rule 39, Sec. 37).
3.S.9. Effect of Judgments or Final Orders
1. In case of a judgment or final order against a
specific thing, the same is conclusive upon
the title to the thing;
2. In case of a judgment or final order in
respect to the probate of a will, or the
administration of the estate of a deceased
person, the same is conclusive upon them,
however, the probate of a will or granting of
letters of administration shall only be prima
facie evidence of the death of the testator or
intestate;
3. In case of a judgment or final order in
respect to the personal, political, or legal
condition or status of a particular person or
his relationship to another, the same is
conclusive upon the condition, status or
relationship of the person;
4. In other cases,the judgment or final order
with respect to the matter directly adjudged
or as to any other matter that could have
been missed in relation thereto is conclusive
between the parties and their successors in
interest, by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same
capacity; and
5. In any other litigation between the same
parties or their successors in interest, that
only is deemed to have been adjudged in a
former judgment or final order which appears
upon its face to have been so adjudged, or
190 Center for Legal Education and Research
which was actually and necessarily included
therein or necessary thereto(Rule 39, Sec. 47).
Rule on Res Judicata in Judgment in
rem(Rule 39,Sec. 47[a])
In res judicata, the parties and the causes of
action in both suits are identical or substantially
the same. The judgment in the first action is
conclusive as to every matter offered and
received therein and as to any other matter
admissible therein and which might have been
offered for that purpose. Hence, it is an absolute
bar to subsequent action for the same cause.
Rule on Res Judicata in Judgments in
personam(Rule 39,Sec. 47 [b])
Requisites of Res Judicata: (FMJI)
1. The former judgment or order must be Final.
2. It must be a judgment or order on the
Merits, that is, it was rendered after a
consideration of evidence or stipulations
submitted by the parties at the trial of the
case.
3. It must have been rendered by a court
having Jurisdiction over the subject matter
and the parties; and,
4. There must be between the first and second
actions, Identity of parties, of subject matter
and of cause of action. This requisite is
satisfied if two actions are substantially
between the same parties (Perez vs. CA, G.R.
No. 157616. July 22, 2005).
Note:A judgment or order is on the merits of the
case when it determines the rights and liabilities
of the parties based on the ultimate facts as
disclosed by the pleadings or issues presented for
trial. It is not necessary that a trial, actual
hearing or argument on the facts of the case
ensued. For as long as the parties had the full
legal opportunity to be heard on their respective
claims and contentions, the judgment or order is
on the merits. An order of the trial court on the
ground that the complaint does not state a cause
of action is a determination of the case on its
merits. Such order whether right or wrong bars
another action based upon the same cause of
action. The operation of the order as res judicata
is not affected by a mere right of appeal where

the appeal has not been taken or by an appeal
which never has been perfected. (Perez vs. CA,
G.R. No. 157616. July 22, 2005)
 Q. Is absolute identity of parties required for
Res Judicata to apply?
A.Absolute identity of parties is not a
condition sine qua non for the application of
res judicata. It is sufficient that there is a
shared identity of interest. Even if new
parties are found in the second action, res
judicata still applies if the party against
whom the judgment is offered in evidence
was a party in the first action; otherwise, a
case can always be renewed by the mere
expedience of joining new parties in the new
suit.
 Q. What is the ultimate test to ascertain the
identity of causes of action?
A. The ultimate test to ascertain identity of
causes of action is whether or not the same
evidence fully supports and establishes both
the first and second cases. The application of
the doctrine of res judicata cannot be
excused by merely varying the form of the
action or engaging a different method of
presenting the issue.
Rule of Auter Action Pendent (Rule 39,Sec.
47[c])
Also known as Conclusiveness of Judgment, it
has the effect of preclusion only as to issues.
 Q. What is Conclusiveness of Judgment?
A.The concept of conclusiveness of judgment
under the principle of res judicata means that
where between the first case where in
judgment is involved, there is identity of
parties, but there is no identity of cause of
action, the judgment is conclusive in the
second case, only as to those matters merely
involved therein (DOLE Philippines, Inc. vs.
Esteva, et.al., G.R. 161115, November 30, 2006).
Purple Notes
Remedial Law
Collateral Estoppel or Estoppel by Verdict
It applies where, between the first case wherein
judgment is rendered and the second case
wherein such judgment is involved, there is no
identity of causes of action. It has been held
that in order that a judgment in one action can
be conclusive as to a particular matter in another
action between the same parties or their privies,
it is essential that the issues be identical. If a
particular point or question is in issue in the
second action, and the judgment will depend on
the determination of that particular point or
question, a former judgment between the same
parties will be final and conclusive in the second
if that same point or question was in issue and
adjudicated in the first suit; but the adjudication
of an issue in the first case is not conclusive of an
entirely different and distinct issue arising in the
second. In order that this rule may be applied, it
must clearly and positively appear, either from
the record itself or by the aid of competent
extrinsic evidence that the precise point or
question in issue in the second suit was involved
and decided in the first. And in determining
whether a given question was an issue in the
prior action, it is proper to look behind the
judgment to ascertain whether the evidence
necessary to sustain a judgment in the second
action would have authorized a judgment for the
same party in the first action(Perez vs. CA, G.R. no.
157616. July 22, 2005).
Note: Void judgment cannot be invoked as res
judicata but avoidable one can.
CONCLUSIVENESS OF
RES JUDICATA
JUDGMENT
There is identity of Only identity of parties and
parties, subject subject matter.
matter and cause of
action.
The first judgment is The first judgment is
an ABSOLUTE BAR to conclusive only as to
all matters directly matters directly adjudged
adjudges and those and actually litigated in the
that might have been first action, the second
adjudged. action can be
prosecuted(Samson vs.
Spouses Gabor, G.R. no.
182970. July 23, 2014).
Bar Operations C ommissions 191
 Purple Notes
Remedial Law
3.S.10. Enforcement and effect of foreign The Rule on Declaration of Absolute Nullity of
judgments or final orders Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC)does not apply in
Provided that the foreign tribunal had a petition to recognize a foreign judgment
jurisdiction: relating to the status of a marriage where one of
the parties is a citizen of a foreign country.
 In case of judgment against a specific thing,
the judgment is conclusive upon the title of For Philippine courts to recognize a foreign
the thing; and judgment relating to the status of a marriage
 In case of a judgment against person, the where one of the parties is a citizen of a foreign
judgment is presumptive evidence of a right country, the petitioner only needs to prove the
as between the parties and their successors- foreign judgment as a fact under the Rules of
in-interest by a subsequent title. Court. x xx However, the effect of a foreign
judgment is not automatic. To extend the effect
In both instances, the judgment may be repelled of a foreign judgment in the Philippines,
by evidence of: (JN-CFC) Philippine courts must determine if the foreign
judgment is consistent with domestic public
a) Want of Jurisdiction; policy and other mandatory laws. A petition to
b) Want of Notice to the party recognize a foreign judgment declaring a
c) Collusion; marriage void does not require relitigation under
d) Fraud; or a Philippine court of the case as if it were a new
e) Clear mistake of law or fact (Rule 39, Sec. petition for declaration of nullity of marriage.
47). Philippine courts cannot presume to know the
foreign laws under which the foreign judgment
Note:A foreign judgment on the mere strength was rendered. They cannot substitute their
of its promulgation is not yet conclusive, as it can judgment on the status, condition and legal
be annulled on the grounds of want of capacity of the foreign citizen who is under the
jurisdiction, want of notice to the party, collusion, jurisdiction of another state. Thus, Philippine
fraud, or clear mistake of law or fact. It is courts can only recognize the foreign judgment
likewise recognized in Philippine jurisprudence as a fact according to the rules of evidence.
and international law that a foreign judgment
may be barred from recognition if it runs counter Section 48(b), Rule 39 states that a foreign
to public policy (Republic vs. Gingoyon, GR 166429, judgment or final order against a person creates
June 27, 2006). a "presumptive evidence of a right as between
the parties and their successors in interest by a
Philippine Rule on Recognition and subsequent title." Moreover, Section 48 of the
Enforcement of Foreign Judgment Rules of Court states that "the judgment or final
order may be repelled by evidence of a want of
1) It is based on comity jurisdiction, want of notice to the party, collusion,
2) As vested right fraud, or clear mistake of law or fact."
3) As an obligation. The judgment of a court of
competent jurisdiction over the defendant Courts are not allowed to delve into the
imposes a duty or obligation on him to pay merits of a foreign judgment
the same for which judgment is given, which
the courts in the country are bound to The Regional Trial Court can recognize the
enforce. foreign judgment in a proceeding for cancellation
4) On the doctrine of res judicata(SCRA or correction of entries in the Civil Registry under
Annotation on Enforcement and Recognition of Rule 108 of the Rules of Court, since the
Foreign Judgments by Jorge R. Caquia) recognition of a foreign judgment only requires
proof of fact of the judgment.
The case of Fujiki vs. Marinay(G.R. No. 196049,
une 26, 2013)

192 Center for Legal Education and Research

 Purple Notes
Remedial Law
4. PROVISIONAL REMEDIES Kinds of Provisional Remedies Under the
Rules of Court (ARIRS)
4.A. NATURE AND PURPOSE
PROVISIONAL
WHEN AVAILABLE
Nature of Provisional Remedies REMEDIES
Preliminary at the commencement of
TEMPORARY, AUXILIARY, and ANCILLARY Attachment action or at any time but
remedies available to a litigant for the protection (Rule 57) before entry of final judgment
and preservation of his rights while the main
action is pending, for the purposes of the Preliminary at any stage of the action or
ultimate effects of a final judgment in the case Injunction proceeding prior to the
(Regalado, F., Remedial Law Compendium, Vol. 8th (Rule 58) judgment or final order
Ed., pg. 616).
Such remedies are dependent for their
at any stage of the action or
application upon the existence of a principal Receivership
proceeding and even after
action. The dismissal of a principal action or its (Rule 59)
final judgment therein.
resolution will render the provisional remedies
therein ineffective(Riano, Civil Procedure, Vol. II,
2016 Ed., p.1). at the commencement of the
Replevin
action or at any time before
(Rule 60)
 Q. Explain the nature of provisional answer.
remedies. at any stage of the action and
Support even for the first time on
A.Provisional because it constitutes a Pendente Lite appeal BUT before the final
temporary measure availed of during the (Rule 61) judgment in said case on
pendency of the action and it is ancillary appeal.
because it is a mere incident in and is
dependent upon the result of the main ***The above enumeration does not represent
action(Buyco vs. Baraquia, G.R.No. 177486, Dec. an exclusive list of provisional remedies (Riano,
21, 2009). Civil Procedure, Vol. II, 2016 Ed.,p.8).

 Q. Are provisional remedies considered as
civil actions?
A.No, Provisional remedies are merely
adjunct to a main suit (Estares vs. CA, G.R. No.
144755, June 8, 2005).
Purpose of Provisional Remedies
Provisional remedies are resorted to by litigants
for any or a combinaton of the following
reasons:(RJSS)
 To preserve or protect their Rights or
interests while the main action is pending
 To secure the Judgment
 To preserve the Status quo
 To preserve the Subject matter of the
action(Riano, Civil Procedure, Vol. II, 2016 Ed.,
p.2).
 Q.When can the court allow a provisional
remedy of deposit in the exercise of its equity
jurisdiction?
A. In a situation where there is
―silence,obscurityor insufficiency of the laws‖
calls for the application of equity jurisdiction,
which ―fills the open spaces in the law‖. So
that while conceding that deposit is not
among the provisional remedies in the Rules
of Courtif not granted would result in unjust
enrichment. The purpose of the exercise of
equity jurisdiction in this case is to prevent
unjust enrichment and to ensure restitution.
Equity jurisdiction aims to do complete justice
in cases where a court of law is unable to
adapt its judgments to the special
circumstances of a case because of
inflexibility of iots statutory or legal
jurisdiction(Reyes vs. Lim, G.R. No. 134241,
August 11, 2003).

Bar Operations C ommissions 193

 Purple Notes
Remedial Law
Provisional Remedies in Criminal Cases
Provisional Remedies may also be availed of in
criminal actions pursuant to Rule 127 of the Rules
of Court because of the civil liability which, as a
rule, attaches to the crime (Riano, Civil Procedure,
Vol. II, 2016 Ed., p.9).
4.B. JURISDICTION OVER PROVISIONAL
REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction over
the main action. Thus, where the main case is
pending is the same court which may grant the
provisional remedy. A court cannot grant a
provisional remedy where it has no jurisdiction
over the principal action (Riano, Civil Procedure, Vol.
II, 2016 Ed., p.5).
As long as the main action is within their
jurisdiction, all inferior courts can grant all
appropriate provisional remedies (Sec. 33[1],
BP129).
4.C. PRELIMINARY ATTACHMENT (Rule 57)
Nature of Preliminary Attachment
Preliminary attachment is purely a statutory
remedy. Its legal basis for application are the
Rules of Court and the Civil Code.
Attachment is in the nature of a proceeding quasi
in rem although sometimes referred to as an
action in rem (Valdevieso vs. Damalerio, G.R. no.
133303, February 17, 2005).
The grant of preliminary attachment is
discretionary upon the court.
 Q.What is a preliminary attachment?
A. Attachment is a provisional remedy by
which the property of an adverse party is
taken into legal custody, either at the
commencement of an action or at any time
thereafter, as a security for the satisfaction of
any judgment that may be recovered by the
plaintiff or any proper party (Northern Islands
Company vs. Spouses Garcia, G.R. no. 203240,
March 18, 2015).As to its nature, attachment is
194 Center for Legal Education and Research
a proceeding quasi in rem although
sometimes it is referred to as an action in
rem. The grant of preliminary attachment is
discretionary (Riano, Civil Procedure, Vol. II,
2016 ed., pg. 12 -13).
 Q. Can preliminary attachment be a subject
of a separate independent principal action?
A.No, because the attachment is only an
incident of such action (Northern Islands
Company vs. Spouses Garcia, G.R. no. 203240,
March 18, 2015).
 Q. How is preliminary attachment construed?
A. Since attachment is harsh, extraordinary,
and summary in nature, the rules on the
application of a writ of attachment must be
strictly construed in favor of the
defendant(Watercraft Venture Corporation vs.
Wolfe, G.R. no. 181721, September 9, 2015).
Who may avail (Rule 57, Sec. 1):
1) Plaintiff; or,
2) any proper party, e.g. defendant who files
counterclaim
When Available(Rule 57, Sec. 1):
1) At the commencement of the action.
Here, the application is made even before
summons is issued by the court or before
summons is served on the defendant.
The application may be incorporated in a
verified complaint alleging all the grounds
relied upon and complying with all the
requisites for the grant of application.
If granted, it will result in an ex parte issuance
of the writ of preliminary attachment (Riano,
Civil Procedure, Vol. II, 2016 Ed., pg.15)
2) At any time before entry (finality) of the
judgment.
Since at this stage, the defendant has already
been summoned to the action, the application
for the issuance of an order of attachment
would entail notice to the defendant.
Q.When is an attachment considered
preliminary?

A.No. The attachment is preliminary only
when resorted to before the finality of the
judgment. Once the judgment has become
final and executory, the attachment becomes
a final one and is issued in order to satisfy the
judgment (Riano, Civil Procedure, Vol. II, 2016
Ed., p.11).
What are the Purposes of Preliminary
attachment:
 To seize the property of the debtor in
advance of final judgment and to hold it for
purposes of satisfying said judgment.
 To enable the court to acquire jurisdiction
over the action by actual or constructive
seizure of the property in those instances
where personal or substituted service of
summons on the defendant cannot be
effected, as in par. (f) of Sec. 1(PCIB vs.
Alejandro, G.R. no. 175587, Sept. 21, 2007).
Kinds of Attachments
There are certain types of attachments:
1. Preliminary Attachment – one issued at
the commencement of the action or at
anytime before the entry of the judgment as
security for the satisfaction of any judgment
that may be recovered.
2. Garnishment – the attaching party seeks to
subject to his claim either the property of the
adverse party, in the hands of a third person
called the garnishee, or the money which
said third person owes the adverse party.
3. Levy upon execution – the process
employed after the judgment has become
executory by which the property of the
judgment obligor is set aside and taken into
the costudy of the court before the sale of the
property on execution for the satisfaction of a
final judgment (Riano, Civil Procedure, Vol. II,
2016 Ed., p. 16-18).
4.C.1. Grounds for Issuance of Writ of
Attachment (D FRENDS)
1. Fraud- In an action against a party who has
been guilty of fraud in the incurrence or the
performance of an obligation[Rule 57, Sec. 1
(d)].
Purple Notes
Remedial Law
2. Recover Possession- In an action to recover
possession of property unjustly taken and
which has been concealed or disposed of to
prevent its being founds or taken by the
applicant [Rule 57, Sec. 1 (c)].
3. Disposed of Property- In an action against a
party who has dispoed of his property, or is
about to do so, with intent to defraud
creditors[Rule 57, Sec. 1 (e)].
4. Embezzlement- In an action for embezzlement
against a person acting in a fiduciary capacity
or willful violation of duty[Rule 57, Sec. 1 (b)].
5. Non-Resident- In an action against non-
resident party not found in the Philippines[Rule
57, Sec. 1 (f)].
Note:in order to acquire jurisdiction in actions
in personam where defendant resides out of
and is not found in the Philippines, it becomes
a matter of course for the court to convert the
action into a proceeding in rem or quasi in
rem by attaching the defendant‘s
property(PCIB vs. Alejandro, G.R. No. 175587
September 21, 2007).
6. Depart- In an action for sum of money or
damages (other than moral or exemplary)
against a party who is about to depart from
the Philippines with intent to defraud
creditors.(Note: If already departed from the
Philippines, then a non-resident, as in NO. 5)
[Rule 57, Sec. 1 (a)].
7. Summons by Publication- In an action against
a party on whom summons may be served by
publication (Sec. 1, Rule 57).These are the
defendant whose identity or whereabouts
unknown (Sec. 14, Rule 14)and the defendant
temporarily out of the Philippines (Sec. 16, Rule
14)[Rule 57, Sec. 1 (f)](Riguera, Primer-Reviewer
on Remedial Law, Civil Procedure, Vol. I, 2015 Ed).
Note:The grounds for attachment is exclusive
(Chamorro vs. Ready-Mix Co., G.R. no.. L-6572, May
14, 1954).
4.C.2. Requisites
An order of attachment shall be granted only
upon the filing of the requisite affidavit and bond.
The affidavitneed not be executed by the
applicant. It may be executed by some other
Bar Operations C ommissions 195
 Purple Notes
Remedial Law
person who personally knows the facts (Rule 57,
Sec. 3).
The bond (attachment bond) shall be in the
amount fixed by the court and executed to the
adverse party (Rule 57, Sec. 4).
4.C.3. Issuance and contents of order of
attachment; affidavit and bond
Issuance of the Order of Attachment
1. May be issued either ex parte or upon
motion with notice and hearing;
2. By the court in which the action is pending,
or by the Court of Appeals or the Supreme
Court.
Several writs may be issued at the same time to
the sheriffs of the courts of different judicial
regions(Rule 57, Sec. 2).
Note: No hearing is required on an application
for preliminary attachment, with notice to the
defendant, for the reason that this "would defeat
the objective of the remedy . . . (since the) time
which such a hearing would take, could be
enough to enable the defendant to abscond or
dispose of his property before a writ of
attachment issues."(Davao Light & Power, Co., Inc.
vs. CA, G.R. No. 93262 December 29, 1991).
Contents of an Order of Attachment
The Order must require the sheriff of the court
to attach so much of the property in the
Philippines of the party against whom it is
issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand,
unless such party makes deposit or gives a
bond as hereinafter provided in the amount
equal to that fixed in the order, which may be
the amount sufficient to satisfy the applicant's
demand or the value of the property to be
attached as stated by the applicant, exclusive of
costs (Rule 57, Sec. 2).
Note: An order of attachment shall be granted
only upon the filing of an affidavit and a
bond(Rule 57, Sec. 2).
196 Center for Legal Education and Research
Contents of the Affidavit (CONA)
1. That a sufficient Cause of action exists;
2. That the case is One of those mentioned in
Section 1, Rule 57;
3. That there is No sufficient security for the
claim sought to be enforced by the action;
and
4. That the Amount due to the applicant, or the
value of the property the possession of
which he is entitled to recover, is as much as
the sum for which the order is granted
above all legal counterclaims (Rule 57, Sec. 3).
 Note: the affidavit must be executed by the
applicant or by some other person who
personally knows the facts (Ibid).
 Q. May an order of preliminary attachment
be issued if there exist a real estate
mortgage?
A.No.The order of preliminary attachment will
not be issued if a real estate mortgage exists
to secure the obligation, even if an action for
a sum of money was filed instead of an action
for foreclosure (Salgado vs. CA, G.R. no. L-55381,
March 26, 1984).
 Q. May a writ of preliminary attachment be
issued when there is failure to allege the
prescribed requisites?
A. No.Failure to allege the requisites
prescribed for the issuance of a writ of
preliminary attachment renders the writ
fatally defective, and the judge issuing it is
deemed to have acted in excess of his
jurisdiction (K.O. Glass Construction Co., Inc. vs.
Valenzuela, G.R. no. L-48756, September 11,
1982).
Condition of Applicant's Bond
The bond executed in favor of the adverse party
is conditioned upon:
a) the payment, by the party applying for an
order of attachment, of all costs which the
adverse party may be adjudged as entitled
to; and,
b) all damages which the adverse party may
sustain by reason of the attachment, if it

shall be finally adjudged that the party
applying for the attachment was not entitled
thereto (Rule 57, Sec. 4).
 Q. When can a defendant claim from the
attachment bond?
A. The defendant can only claim from the
bond for all the damages which he may
sustain by reason of the attachment and not
because of the sale of the attached
properties prior to final judgment (CBC vs.
Asian Construction and Development Corporation,
G.R. No. 158271, April 8, 2008).
Stages in the Grant of a Writ of Preliminary
Attachment
1. The court issues the order granting the
application;
2. The writ of attachment issues pursuant to the
order granting the writ; and,
3. The writ is implemented(Riano, Civil Procedure,
Vol II, 2016 Ed, p.33).
 Q. When is jurisdiction over the person of
the defendant necessary?
A. Jurisdiction over the person of the
defendant is only required in the third stage
(i.e. once the implementation of the writ
commences). Without such jurisdiction, the
court has no power and authority to act in
any manner against the property of the
defendant (Mangila vs. CA, G.R. no. 125027,
August 12, 2002).
4.C.4. Rule on Prior or Contemporaneous
Service of Summons
General Rule: The sheriff is NOT allowed to
make a levy on attachment if such levy is not
preceded or contemporaneously accompanied by
the service on the defendant within the
Philippines of the following:
1) Summons;
2) Copy of the complaint;
3) Application for attachment;
4) Applicant's affidavit and bond; and,
5) Order and writ of attachment (Rule 57, Sec.
5).
Purple Notes
Remedial Law
Note: The service mentioned above is necessary
to acquire jurisdiction over the person of the
defendant.
Exceptions: Prior or Contemporaneous Service
shall NOT apply when:(PeSTa-NR)
1) summons could not be served Personally
despite diligent efforts;
2) Summons could not be served by
substituted service despite diligent efforts;
3) defendant is a resident of the Philippines
Temporarily absent therefrom;
4) defendant is a Non-resident of the
Philippines; or,
5) action is one in Rem or quasi in rem (Rule
57, Sec. 5).
Reason for the Exceptions: Without these
exceptions, the party against whom the writ is
directed would be able to frustrate the ends of
justice by the simple expedient of disappearing
and intentionally putting himself beyond the
reach of court processes. Note that most of these
exceptions are instances where service of
summons by publication may be justified (Riano,
Civil Procedure, Vol. II, 2016 ed., pg. 34-35).
No Retroactivity of Belated Service of
Summons
 Q. What is the effect of subsequent service
of summons when an attachment is issued
before the court has acquired jurisdiction
over the person of the defendant?
A. Belated service of summons cannot be
deemed to have cured the fatal defect in the
enforcement of the writ. The subsequent
service of summons does not confer a
retroactive acquisition of jurisdiction over her
person because the law does not allow for
retroactivity of a belated service (Torres v.
SatsatinG.R.no. 166759, November 25, 2009).
4.C.5. Manner of Attaching Real and
Personal Property; When Property Attached
is Claimed by Third Person
Manner of Attachment of Real and Personal
Property under Rule 57
Bar Operations C ommissions 197
 Purple Notes
Remedial Law
PROPERTY MANNER OF ATTACHMENT commissions,
Real property, or a) By filing with the Registry of and other a) copy of the writ; and,
growing crops Deeds the following: personal b) notice that the following are
thereon, or any property not attached in pursuance of
interest therein 1. copy of the order of capable of such writ:
(Sec. 7, par. a) attachment; manual delivery  debts owing by him to
2. description of the property (par. d) the party against whom
attached; and, attachment is issued;
3. notice that the property GARNISHMENT  credits and other
subject of the writ is personal property in his
attached. possession or under his
control, belonging to
b) Then, by leaving a copy of said party
such order, description, and
notice with the occupant of Effect: The person having
the property, if any, or with possession or control of the
such other person or his debts, credits, and similar
agent if found within the personal property belonging to
province. the person against whom the
attachment is issued shall be
Where the property has been liable to the applicant for the
brought under the operation of amount of the property, debts, or
either the Land Registration Act credits.
or the Property Registration
Decree, the notice shall contain a This liability continues until the
reference to the: attachment is discharged or until
the judgment recovered by the
a) number of the certificate of applicant is satisfied.
title;
b) volume and page in the This liability or responsibility shall
registration book where the cease if the property subject of
certificate is registered; and, the writ is delivered or
c) registered owner or owners transferred, or the debts or
thereof. credits are paid to the clerk,
sheriff or other proper officer of
Personal By taking and safely keeping it the court issuing the attachment
Property capable under custody, after issuing a (Rule 57, Sec. 8).
of manual corresponding receipt.
delivery (Sec. 7, Examination: Any person owing
par. b) debts to the party whose property
Stocks or By leaving with the president or is attached or having in his
shares, or an managing agent thereof, the possession or under his control
interest therein, following: any credit or other personal
of any a) copy of the writ; and, property belonging to such party,
corporation or b) notice stating that the stock may be required to attend before
company (Sec. or interest of the party the court in which the action is
7, par. c) against whom the pending, or before a
attachment is issued is commissioner appointed by the
attached in pursuance of court, and be examined on oath
such writ respecting the same(Rule 57,
Sec. 9).
Debts and By leaving with the person
credits, including (garnishee) owing such debts or Interest in By serving the executor,
bank deposits, having in his possession or property administrator or other personal
financial control, such credits or other belonging to the representative of the decedent
interest, personal property, or with his estate of the the following:
royalties, agent, the following: decedent (Sec.

198 Center for Legal Education and Research


7, par. e) a) copy of the writ; and,
b) notice that said interest is
attached
A copy of the writ of attachment
and notice shall also be filed in
the office of the clerk of court in
which said estate is being settled.
The same shall likewise be served
upon the heir, legatee or devisee
concerned.
Effect: It does not have the
effect of impairing the powers of
administration of the executor,
administrator or personal
representative of the decedent.
The representative, however, is
obligated to report the
attachment to the court when a
petition for distribution is filed.
The property attached shall be
delivered to the sheriff making
the levy, subject to the claim of
the heir, legatee or devisee, or
any person claiming under him
(Rule 57, Sec. 9).
Property in By filing a copy of the writ of
custodia legis attachment with the proper court
(Sec. 7, last or quasi-judicial agency, and
paragraph) serving a notice of the
attachment upon the custodian of
said property.
Priority in liens: The first
attachment will have priority over
subsequent attachments.
The attachment of property
already in custodia legis merely
operates as a lien and does not
mean that the attaching court will
wrest custody of the property
from another court. (Riano, Civil
Procedure, Vol. II, pp. 38-39,
2016 ed.)
 Q. Can one enforce a maritime lien through
a writ of preliminary attachment?
A. NO. A maritime lien exists in accordance
with the provision of the Ship Mortgage
Decree. When a maritime lien exists, this
means that the party in whose favor the lien
Purple Notes
Remedial Law
was established may ask the court to
enforce it by ordering the sale of the
subject property and using the proceeds to
settle the obligation. On the other hand, a
writ of preliminary attachment is issued
precisely to create a lien.When a lien
already exists, this is already equivalent to
an attachment(TSUNEISHI HEAVY INDUSTRIES
(CEBU), INC.,vs. MIS MARITIME CORPORATION,
G.R. No. 193572, April 04, 2018).
Duties of the Sheriff
1) To proceed with the attachment without
delay and with all reasonable diligence
UNLESS the party against whom the writ is
directed
a) makes a deposit; or,
b) gives a counter-bond (Rule 57, Sec. 5)
2) To attach only so much of the property in
the Philippines against whom the writ is
issuedto await the judgment in the case and
its execution.
3) Not to attach any property exempt from
execution (Rule 57, Sec. 5);
4) To make a return, without delay, to the
court which issued the writ;
5) After enforcing the writ, to make a return
thereon, without delay, to the court which
issued the writ, with a full statement of his
proceedings under the writ and a complete
inventory of the property attached, together
with any counter-bond given by the party
against whom attachment is issued, and
serve copies thereof on the applicant (Rule
57, Sec. 6).
Sale of Attached Property AFTER Levy on
Attachment and BEFORE Entry of Judgment
a.) When the property attached is perishable; or,
b.) When the interests of all the parties to the
action will be subserved by the sale thereof
(Rule 57, Sec. 11).
When Property Attached is Claimed by
Third Person
Bar Operations C ommissions 199
 Purple Notes
Remedial Law
Note: The third person here is NOT a party to
the action.
1. File a terceria stating the grounds of such
right or title. The affidavit must be served
upon the sheriff while he has possession of
the attached property, and the attaching
party(Rule 57, Sec. 14).
The court may order the sheriff to release
the property from the erroneous levy and to
return the same to the third person.
3. File a Separate Action to nullify the levy,
with damages resulting from the unlawful
levy and seizure (Ching vs. CA, G.R. no. 124642,
February 23, 2004).

Terceriais an affidavit of one‘s title to or right The action here is a totally distinct action
to the possession of the property attached. from the former case.

General Rule: Upon service of the affidavit
upon the sheriff, he (sheriff) shall not be
bound to keep the property under
attachment(Id).
Exception: The attaching party files an
INDEMNITY BOND approved by the court.
The sheriff shall not be liable for damages for
the taking or keeping of the property, if such
bond shall be filed(Rule 57, Sec. 14).
4. File a Motion For Intervention, provided
no judgment has yet been rendered in the
action (Rule 19, Sec. 2).
Note: the above remedies are cumulative
and any one of them may be resorted to
without availing the other remedies(Ching vs.
CA, G.R. no. 124642, February 23, 2004).
5. Claim for damages on the indemnity bond, if
filed (Rule 57, Sec. 14).

ATTACHMENT INDEMNITY BOND 4.C.6. Discharge of Attachment and the

BOND (Sec. 4) (Sec. 14) Counter-Bond
To assure: To indemnify the sheriff
a) the return of against: A writ of attachment already enforced may be
defendant‘s a) any claim by the discharged in the following ways:
personal intervenor to the
property; or, property seized; or,
1. By filing a motion to discharge the
b) the payment of b) for damages arising attachment and making a CASH DEPOSIT or
damages to the from such seizure, COUNTER-BOND inan amount equal to that
defendant which the sheriff was fixed by the court in the order or equal to the
making and for which value of the particular property attached(Rule
IF the plaintiff‘s the sheriff was directly 57, Sec. 12).
action to recover responsible to the third
possession of the party (Fort Bonifacio After due notice and hearing,the court shall
same property fails. Dev. Corp vs. direct that the attachment be discharged.
YllasLendinCorp,G.R.
No. 158997, October ATTACHMENT BOND COUNTER-BOND (Sec.
6, 2008). (Sec. 3) 12)
To assure the return of To secure the payment of
defendant‘s personal any judgment that the
2. Summary Hearing property or the attaching party may
Upon application of the third person through payment of damages recover in the action.
to the defendant if the
a motion to set aside the levy on attachment,
plaintiff‘s action to  It is also a
the court shall order a summary hearing to recover possession of replacement of the
determine whether the sheriff has acted the same property property formerly
rightly or wrongly in the performance of his fails. attached and just as
duties in the execution of the writ of the latter, may be
attachment. levied upon final
judgment (Security

200 Center for Legal Education and Research


Pacific Assurance
Corp. vs. Tria-
Infante, G.R. no.
144740, August 31,
2005).
2. By filing a motion to set aside or discharge
the attachment on other grounds WITHOUT
need for filing a counter-bond.
Note: A writ of attachment not yet enforced may
be PREVENTED by making a DEPOSIT or
COUNTER-BOND executed to the applicant in an
amount equal to the bond fixed by the court in
the order of attachment or to the value of the
property to be attached, exclusive of costs(Rule
57, Sec. 5).
Grounds for Motion to Discharge: (JI2E2)
a) That the order of attachment was Improperly
or irregularly issued or enforced (Rule 57, Sec.
13)
b) That the bond furnished by the applicant is
Insufficient (Rule 57, Sec. 3)
c) The attachment is Excessive. (The discharge
shall be limited to the excess.)
d) The property attached is Exempt from
execution, hence, exempt from preliminary
attachment (Rule 57, Sec. 2 and 5);
e) TheJudgment is rendered against the
attaching creditor (Rule 57, Sec. 19).
Note:The motion may be filed before levy, after
levy, or even after the release of the attached
property. After due notice and hearing, the court
shall order the setting aside or the corresponding
discharge of the attachment (Rule 57, Sec. 13).
Effect of Discharge
The property attached or the proceeds of any
sale thereof, shall be delivered to the party
making the deposit or giving the counterbond, or
to the person appearing on his behalf. The
deposit or counterbond shall stand in the place of
the property attached(Rule 57, Sec. 12).
Damages for a Wrongful Attachment (Rule
57, Sec. 20)
Purple Notes
Remedial Law
Merit award of actual damages when the
attachment defendantproves the fact of loss or
injury. He may recover actual damages even
without proof that the attachment plaintiff acted
in bad faith in obtaining the attachment.
 Q. May the court award moral and exemplary
damages for improper, irregular or excessive
attachment?
A. If it is alleged and established that the
attachment was not merely wrongful but also
malicious, the attachment defendant may
recover moral damages and exemplary
damages as well (Spouses Yu vs. Ngo Yet Te,
G.R. no. 155868, February 6, 2007).
 Q.When should a hearing be held for the
recovery of damages under Sec. 20? Is this
the same for the recovery of damages under
Sec. 17?
A.Under Sec. 20, a hearing should be held
before finality of judgment. This is not the
case for the recovery of damages under Sec.
17, which may be held even after finality of
judgment.
The difference lies with the kind of damages
being recovered. Under Sec. 20 in relation to
Sec. 4 of the same rule, the surety bond shall
answer for all the costs which may be
adjudged to the adverse party and all
damages which he may sustain by reason of
the attachment. In other words, the damages
sought to be enforced against the surety
bond are unliquidated. On the other hand,
Sec. 17 in relation to Sec. 12, the cash
deposit or the counter-bond shall secure the
payment of any judgment that the attaching
party may recover in the action. Stated
differently, the damages sought to be
charged against the surety bond are
liquidated(Excellent Quality Apparel, Inc. vs.
Visayan Surety & Insurance Corporation, G.R. No.
212025, July 01, 2015).
Should the bond or deposit be insufficient to fully
satisfy the award of damages, the party against
whom the attachment was issued may recover
from any property of the attaching party not
exempt from execution (Rule 57, Sec. 19).
Bar Operations C ommissions 201
 Purple Notes
Remedial Law
The judgment for damages shall be included in
the judgment on the main case. Damages may
be recovered from the attaching party or his
surety or sureties(Rule 57, Sec. 20).
Where the Judgment of the Appellate Court
is Favorable to the Party Against Whom the
Attachment was Issued(Rule 57, Section 20)
Such party must claim damages sustained during
the pendency of the appeal in the following
manner:
a) by filing an application in the appellate court;
b) with notice to the party in whose favor the
attachment was issued or his surety or
sureties;
c) before the judgment of the appellate court
becomes executor
Notes:
 Theappellate court may allow the application
to be heard and decided by the trial court.
 The merits of the action in which a writ of
preliminary attachment has been issued are
not triable on a motion for dissolution of
the attachment, otherwise an applicant for
the lifting of the writ could force a trial of the
merits of the case on a mere motion.
Moreover, we have held that when the writ
of attachment is issued upon a ground which
is at the same time the applicant's cause of
action, the only other way the writ can be
lifted or dissolved is by a counterbond, in
accordance with Section 12 of the same
rule(Chuidian vs. Sandiganbayan, G.R. No.
139941 January 19, 2001)
4.C.7. Satisfaction of Judgment out of
Property Attached
Manner of Satisfying the Judgment Out of
the Property
a) By paying the judgment creditor the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment.
b) If any balance remains due, by selling so
much of the property, real or personal, as
202 Center for Legal Education and Research
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff‘s hands, or in those of the clerk of
court.
c) By collecting from all persons having in their
possession, credits belonging to the
judgment debtor or owing debts to the latter
at the time of the attachment of such credit
and debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over
to the judgment creditor.
The sheriff shall make a return in writing to the
court of his proceedings and furnish the parties
with copies thereof (Rule 57, Sec. 15).
Balance Due Collected Upon an Execution;
Excess Delivered to Judgment Obligor
Any balance due shall be collected upon ordinary
execution; any excess shall be delivered to
judgment obligor (Rule 57, Sec. 16).
Recovery Upon the Counter-bond
Recovery may also be had on the counter-bond
by requiring the surety on the bond to pay the
judgment obligee upon demand the amount due
the judgment.
The said amount may be recovered from such
surety or sureties after notice and summary
hearing in the same action (Rule 57, Sec. 17).
Disposition of Money Deposited
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under the
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching
party.
After satisfying the judgment, the balance shall
be rendered to the depositor or his assignee. If
the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee (Rule 57, Sec. 18).
 Purple Notes
Remedial Law
Rule if Judgment is Rendered Against the Preliminary
Garnishment
Levy on
Attaching Party Attachment Execution
Issued at the It is a manner Process
1. The following shall be delivered to the party commencement of attaching employed
of the action or property AFTER the
against whom attachment was issued:
at any time pursuant to a judgment has
before entry of writ of become
a) all the proceeds of sales and money judgment as execution executory for
collected or received by the sheriff, under security for the (Rule 39, Sec. the satisfaction
the order of attachment; and, satisfaction of 9c) or a writ of of final
b) all property attached remaining in any such any judgment attachment judgment.
officer's hands that may be (Rule 57,
recovered Sec.5)
2. The order of attachment shall be discharged (Riano, Civil
Procedure Vol.
(Rule 57, Sec. 19)
II, 2016 ed.,
pp.16-17).
4.C.8. Compared with Garnishment and The court takes It does not Property of the
Levy on Execution custody of the involve actual judgment
property of the seizure of the obligor is set
Garnishment party against property which aside and
whom the remains in the taken into
The attaching party seeks to subject to his claim attachment is hands of custody of the
either the property of the adverse party, in the directed(Riano, garnishee(Rian court before
hands of a 3rd person (garnishee), or the money Civil Procedure o, Civil the sale of the
Vol. II, 2016 Procedure Vol. property on
which said 3rd person owes the adverse party.
ed., pp.16-17). II, 2016 ed., execution(Rian
p.17). o, Civil
Salaries can be attached only at the end of the Procedure Vol.
month or on the pay day provided by contract or II, 2016 ed.,
law. This is so because prior thereto, the same p.18).
do not constitute money ―due‖ to the debtor from
his employer. 4.D. PRELIMINARY INJUNCTION

 Q.What is the procedure for attaching Preliminary injunction is an order granted at any
property in custodia legis? stage of an action, prior to the judgment or final
order:
A. Rule 57, Sec. 7(e) provides that if the
property sought to be attached is in custodia 1.) requiring a party, court, agency or person to
legis, a copy of the writ of attachment shall perform; or
be filed with the proper court or quasi-judicial 2.) refrain from performing a particular act or
agency, and notice of the attachment served acts(Rule 58, Sec. 1).
upon the custodian of such property. Citing
Trader‘s Royal Bank vs. IAC, the court held:
It is an equitable remedy. By issuing a writ of
property in the custody of the law cannot be
preliminary injunction, the court can thereby
interfered with without:
prevent a threatened or continued irreparable
injury to the plaintiff before a judgment can be
a. the custody of the proper court and
rendered on the claim(Riano, Civil Procedure, Vol. II,
b. properly legally attached is property in
2016 Ed., pp.50-51).
custodia legis(BSP vs. Lanzanas, A.M. No.
RTJ-06-1999, December 8, 2010).

Bar Operations C ommissions 203

 Purple Notes
Remedial Law
Notice and Hearing mandatory injunction
(Rule 58, Sec. 1).
A writ of preliminary injunction cannot be issued No preliminary May be issued ex parte
injunction shall be (Rule 58, Sec. 5).
without a prior notice and hearing (Rule 58, Sec.
granted without
5).
hearing and prior notice
to the party or person
Purpose of Preliminary Injunction sought to be enjoined
(Rule 58, Sec. 5).
It is issued by the court to prevent threatened or A writ of preliminary A TRO has a lifetime of
continuous irreparable injury to parties before injunction remains until only 72 hours, 20 days or
their claims can be thoroughly studied and it is dissolved. 60 days depending on
adjudicated and during pendency of an action. the issuing Court (Rule
Hence, in order to protect the rights of the 3. It is merely 58, Sec. 5).
temporary, subject
parties before the main action is resolved, there
to the final
is a need to preserve status quo(Riano, Civil disposition of the
Procedure, Vol. II, 2016 ed., p. 51). principal action
(Dungog vs. CA,
Status Quo is defined as the last actual, G.R. no. 139767,
peaceful, and uncontested status that precedes August 5, 2003).
the actual controversy, that which is existing at
the time of the filing of the case(Cortez-Estrada vs. Status Quo Ante Order
Heirs of Domingo/Antonia Samut, GR No. 154407,
February 14, 2005).  Q.Whenis a status quo ante issued?

Note: A grant of preliminary injunction is not a A. There have been instances when the
judgment on the merits. Supreme Court has issued a status quo order
which, as the very term connotes, is merely
4.D.1. Definitions and Differences: intended to maintain the last, actual,
Preliminary Injunction, Temporary peaceable and uncontested state of things
Restraining Order, and Status Quo Ante which preceded the controversy. This was
Order resorted to when the projected proceedings
in the case made the conservation of
the status quo desirable or essential, but the
Define and Differ Preliminary Injunction affected party neither sought such relief or
and Temporary Restraining Order the allegations in his pleading did not
sufficiently make out a case for a temporary
PRELIMINARY TEMPORARY restraining order. The status quo order was
INJUNCTION RESTRAINING ORDER thus issued motu proprio on equitable
A preliminary injunction A TEMPORARY considerations. Also, unlike a temporary
is an order granted at RESTRAINING ORDER restraining order or a preliminary injunction,
any stage of an action (TRO) is issued if it shall a status quo order is more in the nature of a
or proceeding prior to appear from the facts cease and desist order, since it neither directs
the judgment or final shown by affidavits or by
the doing or undoing of acts as in the case of
order, requiring a party the verified application
or a court, agency or a that great or irreparable prohibitory or mandatory injunctive relief.
person to refrain from a injury would result to The further distinction is provided by the
particular act or acts. the applicant application present amendment in the sense that, unlike
for preliminary injunction the amended rule on restraining orders,
It may also require the can be heard on notice a status quo order does not require the
performance of a (Rule 58, Sec. 5). posting of a bond(Megaworld vs. Majestic, G.R.
particular act or acts, in no. 169694, December 09, 2015 citing Regalado).
which case it shall be
known as a preliminary

204 Center for Legal Education and Research

 Purple Notes
Remedial Law
Preliminary Injunction vs. Main Action for Grant is not a final Judgment should be
Injunction resolution or decision assailed by a timely
disposing the case appeal (Casilan vs.
(Recto vs. Escaler, G.R. Ibanez, G.R. nos. L-
PRELIMINARY MAIN ACTION FOR
no. 173179, October 19968-69, October 31,
INJUNCTION INJUNCTION
20, 2010). Hence, the 1962).
Not a principal action & A principal action and a order may be
can only exist as an cause of action in itself. challenged by a petition
incident to a principal It can be coupled with an for certiorari under Rule
action (Bacolod Water application for a writ of 65 (Sec. 1[b], Rule 41).
District vs. Labayen, preliminary injunction,
G.R. no. 157494, (Riano, Civil Procedure,
December 10, 2004). Vol. II, 2016 Ed., p.56). Notes:
It is not a cause of
 Examples of acts subject to the main action
action in itself but
merely an adjunct to a for injunction are those mentioned in Art. 26
main suit (Mabayo of the Civil Code.
Farms, Inc. vs. CA,G.R.
no. 140058,August 01,  A judgment in an action for injunction is
2002) immediately executory.
It does not seek a It seeks a judgment
Preliminary Prohibitory Injunction vs.
permanent embodying a final
injunction(Riano, Civil injunction(Riano, Civil Petition for Prohibition
Procedure, Vol. II, 2016 Procedure, Vol. II, 2016
Ed., p.56). Ed., p.56). PRELIMINARY
PETITION FOR
Granted after the trial of PROHIBITORY
PROHIBITION
Granted at any stage of the action if it appears INJUNCTION
an action or proceeding that the applicant is Not an independent An independent action.
prior to the judgment entitled to have the act action.
or final order (Rule 58, or acts complained of Generally directed Not directed against a
Sec. 1). permanently enjoined against a party-litigant, party-litigant but against
(Rule 58, Sec. 9). although under the a tribunal, corporation,
Its hearing is separate -- Rules, it may be board, officer or person
and distinct from the directed against a exercising judicial, quasi-
trial on the merits of court, an agency or judicial or ministerial
the main case for person (Rule 58, Sec. 1). functions (Rule 65, Sec. 2).
injunction (Juana It applies even if there It applies when the acts
Complex I Homeowners is no issue of or proceedings of any
Association, Inc. vs. Fil- jurisdiction, grave tribunal, corporation,
Estate Land, Inc., G.R. abuse of discretion, or board, officer or person
no. 152272, March 5, other similar acts which are without or in excess
2012). amount to lack of of its or his jurisdiction,
The right and the act jurisdiction. or with grave abuse of
Generally, based solely
violative thereof must be discretion amouting to
on initial and
established with absolute lack of jurisdiction.
incomplete evidence
certainty to be a basis for Hence, the basis of
(Zuneca Pharmaceutical
a final and permanent prohibition is a
v. Natrapharm, inc.,
injunction (Republic vs. jurisdictional issue (Rule
G.R. no. 197802,
Cortez, G.R. no. 197472, 65, Sec. 2).
November 11, 2015).
September 7, 2015).

Bar Operations C ommissions 205

 Purple Notes
Remedial Law
Preliminary Mandatory Injunction  Q. What is a clear and unmistakeable right?
vs.Petition for Mandamus
A. The righ sought to be protected must be a
PRELIMINARY present right, a legal right which must be
PETITION FOR
MANDATORY shown to be clear and positive. Accordingly,
MANDAMUS
INJUNCTION this means that the applicants praying for the
A provisional remedy, A special civil action and a issuance of a writ of preliminary injunction
not a main or main action. ―must show that they have an ostensible
independent action. right to the final relief pray for in their
Generally directed Directed against a complaint‖ (Juana Complex I Homeowners
against a party-litigant, tribunal, corporation, Association, Inc. vs. Fil-Estate Land, Inc., G.R. No.
although under the board, officer or person 152272, March 05, 2012).
Rules, it may be (Rule 65, Sec. 3).
directed against a
Formal Requisites:
court, an agency or
person (Rule 58, Sec. 1)
Issued to require a Seeks a judgment 1) There must be a verified application(Sec. 4[a],
party to perform an act commanding tribunal, Rule 58);
(Rule 58, Sec. 1) in order corporation, board, officer 2) The applicant must post a bond, unless
to restore the last or person to perform a exempted by the court (Sec. 4[b], Rule 58);
peaceable and duty which the law and,
uncontested status specifically enjoins as a 3) The court must conduct a hearing (Sec. 5,
preceding the duty either because there Rule 58). It cannot be issued ex parte.
controversy. was an unlawful neglect
of such duty or a person
Posting an Injunction Bond
was unlawfully excluded
from the use and
enjoyment of an office to An applicant for a preliminary injunction is
which such person is required to file a bond:
entitled (Rule 65, Sec. 3).
May be directed Directed against a) Executed in favor of the party enjoined;
against any act. ministerial acts. b) In the amount fixed by the court; and,
c) To the effect that the applicant shall pay to
Who May Grant Preliminary Injunction the party enjoined all damages which he may
sustain by reason of the preliminary injunction
Court where the action or proceeding is or the restraining order if the court should
pending(Rule 58, Sec. 2). finally decide that the applicant was not
entitled to the writ or order.
4.D.2. Requisites
The applicant may, however, be exempted by the
Essential Requisites: (TRUM) court from posting a bond (Sec. 4[b], Rule 58).

1) There exists a clear and unmistakable Right Service of Copies of Bonds

to be protected;The right must not be
doubtful or disputed.
2) This right is directly Threatened by an act
sought to be enjoined;
3) The invasion of this right is Material and
substantial; and,
4) There is an Urgent and paramount necessity
for the writ to prevent serious irreparable
damage(Spouses Dulnuan vs. MBTC, GR 196864,
July 8, 2015).
The party filing a bond in accordance with the
provisions of this Rule shall forthwith serve a
copy of such bond on the other party who may
except to the sufficiency of the bond, or of the
surety or sureties thereon (Rule 58, Sec. 7).
When Injunction Shall be Dissolved
a) If the applicant‘s bond is found to be
insufficient in amount; or,

206 Center for Legal Education and Research

 Purple Notes
Remedial Law
b) if the surety or sureties thereon fail to justify; Kinds of Temporary Restraining Order
and, (TRO) (Rule 58, Sec. 5)
c) a bond sufficient in amount with sufficient
sureties approved after justification is NOT TRO - 20 DAYS TRO - 72 HOURS
filed forthwith (Rule 58, Sec. 7). Great or irreparable The matter is of extreme
injury would result to the urgency and the applicant
When Injunction Shall be Granted or applicant before the will suffer grave injustice
matter can be heard on and irreparable injury.
Restored
notice.
Note: ―Irreparable
a) If the bond of the adverse party is found to be injury‖ – constant and
insufficient in amount; or, frequent recurrence that
b) The surety or sureties thereon fail to justify a no fair or reasonable
bond sufficient in amount with sufficient redress can be had in a
sureties approved after justification is not filed court of law.
forthwith (Rule 58, Sec. 7). The court to which the The executive judge of a
application for multiple-sala court or the
4.D.3. Kinds of Injunctions; Kinds of preliminary injunction presiding judge of a single-
was made, may issue ex sala court may issue ex
Temporary Restraining Orders
parte a TRO to be parte a TRO effective for
effective only for a only 72hoursfrom issuance.
Kinds of Injunctions period of 20 daysfrom It may be extendedfor a
service on the party or period not exceeding 20
PRELIMINARY person sought to be days including the original
FINAL INJUNCTION
INJUNCTION enjoined. 72 hours already given.
Section 1, Rule 58 Section 9, Rule 58 If issued originally to be
Granted at any stage of One issued after the trial effective for 20 days, the
an action prior to the of the action permanently TRO takes effect from
judgment or final order restraining defendant or service.
therein making the preliminary
injunction permanent. Within the said 20-day Within the
period, the court must: aforesaid72hours, the
judge before whom the
Kinds of Preliminary Injunction(Riano, Civil a) order the proper case is pending shall
Procedure, Vol. II, 2016 ed., p. 55) party orperson to conduct a summary
show cause why the hearing to determine
PROHIBITORY MANDATORY injunction should whether the TRO shall be
Requires one to Requires the not be granted; extended until the
REFRAINfrom the PERFORMANCE of a application for preliminary
b) determine whether injunction can be heard.
performance of a particular act or acts. or not the
particular act or acts. preliminary
The act has not yet The act has already been injunction shall be
been performed performed and this act granted; and,
because it is restrained has violated the rights of
or prevented by another. c) issue the order.
injunction.
Its purpose is to Its purpose is to
PREVENT a future or RESTORE the status quo
threatened injury. and then PRESERVE the Note: Sec. 4 of Rule 58 establishes the same
Hence, status quo is said status quo which has requirement for the issuance of a preliminary
preserved. been restored. injunction and a temporary restraining order
EXCEPT that the TRO may, in some cases, be
issued ex parte pursuant to Sec. 5 of Rule 58.

Bar Operations C ommissions 207

 Purple Notes
Remedial Law
4.D.4. When Writ May Be Issued, When
Writ May Not Be Issued
When writ may be Issued
A preliminary injunction is an order granted at
any stage of an action or proceeding prior to the
judgment or final order(Rule 58, Sec. 1).
When Writ may not be Issued
1. No court, except the Supreme Court, shall
issue any temporary restraining order,
preliminary injunction or preliminary
mandatory injunction against the government,
or any of its subdivisions, officials or any
person or entity, whether public or private
acting under the government direction, to
restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development
ofthe right-of-way and/or site or location
of any national government project;
2. Bidding or awarding of contract/project
of the national government as defined
under Section 2 hereof;
3. Commencement prosecution, execution,
implementation, operation of any such
contract or project;
4. Termination or rescission of any such
contract/project; and
5. The undertaking or authorization of any
other lawful activity necessary for such
contract/project.(R.A. 8975, Sec. 3)
2.The National Internal Revenue Code of 1997
(NIRC) expressly provides that no court shall
have the authority to grant an injunction to
restrain the collection of any national internal
revenue tax, fee or charge imposed by the
code
Exceptions:
a. When in the opinion of the Court of Tax
Appeals (CTA) the collection thereof may
jeopardize the interest of the government
and/or the taxpayer.
b.Local taxes, as the prohibition on the
issuance of a writ of injunction to enjoin
the collection of taxes applies only to
208 Center for Legal Education and Research
national internal revenue taxes, and not to
local taxes(Angeles City vs. Angeles City
Electric Corporation, G.R. No. 166134, June 29,
2010).
3. A restraining order or a preliminary injunction
may not be issued by any court against the
Presidential Agrarian Reform Council (PARC)
or any of its duly authorized agencies in any
case connected with its application,
implementation or enforcement of the
CARP(Sec. 55, R.A. 6657, Comprehensive Agrarian
Reform Law; Riano, Civpro Vol. II, 2016, p.75).
4. A court may not interfere by injunction with
the orders of another court of co-equal rank
or decrees of a court with concurrent or
coordinate jurisdiction(Riano, Civpro Vol. II,
2016, p.75).
4.D.5 Grounds for the Issuance
ofPreliminary Injunction (EnCoD)
a. The applicant is Entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission or
continuance of the act or acts complained of,
or in requiring the performance of an act or
acts either for a limited period or perpetually;
b. The Commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
c. A party, court, agency or a person is Doing,
threatening, or is attempting to do, or is
procuring or suffering to be done some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action
or proceeding, and tending to render the
judgment ineffectual(Rule 58, Sec. 3).
4.D.6. Grounds for objecton to, or for the
dissolution of injunction or restraining
order
1. The application for injunction or restraining
order may be denied upon ahsowing of its
insufficiency;

When insufficient:
a) It if is not verified and supported by any of
the grounds for its issuance;
b) It does not show factsentitling applicant to
the relief; or
c) Not supported by required bond.
2. On other grounds by affidavits of the party or
parties enjoined (Rule 58, Sec. 6);
3. If it appears after hearing that applicant
entitled but the issuance or continuance
would cause irreparable damage to the party
oe person enjoined while the applicant can be
fully compensated for such damages as he
may suffer(Rule 58, Sec. 6).
Note: The mere filing of a counterbond does
not necessarily warrant the dissolution of the
writ of preliminary injunction. Under Sec. 6,
Rule 58, the court is called upon to exercise
its discretion in determining or weighing the
relative damages that may be suffered by the
parties. If the damages that may be suffered
by the defendant by the continuance of the
injunction outweigh the damages that may be
suffered by the plaintiff by the dissolution of
the injunction, then the injunction should be
dissolved(Director of Bureau of
Telecommunications vs. Aligaen, G.R. No. L-31135,
May 29, 1970).
4.D.7. Duration of temporary restraining
orders
1.The court to which the application for
preliminary injunction was made, may issue
ex parte a TRO to be effective only for a
period of 20 daysfrom service on the party or
person sought to be enjoined.
2. The executive judge of a multiple-sala court or
the presiding judge of a single-sala court may
issue ex parte a TRO effective for only 72
hoursfrom issuance.
Within the aforesaid period, the judge before
whom the case is pending shall conduct a
summary hearing to determine if such TRO
should be extended. In case of extension, it
Purple Notes
Remedial Law
shall not exceed 20 days which include the
original 72 hours of the previous issuance.
The 20-day period shall not apply to the
following:
a.Court of Appeals – the TRO shall be
effective for 60 days from service on the
party or person sought to be enjoined.
b. Supreme Court – it shall be effective until
further orders.
4.D.8. Rule on prior or contemporaneous
service of summons in relation to
attachment
When an application for a writ of preliminary
injunction or a temporary restraining order (TRO)
is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and in
the presence of the adverse party or the person
to be enjoined.
In any event, such notice upon the adverse party
in the Philippines shall be preceded, or
contemporaneously accompanied, by:
a. service of summons;
b. copy of the complaint or initiatory pleading;
and,
c. applicant‘s affidavit and bond
When Prior or Contemporary Service of
Summons NOT Required
a) summons could not be served personally
despite diligent efforts; or,
b) summons could not be served by substituted
service despite diligent efforts; or,
c) adverse party is a:
i) Resident of the Philippines temporarily
absent therefrom; or,
ii) Non-resident (Sec. 4[c], Rule 58)
4.E. RECEIVERSHIP (Rule 59)
Nature of a Receivership
It is a provisional or ancillary remedy wherein the
court appoints a receiver to receive and preserve
Bar Operations C ommissions 209
 Purple Notes
Remedial Law
the property or fund in litigation pendente lite,
when it does not seem reasonable to the court
that either party should hold it (Riguera, Primer-
Reviewer on Remedial Law, Civil Procedure, Vol. I,
2015 Ed).
 Q. What is the purpose of receivership?
A. It is aimed at the preservation of, and at
making more secure, existing rights. It
cannot be used as an instrument for the
destruction of those rights (Arranza v. B.F.
Homes, Inc., G.R. no. 131683, June 19, 2000).
 Q. May the court deny the appointment of a
receiver?
A.Yes.The appointment is NOT a matter of
absolute right. It depends upon the sound
discretion of the court and is based on facts
and circumstances of each particular case
(Commodities Storage & Ice Plant Corp. vs. CA,
G.R. no. 125008, June 19, 1997).
Which court has jurisdiction to appoint a
receiver?
a)The court where the action is pending
b)TheCourt of Appeals or a member thereof
c)The Supreme Court or any member
thereof(Riano, Civil Procedure, Vol II, 2016 Ed.,
p.88)
Who May be Appointed as Receiver?
1) Any person indifferent to the parties who is
impartial and disinterested.
2)Party in litigation, with consent of other parties
3) Clerk of Court, with bond.
 Q. Who is a receiver?
A. A receiver is a person appointed by the
court in behalf of all the parties to an action
for the purpose of preserving and conserving
the property in litigation and prevent its
possible destruction or dissipation if left in
the possession of any of the parties
(Commodities Storage & Ice Plant Corp. vs. CA,
G.R. no. 125008, June 19, 1997).
 Q. Is a receiver a representative of either
party?
210 Center for Legal Education and Research
A. No.A receiver is not an agent or
representative of any party in action. He is an
officer of court exercising his functions not
for the interest of either plaintiff or
defendant, but for the COMMON BENEFIT of
ALL parties in interest. He is ―subject to the
control of the Court‖(Pacific Merchandising
Corp. vs Cosolacion Insurance & Surety Co., G.R.
nos. L-30204, October 29, 1976; Riano, Civil
Procedure, Vol. II, , 2016 ed., pg. 88).
4.E.1 Cases When Receiver May Be
Appointed (Rule 59, Sec. 1)(IFAC)
a) When a party applying for a receiver has an
Interest in the property or fund under
litigation, and the same is in danger of being
lost, removed or materially injured unless a
receiver be appointed to administer and
preserve it(Making Enterprise, Inc. vs. Marfori,
G.R. nno. 152239, August 17, 2011);
b) In an action for the Foreclosure of a
mortgage, when the mortgaged property is
in danger of being wasted or dissipated or
materially injured, and that its value is
insufficient to discharge the mortgage debt,
or if parties so stipulated in the contract of
mortgage(Commodities Storage and Ice Plant
Corporation vs Court of Appeals, G.R. no.
125008, June 19, 1997);
c) After judgment, to preserve the property
during pendency of the Appeal or to dispose
of it according to the judgment or to aid
execution thereof if unsatisfied(DSM
Construction and Development Corporation vs.
Court of Appeals, G.R. No. 166993, December 19,
2005);
d) Whenever it appears that the appointment
of a receiver is the most Convenient and
feasible means of preserving, administering
or disposing the property in litigation
(Biraogo vs. The Philippine Truth Commission of
2010, G.R. No. 192935, December 7, 2010).
4.E.2. Requisites
1. A verified application filed by the party
applying for the appointment of a receiver.
(Sec. 1(a), Rule 59);
2. The applicant to file a bond executed to
the party against whom the application is
presented, in an amount to fixed by the court
(Sec. 2, Rule 59).

Conditions of the Bond
a) executed to the party against whom the
application is presented;
b) in an amount to be fixed by the court;
c) to the effect that the applicant will pay such
party all damages he may sustain by reason
of the appointment of such receiver in case
the applicant shall have procured such
appointment without sufficient cause
The court may, in its discretion, at any time after
the appointment, require an additional bond as
further security for such damages(Rule 59, Sec. 2).
4.E.3. Requirements before issuance of an
order
1.A verified application filed by the party applying
for the appointment of a receiver. (Sec. 1(a),
Rule 59);
2. Interest of the applicant in the property or
funds subject of the action (Sec. 1(a), Rule
59);
3. The application must be with notice and set for
hearing;
4. Before issuing the appointment of a receiver,
the applicant is required to post a bond; and,
5. The receiver must be sworn to perform his
duties faithfully and shall file a bond (Sec. 4,
Rule 59).
4.E.4. General Powers of a Receiver
(BTRC2MPD2I)
1. Bring and defend action in his own name
inhis capacity as receiver;
2. Take and keep possession of the property in
controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to
fund, property, estate or corporation of
which he is the receiver;
5. Compound for and compromise the same.
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that
shall remain among the persons legally
entitled to receive them;
9. Generally to Do such acts respecting the
property as the court may authorize; and
Purple Notes
Remedial Law
10. Invest funds in his hands, only by the order
of the court upon the written consent of all
the parties to the action.(Rule 59, Sec. 6)
Acts of Receiver that need court approval
1. Funds in the hands of the receiver may be
invested only by order of the court upon the
written consent of all the parties to the
action (Rule 59, Sec. 6).
2. No action may be filed by or against the
receiver without leave of court which
appointed him (Rule 59, Sec. 6).
3. A receiver cannot enter into a conract
without the approval of the court (Pacific
Merchandising Corp. vs. Consolacion
Insurance & Surety Company, GR No. L-
30204, Pctober 29, 1976).
Instances When Receivership May Be
Denied or Lifted (Rule 59, Sec. 3)
a)Filing of a counterbond; or
b) No sufficient cause for appointing a receiver.
Liability for Refusal or Neglect to Deliver
Property to Receiver
A person who refuses or neglects, upon
reasonable demand, to deliver to the receiver all
the property, money, books, deeds, notes, bills,
documents and papers within his power or
control, subject of or involved in the action or
proceeding, or in case of disagreement, as
determined and ordered by the court, may be:
1. punished for contempt;
2. shall be liable to the receiver for the money
or the value of the property and other things
so refused or neglected to be surrendered;
3. shall be liable for all damages that may have
been sustained by the party or parties
entitled thereto as a consequence of such
refusal or neglect (Rule 59, Sec. 7).
4.E.5. Two (2) Kinds of Bonds
1. Applicant’s Bond (for appointment of
receiver) – To pay the damages the adverse
party may sustain by reason of appointment
of receiver (Rule 59, Sec. 2).
Bar Operations C ommissions 211
 Purple Notes
Remedial Law
2. Receiver’s Bond (of the appointed plaintiff or he has
receiver, aside from oath) – To answer for right of possession
receiver‘s faithful discharge of his duties over the same.
(Rule 59, Sec. 4). No need to show that In some cases, needs to
the property is being show that the property is
concealed or disposed being concealed, removed,
4.E.6. Termination of Receivership to the prejudice of or disposed of.
plaintiff.
The receivership shall be terminated if upon Can be sought only May be resorted to even if
motion of either party or motu proprio by the when defendant is in the property is in
court, the necessity for a receiver no longer actual or constructive possession of a third
exists (Rule 59, Sec. 8). possession of the person.
property.
Procedure in the Termination of Only extends to Extends to all types of
Receivership: personal property property whether real,
capable of manual personal or incorporeal.
delivery.
1. Due notice to all interested parties;
Cannot be availed of Can be availed of even if
2. Hearing; when property is in property is in custodia
3. Settling the accounts of the receiver; and custodia legis. legis.
4. Directing delivery of the funds and other Available before Available from
property in the receiver‘s possession to the defendant answers. commencement but before
person adjudged to receive (Rule 59, Sec. 8). entry of judgment.
Bond is double the Bond is fixed by the
Note: Receiver is allowed a reasonable value of the property court(Riano, Civil
compensation set by the court as the case may Procedure, Vol. II, p. 95,
warrant to be taxed as costs against the defeated 2016 ed.).
party, or apportioned if justice requires(Rule 59,
Sec. 8). 4.F.1. When may Writ be Issued

4.F. REPLEVIN 1. At the commencement of the action; or

2. At any time before answer (Rule 60, Sec. 1).
Replevinunder Rule 60 is a provisional remedy
4.F.2. Requisites
wherein a party praying for the recovery of
possession of personal property may apply for an
1. Applicant must file for an application for writ
order for the delivery to him of such property
of replevin before defendant answers.
wrongfully detained by the adverse party.
 Q. How should the application for writ of
Replevin Distinguished vs. Preliminary
replevin be filed?
Attachment
A. A party praying for the provisional
PRELIMINARY
REPLEVIN remedy must file an application for a writ
ATTACHMENT
Purpose is to recover Purpose is to place the of replevin. His application must be filed
personal property property in custodialegisto at the commencement of the action or at
capable of manual secure satisfaction of any time before the defendant answers,
delivery from adverse judgment that may be and must contain an affidavit particularly
party. rendered in favor of describing the property to which he is
applicant. entitled of possession(Davao Light and
May be sought only Available even if recovery Power Co. Inc, vs. CA, G.R. No. 93262,
when the principal of property is only December 29, 1991).
action is recovery of incidental to the relief
personal property. sought.
Personal property Property belongs to the
belongs either to defendant.

212 Center for Legal Education and Research


2. Application must contain affidavit executed by
the (i) applicant or (ii) any one who has
personal knowledge of facts.
The Affidavit must contain the
following:(ODDA)
a. The applicant is the Owner of the property
claimed, particularly describing it, or is
entitled to the possession thereof;
b. The property is wrongfully Detained by the
adverse party;
c. The property has not been Distrained; and
d. The Actual market value of the property.
3. Applicant must post a replevin bond executed
to the adverse party(Rule 60, Sec. 2).
4.F.3. Affidavit and Bond; Redelivery Bond
Contents of the Affidavit(ODDA)
1. That the applicant is the Owner of property
claimed, describing it, or entitled to its
possession;
2. That the property is wrongfully Detained by
the adverse party, alleging cause of its
detention;
3. That the property has NOT been:
 Distrained or taken for tax assessment or
fine; or,
 under writ of execution/attachment; or,
 placed under custodia legis; or,
 if seized, that it is exempt or should be
released (Navarro vs. Escobido G.R. No.
153788, November 27, 2009, supra); and,
4. The Actual market value of the property
(Government of Tuguegarao vs. Ting, G.R. Nos.
192435-36 September 14, 2011).
Replevin is not available when the property is
under custodia legis, under attachment or seized
pursuant to law (Rule 60, Sec. 2).
Note:A property held as evidence in a criminal
case cannot be replevied. However, such
propertymust is lawfully held, that is, seized in
accordance with the rule against warrantless
searches and seizures or its accepted
exceptions(Bagahilog vs. Fernandez, G.R. No. 96356,
June 27, 1991).
Purple Notes
Remedial Law
Conditions of Replevin Bond
1. posted by the applicant;
2. executed to the adverse party;
3. in double the value of the property(Rule 60,
Sec. 2).
Purpose of Replevin Bond
1. For the return of the property to the adverse
party, if such return be adjudged; and,
2. for the payment to the adverse party of such
sum as he may recover from the applicant in
the action(Rule 60, Sec. 2).
Where the court awards damages based on
Articles 19 and 20 of the Civil Code and not on
the deprivation of personal properties subject of
the replevin bond, recourse on the bond for the
payment of such damages is NOT proper (Riano,
Civil Procedure, Vol. II, 2016 ed., p. 98).
Order of the Court and Writ of Replevin
Upon filing of affidavit and approval of bond, the
court shall issue an Order and a Writ of Replevin.
The Writ of Replevin shall:
1. Describe the personal property alleged to be
wrongfully detained; and,
2. Require the Sherif to take such property in his
custody (Rule 60, Sec. 3).
4.F.4. Sheriffs Duty in the Implementation
of the Writ; when Property is claimed by
Third Party
Sheriff’s Duty
Upon receipt of the order, the sheriff must:
1. serve a copy of order on the adverse party,
together with a copy of the application,
affidavit and bond;
2. Take the property, if it be in the possession
of the adverse party, or his agent;
3. Retain the property in his custodywithin five
(5) days from the taking of the property shall
wait for the move of the adverse party and,
Bar Operations C ommissions 213
 Purple Notes
Remedial Law
4. Deliver the property to the party entitled
(Rule 60, Sec. 4).
Service of Writ of Replevin
A writ of replevin may be served anywhere in the
Philippines(Fernandez vs. The Internation Corporate
Bank, G.R. No. 131283, October 7, 1999).
Property is Wholly or Partly Concealed
1)If the property or any part thereof be
concealed in a building or enclosure, the
sheriff must demand its delivery.
2) If not delivered, the sheriff must cause the
building or enclosure to be broken open and
take the property into his possession (Rule 60,
Sec. 4).
When Defendant is Entitled to Return of
Property (PIN)
a) He Posts a redelivery bond;
b) The plaintiff‘s bond is found to be Insufficient
or defective and is not replaced with a proper
bond; or,
c) The property is Not delivered to the plaintiff
for any reason.
Redelivery Bond (Rule 60, Sec. 5)
If the adverse party does not object to the
sufficiency of the applicant‘s bond, he may, at
any time before the delivery of the property to
the applicant, require the return thereof, by filing
with the court a bond executed to the applicant.
The bond is double the value of the property.
Service of the copy of such bond to the applicant
shall also be required.
 Q. State the requirement of the rules on the
redelivery bond of the property to the
defendant.
A. It is required that the redelivery bond be
filed within the period of 5 days after the
taking of the property. The rule is mandatory
(Yang vs. Valdez, G.R. No. 73317, August 31,
1989).
214 Center for Legal Education and Research
Effect of the Dismissal of the Complaint for
Replevin for Failure of Plaintiff to Prosecute
Parties‘ status prior to litigation shall be restored
and the property must be returned to the
defendant (Riano, Civil Procedure, Vol. II, p. 102,
2016 ed.).
Procedure When There is a Third-Party
Claimant(Rule 60, Sec. 7)
Any third-party claimant or his agent must:
1. Make an affidavit of his title thereto, or right
to the possession thereof, stating the
grounds therefor; and,
2. Serve such affidavit upon the sheriff while
the latter has possession of the property and
a copy thereof upon the applicant (Rule 60,
Sec. 4).
 Note: A third-party refers to any person
other than the party against whom the writ
of replevin had been issued. He may may
vindicate his claim to the property under
replevin in the same or separate action(Rule
60, Sec. 7).
Effect of the Third-Party Claimant’s
Affidavit
General Rule: Sheriff is not bound to keep the
property under replevin or to deliver it to the
applicant.
Exception: When the applicant or his agent files
a bond approved by the court in a sum not less
than the value of the property under replevin.
Notes:
 No claim for damages for the taking or
keeping of the property may be enforced
against the bond UNLESS the action
therefore is filed within 120 days from the
date of the filing of the bond.
 Filing of a bond is NOT required when the
writ of replevin is issued in favor of the
Republic of the Philippines, or any officer
duly representing it.

 Sheriff is not liable for damages against the
third-party claimant if bond is filed(Rule 60,
Sec. 7).
Judgment in the Alternative
a) For the delivery of the chattel to the party
entitled thereto;
b) For the payment of value in case delivery
cannot be made, and also for such damages
if warranted (Rule 60, Sec. 9).
4.G. PROVISIONAL REMEDIES AND
INTERIM RELIEFS UNDER SPECIAL LAWS
AND RULES
4.G.1. Provisional Remedies of the Family
Courts
In Violence Cases
In cases of violence among immediate family
members living in the same domicile or
household, the Family Court may issue a
restraining order against the accused of
defendant upon verified application by the
complainant or the victim for relief from abuse
(RA 8369 Family Courts Act of 1997, Sec. 7).
In Civil Actions for Custody
The court may order the temporary custody of
children in all civil actions for their custody(RA
8369 Family Courts Act of 1997, Sec. 7).
In Civil Actions forSupport
The court may also order support pendente lite,
including deduction from the salary and use of
conjugal home and other properties in all civil
actions for support(RA 8369 Family Courts Act of
1997, Sec. 7).
Provisional Orders in petition for
declaration of absolute nullity of void
marriage or for annulment of voidable
marriage, or for legal separation cases
When Issued
Upon receipt of a verified petition and at any
time during the proceeding the court, motu
Purple Notes
Remedial Law
proprio or upon application under oath of any of
the parties, guardian or designated custodian,
may issue provisional orders and protection
orders with or without a hearing(A.M. No. 02-11-
12-SC Rule on Provisional Order, Sec. 1).
Requirement and Enforceability
These orders may be enforced immediately, with
or without a bond, and for such period and under
such terms" and conditions as the court may
deem necessary (A.M. No. 02-11-12-SC Rule on
Provisional Order, Sec. 1).
Kinds of Provisional and Protection Orders
which the Court may Issue(A.M. No. 02-11-12-
SC Rule on Provisional Order)
1. Spousal Support - court may award support
to either spouse in such amount and for such
period of time as the court may deem just
and reasonable based on their standard of
living during the marriage.
2. Child Support – for support, maintenance and
education of the child in proportion to the
resources or means of either parent entitled
to give support and to the necessities of the
child.
3. Child Custody - the court shall consider the
best interests of the child and shall give
paramount consideration to the material and
moral welfare of the child.
4. Visitation Rights - shall be provided to the
parent who is not awarded provisional
custody unless found unfit or disqualified by
the court
5. Hold Departure Order- no child of the parties
shall be brought out of the country without
prior order from the court.
4.G.2. Human Security Act
Provisional Remedies under HAS
1. Restriction on Travel
2. Judicial Authorization Required to Examine
Bank Deposits, Accounts, and Records
3. Seizure and Sequestration
Restriction to Travel ( RA 9372 Human Security
Act, Sec. 26)
Bar Operations C ommissions 215
 Purple Notes
Remedial Law
Requisites for the Issuance of Restriction
to Travel
1. Evidence of guilt is not strong;
2. Person charged with the crime of terrorism or
conspiracy to commit terrorism is entitled to
bail and is granted the same;
3. Application by the prosecutor for travel
restriction;
4. Restriction is in the interest of national
security and public safety, consistent with
Article III, Section 6 of the Constitution
Restrictions of Restriction to Travel
A.) Limit the right of travel of the accused to
within the municipality or city where he
resides or where the case is pending; or
B.) House arrest without the use of means of
communication unless otherwise ordered by
the Court.
Application and Grant of Order to Inspect
and Examine
A written order shall only be granted:
1. 1.Upon an ex parte application to that effect
of a police or of a law enforcement official
who has been duly authorized in writing to file
such ex parte application by the Anti-
Terrorism Council;
2. Upon examination under oath or affirmation of
the applicant and, the witnesses he may
produce to establish the facts that will justify
the need and urgency of examining and
freezing the bank deposits, placements, trust
accounts, assets, and records. (RA 9372
Human Security Act, Sec. 28) and
3. Determination of the probable cause in a
hearing called for that purpose by the Justices
of the Court of Appeals designated as a
special court to handle anti-terrorism cases.
(RA 9372 Human Security Act, Sec. 27)
Effectivity (RA 9372 Human Security Act, Sec. 30)
The authorization to examine or cause the
examination of and to freeze bank deposits,
placements, trust accounts, assets, and records,
216 Center for Legal Education and Research
or to gather information about the same, shall be
effective for the length of time specified in the
written order of the authorizing division of the
Court of Appeals, which shall not exceed a period
of thirty (30) days from the date of receipt of the
written order by the applicant.
It may be extended for another period not
exceeding 30 days provided that:
 Authorizing division of the Court of Appeals is
satisfied that such extension or renewal is in
the public interest;
 Application of renewal shall be filed by original
applicant; and
 The application for renewal been duly
authorized in writing by the Anti-Terrorism
Council.
Seizure and Sequestration of Accounts and
Assets
The deposits and their outstanding balances,
placements, trust accounts, assets, and records
in any bank or financial institution, moneys,
businesses, transportation and communication
equipment, supplies and other implements, and
property of whatever kind and nature belonging:
(1) to any person suspected of or charged before
a competent Regional Trial Court for the crime of
terrorism or the crime of conspiracy to commit
terrorism; (2) to a judicially declared and
outlawed organization, association, or group of
persons; or (3) to a member of such
organization, association, or group of persons
shall be seized, sequestered, and frozen in order
to prevent their use, transfer, or conveyance for
purposes that are inimical to the safety and
security of the people or injurious to the interest
of the State.
The accused or a person suspected of may
withdraw such sums as may be reasonably
needed by the monthly needs of his family
including the services of his or her counsel and
his or her family's medical needs upon approval
of the court. He or she may also use any of his
property that is under seizure or sequestration or
frozen because of his/her indictment as a
terrorist upon permission of the court for any
legitimate reason. (RA 9372 Human Security Act,
Sec. 39)
 Purple Notes
Remedial Law
Nature of the Seized and Sequestered be enforced by law enforcement agencies. The
Accounts and Assets protection orders that may be issued under this
Act are the barangay protection order (BPO),
It shall be deemed as property held in trust by temporary protection order (TPO) and permanent
the bank or financial institution for such person protection order (PPO) (RA 9262 Anti-VAWC Act,
and the government during the pendency of the Sec.8)
investigation of the person suspected of or during
the pendency of the trial of the person charged  Barangay protection order (BPO) - Barangay
with any of the said crimes, as the case may be Protection Orders (BPOs) refer to the
and their use or disposition while the case is protection order issued by the Punong
pending shall be subject to the approval of the Barangay ordering the perpetrator to desist
court before which the case or cases are from committing acts under Section 5 (a) and
pending. (RA 9372 Human Security Act, Sec. 40) (b) of this Act (RA 9262 Anti-VAWC Act, Sec.14);
 Temporary Protection Order (TPO) - refers to
Disposition of the Seized and Sequestered the protection order issued by the court on
Accounts and Assets the date of filing of the application after ex
parte determination that such order should be
1. If accused is found, after his investigation, to issued. (RA 9262 Anti-VAWC Act, Sec.15)
be innocent by the investigating body, or is  Permanent Protection Order (PPO)refers to
acquitted, after his arraignment or his case is protection order issued by the court after
dismissed before his arraignment by a notice and hearing (RA 9262 Anti-VAWC Act,
competent court, the accounts and assets Sec.16)
hall be deemed released from such seizure,
sequestration and freezing, and shall be BPO TPO PPO
(RA 9262 (RA 9262 Anti- (RA 9262 Anti-
restored to him without any delay by the
Anti-VAWC VAWC Act, VAWC Act,
bank or financial institution concerned Act, Sec.14) Sec.15) Sec.16)
without any further action on his part. The Issued by Issued by the Issued by the
filing of any appeal on motion for the Punong court on the filing court after
reconsideration shall not state the release of Barangay, or of the application notice and
said funds from seizure, sequestration and in his and after ex parte hearing.
freezing. absence the determination of
Barangay its need. It may
2. If found guilty, forfeited in favor of the Kagawad, also be issued in
ordering the the course of a
government. (RA 9372 Human Security Act,
perpetrator hearing, motu
Sec. 41)
to desist proprio or upon
from motion.
4.G.3. Anti-Violence against Women and committing
Children Act acts of
violence
Protection Orders available against the
family or
A protection order is an order issued under this household
act for the purpose of preventing further acts of members
particularly
violence against a woman or her child specified in
women and
Section 5 of this Act and granting other their
necessary relief. The relief granted under a children.
protection order serve the purpose of
safeguarding the victim from further harm, Effective for Effective for 30 Effective until
minimizing any disruption in the victim's daily life, 15 days. But days may be revoked by a
and facilitating the opportunity and ability of the will not bar renewed by the court upon
victim to independently regain control over her the grant of Court until PPO is application of
life. The provisions of the protection order shall TPO and issued. the person in

Bar Operations C ommissions 217

 Purple Notes
Remedial Law
PPO. whose favor
the order was
issued
Temporary Protection Order under Rule on
VAWC (A.M. No. 04-10-11-SC, October 19, 2004)
Form of Petition
A petition for protection order shall be in writing,
signed and verified by the petitioner. It shall be
accompanied by a certificate of non-forum
shopping which the petitioner must sign
personally (Sec. 7).
Who may file
a) The offended party;
b) Parents or guardians of the offended party;
c) Ascendants, descendants or collateral
relatives of the offended party within the
fourth civil degree of consanguinity or
affinity;
d) Officers or social workers of the Department
of Social Welfare and Development (DSWD)
or social workers of local government units
(LGUs);
e) Police officers, preferably those in charge of
women and children's desks;
f) Punong Barangay or Barangay Kagawad;
g) Lawyer, counselor, therapist or healthcare
provider of the petitioner; or
h) At least two concerned, responsible citizens
of the place where the violence against
women and their children occurred and who
have personal knowledge of the offense
committed.(Sec. 8)
Hierarchy in Filing
Filing of offended party suspends the right of
other authorized parties but filing of other party
shall not dismiss the right of the offended party
to file. The petition of the offended party shall be
consolidated with the petition filed earlier(Sec. 8).
Where to File
a) Family Court of the place where the offended
party resides.
b) If there is no existing Family Court, it may be
filed with the regional trial court,
218 Center for Legal Education and Research
metropolitan trial court, municipal trial court
in cities, municipal trial court or municipal
circuit trial court with territorial jurisdiction
over the place of residence of the offended
party(Sec. 9).
Ex Parte Issuance of TPO
a) If the court is satisfied from the verified
allegations of the petition that there is
reasonable ground to believe that an
imminent danger of violence against women
and their children exists or is about to recur,
the court may issue ex parte a temporary
protection order which shall be effective for
thirty days from service on the party or
person sought to be enjoined.
b) The temporary protection order shall include
notice of the date of the preliminary
conference and hearing on the merits with a
with the printed statement provided for by
law.
c) The court shall likewise order the immediate
issuance of a notice requiring the respondent
to file an opposition within five days from
service. It shall further order service of (1)
the notices to file opposition and of dates of
the preliminary conference and hearing, (2)
the protection order, and (3) copy of the
petition, upon the respondent by the court
sheriff, or any person authorized by the
court, who may obtain the assistance of law
enforcement officers.(Sec. 15)
Notice where no TPO is issued ex parte
Where no temporary protection order is issued ex
parte, the clerk of court shall forthwith issue the
corresponding notice to the respondent requiring
him to file an opposition within five days. The
date of the preliminary conference and hearing
on the merits shall be indicated on the notice
(Sec. 16).
4.G.4. Anti-Money Laundering Act
Freezing of Monetary Instrument or
Property (Freeze Order) (RA 10167, Sec. 1)

Requisites for Issuance
1. Upon verified ex parte petition by the AMLC
and
2. After determination that probable cause exists
that any monetary instrument or property is in
any way related to an unlawful activity
Effectivity
Court of Appeals may issue a freeze order which
shall be effective immediately. The freeze order
shall be for a period of twenty (20) days unless
extended by the court. In any case, the court
should act on the petition to freeze within
twenty-four (24) hours from filing of the petition.
If the application is filed a day before a
nonworking day, the computation of the twenty-
four (24)-hour period shall exclude the
nonworking days.‖
Motion to Lift
A person whose account has been frozen may file
a motion to lift the freeze order and the court
must resolve this motion before the expiration of
the twenty (20)-day original freeze order.
TRO or INJUNCTION may not be issued
No court shall issue a temporary restraining order
or a writ of injunction against any freeze order,
except the Supreme Court.
Authority to Inquire Deposit or
Investment(RA 10167, Sec. 2)
The AMLC may inquire into or examine any
particular deposit or investment, including related
accounts, with any banking institution or non-
bank financial institution upon order of any
competent court based on an ex parte application
in cases of violations of this Act, when it has
been established that there is probable cause
that the deposits or investments, including
related accounts involved, are related to an
unlawful activity.
The Court of Appeals shall act on the application
to inquire into or examine any deposit or
investment with any banking institution or non-
bank financial institution within twenty-four (24)
hours from filing of the application.
Purple Notes
Remedial Law
4.G.5. Financial Rehabilitation and
Insolvency Act
Commencement Order
The Court shall issue a Commencement Order
within five days after filing a petition for
rehabilitation which is sufficient in form and
substance. Unless lifted by the court, the
Commencement Order shall be for the effective
for the duration of the rehabilitation proceedings
for as long as there is a substantial likelihood that
the debtor will be successfully rehabilitated. The
Commencement Order shall contain the following
provisional orders:
1. Stay or Suspension Order
2. Appointment of Rehabilitation Receiver.
Stay or Suspension Order
Stay or Suspension Order shall refer to an order
issued in conjunction with the commencement
order that shall:
1. suspend all actions or proceedings, in court or
otherwise, for the enforcement of claims
against the debtor;
2. suspend all actions to enforce any judgment,
attachment or other provisional remedies
against the debtor;
3. prohibit the debtor from selling, encumbering,
transferring or disposing in any manner any of
its properties except in the ordinary course of
business; and
4. prohibit the debtor from making any payment
of its liabilities outstanding as of the
commencement date except as may be
provided herein. (RA 10142, Sec. 16 (q))
The issuance of a stay order does not affect the
right to commence actions or proceedings in
order to preserve ad cautelam a claim against the
debtor and to toll the running of the prescriptive
period to file the claim. For this purpose, the
plaintiff may file the appropriate court action or
proceeding by paying the amount of One
Hundred Thousand Pesos (P100,000.00) or one-
tenth (1/10) of the prescribed filing fee,
whichever is lower. The payment of the balance
of the filing fee shall be a jurisdictional
Bar Operations C ommissions 219
 Purple Notes
Remedial Law
requirement for the reinstatement or revival of
the case. (A.M. No. 12-12-11-SC, Rule 2, Sec. 8)
Exceptions to the Stay or Suspension Order
The Stay or Suspension Order shall not apply:
a) to cases already pending appeal in the
Supreme Court as of commencement date
Provided, That any final and executory
judgment arising from such appeal shall be
referred to the court for appropriate action;
b) subject to the discretion of the court, to
cases pending or filed at a specialized court
or quasi-judicial agency which, upon
determination by the court is capable of
resolving the claim more quickly, fairly and
efficiently than the court: Provided, That any
final and executory judgment of such court
or agency shall be referred to the court and
shall be treated as a non-disputed claim;
c) to the enforcement of claims against sureties
and other persons solidarily liable with the
debtor, and third party or accommodation
mortgagors as well as issuers of letters of
credit, unless the property subject of the
third party or accommodation mortgage is
necessary for the rehabilitation of the debtor
as determined by the court upon
recommendation by the rehabilitation
receiver;
d) to any form of action of customers or clients
of a securities market participant to recover
or otherwise claim moneys and securities
entrusted to the latter in the ordinary course
of the latter's business as well as any action
of such securities market participant or the
appropriate regulatory agency or self-
regulatory organization to pay or settle such
claims or liabilities;
e) to the actions of a licensed broker or dealer
to sell pledged securities of a debtor
pursuant to a securities pledge or margin
agreement for the settlement of securities
transactions in accordance with the
provisions of the Securities Regulation Code
and its implementing rules and regulations;
f) the clearing and settlement of financial
transactions through the facilities of a
clearing agency or similar entities duly
authorized, registered and/or recognized by
the appropriate regulatory agency like the
220 Center for Legal Education and Research
BangkoSentral ng Pilipinas (BSP) and the
SEC as well as any form of actions of such
agencies or entities to reimburse themselves
for any transactions settled for the debtor;
and
g) any criminal action against individual debtor
or owner, partner, director or officer of a
debtor shall not be affected by any
proceeding commend under this Act(RA
10142, Sec. 18).
Rehabilitation Receiver
It is the person or persons, natural or juridical,
appointed as such by the court pursuant to the
Act and which shall be entrusted with such
powers, duties, and responsibilities as set forth
herein. Where the rehabilitation receiver is a
juridical entity, the term includes the juridical
entity's designated representative (A.M. No. 12-12-
11-SC, Rule 1, Sec. 5(p)).
Appointment of Rehabilitation Receiver
The Rehabilitation Receiver is initially appointed
by the court in the Commencement Order(RA
10142, Sec. 16 (h)).
The Court may retain or appoint another after
the initial hearing (RA 10142, Sec. 30).
Qualifications of a Rehabilitation Receiver
(A.M. No. 12-12-11-SC, Rule 2, Sec. 21)
A. The rehabilitation receiver who is a natural
person must comply with the following
minimum qualifications and requirements:
1. He is a citizen of the Philippines or a
resident of the Philippines for at least six
(6) months immediately preceding his
nomination;
2. He is of good moral character and with
acknowledged integrity, impartiality and
independence;
3. As far as practicable, he has expertise
and acumen to manage and operate a
business similar in size and complexity to
that of the debtor;
4. He has an operating knowledge in
management, finance and rehabilitation
of distressed companies;

5. He has a general familiarity with the
rights of creditors subject to suspension
of payments or rehabilitation and a
general understanding of the duties and
obligations of a rehabilitation receiver;
6. He has not been earlier dismissed as a
rehabilitation receiver pursuant to Section
27 of this Rule;
7. He has no conflict of interest as defined
in this Rule; and
8. He is willing and able to file a bond in
such amount as may be determined by
the court.
B. The rehabilitation receiver, which is a
juridical person, must comply with the
following qualifications and requirements:
1. It is duly authorized to do business in the
Philippines for at least six (6) years prior
to its appointment;
2. It is of good standing as certified by the
appropriate regulatory agency/ies;
3. It has no conflict of interest as defined in
this Rule;
4. It has not been earlier dismissed as a
rehabilitation receiver pursuant to Section
27 of this Rule;
5. It must submit the name of the person
designated to discharge the
responsibilities and powers of a
rehabilitation receiver and the names of
the employees and other persons
authorized to assist the designated
representative, together with a sworn
certification that these persons possess
the qualifications and none of the
disqualifications enumerated above;
6. It must submit a sworn undertaking, duly
approved in accordance with law, binding
itself to be solidarily liable with the
persons designated by it to discharge the
functions and responsibilities of a
rehabilitation receiver;
7. It is willing and able to file a bond in such
amount as may be determined by the
court;
8. It is not disqualified to discharge the
duties of a rehabilitation receiver under
the Constitution and other relevant laws;
Purple Notes
Remedial Law
C. In addition, the designated representative of
the juridical person must comply with the
following requirements:
1. The representative must be duly
designated and authorized to act for and
on behalf of the juridical entity;
2. The designated representative must be a
director, officer, stockholder or partner of
the juridical entity; and
3. The designated representative must
submit a sworn undertaking that he shall
be solidarily liable with his firm for all the
obligations and responsibilities of a
rehabilitation receiver.
Conflict of Interest Rule
No person with conflict of interest shall be
appointed as a receiver. An individual shall be
deemed to have a conflict of interest if he is so
situated as to be materially influenced in the
exercise of his judgment for or against any party
to the proceedings. A conflict of interest of an
individual employed or contracted by the
rehabilitation receiver or the management
committee or its members shall be deemed to be
a conflict of interest of the rehabilitation
receiver(A.M. No. 12-12-11-SC, Rule 2, Sec. 22).
Conflict of interest shall be disclosed at all times
throughout the proceedings to the court and to
the creditors (A.M. No. 12-12-11-SC, Rule 2, Sec.
23).
Within ten (10) days from receipt of the
disclosure of conflict of interest any party to the
proceedings adversely affected by the
appointment of the persons to the positions
above may file his objection to the appointment
of the rehabilitation receiver. Should the court
decide that the objection has merit and that the
conflict of interest will be detrimental to the
general interest of the stakeholders, it shall
dismiss the rehabilitation receiver having conflict
of interest and appoint a new one. Failure to file
a timely objection shall be deemed a waiver of
the conflict of interest rule(A.M. No. 12-12-11-SC,
Rule 2, Sec. 24).
Bar Operations C ommissions 221
 Purple Notes
Remedial Law
Oath and Bond of the Rehabilitation
Receiver
Prior to entering upon his powers, duties and
responsibilities, the rehabilitation receiver shall
take an oath and file a bond, in such amount to
be fixed by the court, conditioned upon the
faithful and proper discharge of his powers,
duties and responsibilities (RA 10142, Sec. 32).
Powers, Duties and Responsibilities of the
Rehabilitation Receiver
The rehabilitation receiver shall be deemed an
officer of the court with the principal duty of
preserving and maximizing the value of the
assets of the debtor during the rehabilitation
proceedings, determining the viability of the
rehabilitation of the debtor, preparing and
recommending a Rehabilitation Plan to the court,
and implementing the approved Rehabilitation
Plan(RA 10142, Sec. 31).
Immunity
The rehabilitation receiver and all persons
employed by him, and the members of the
management committee and all persons
employed by it, shall not be subject to any
action, claim or demand in connection with any
act done or omitted to be done by them in good
faith in connection with the exercise of their
powers and functions (RA 10142, Sec. 41).
4.G.6. Precautionary Hold Departure Orders
(A.M. No. 18-07-05-SC, August 07, 2018)
Precautionary Hold Departure Order
(PHDO)
It an order in writing issued by a court
commanding the Bureau of Immigration to
prevent any attempt by a person suspected of a
crime to depart from the Philippines, which shall
be issued ex-parte in cases involving crimes
where the minimum of the penalty prescribed by
law is at least six (6) years and one (1) day or
when the offender is a foreigner regardless of the
imposable penalty(Sec.1).
222 Center for Legal Education and Research
Venue
1. In any regional trial court within whose
territorial jurisdiction the alleged crime was
committed;
2. For compelling reasons, any regional trial
court within the judicial region where the
crimewas committed if the place of the
commission of the crime is known
3. Regional trial courts in the City of Manila,
Quezon City, Cebu City, Iloilo City, Davao City,
and Cagayan de Oro City shall also have the
authority to act on applications filed by the
prosecutor based on complaints instituted by
the National Bureau of Investigation,
regardless where the alleged crime was
committed (Sec.2).
Grounds for Issuance
1. Determination by the judge that probable
cause exists; and
2. There is a high probability that the respondent
will depart from the Philippines to evade
arrest and prosecution of crime against him or
her(Sec. 4).
Form and Validity
The PHDO shall indicate the name of the
respondent, his or her alleged crime, the time
and place of its commission, and the name of the
complainant. The order shall be valid until lifted
by the issuing court as may be warranted by the
result of the preliminary investigation(Sec. 6).
Requisites for Temporary Lifting of PHDO
1. Verified petition for the temporary lifting on
the grounds that there is doubt that probable
cause exists or that it is shown that he or she
is not a flight risk; and
2. Posting of bond (Sec. 7).
5. SPECIAL CIVIL ACTIONS
5.A. NATURE OF SPECIAL CIVIL ACTIONS
 Purple Notes
Remedial Law
Special civil actions, like ordinary civil actions,are
those by which a party sues another for the 5.C. JURISDICTION AND VENUE
enforcement or protection of a right, or the
prevention or redress of a wrong. However, Jurisdiction
unlike ordinary civil actions, these are governed
by certainrulesthat are unique to them. This is Special Civil MTC OTHER
Action COURTS
what makes a civil action special (Riano, Civpro Vol
Interpleader YES RTC
II, 2016 ed., p. 122 – 123).
(Depending on
May be filed in jurisdictional
5.B. DISTINGUISH: ORDINARY CIVIL MTC(Depending amount)
ACTIONS AND SPECIAL CIVIL ACTIONS on jurisdictional
amount)
Ordinary Civil Action Special Civil Action Declaratory NO ONLY in RTC
Every ordinary civil Not all special civil Relief and
action must be based actions are based on a Similar May be subject
on a cause of action cause of action. Remedies to exceptions.
(Sec.1, Rule 2). Examples are declaratory
relief (Rule 63) and Review of NO ONLY in
interpleader (Rule 62) , Judgments, Supreme Court
where no direct Final Orders by Certiorari
transgression against and
one‘s right has been Resolutions of
committed. COMELEC and
Personal actions - Generally governed by COA
venue is determined by the Rule on Venue (Rule Certiorari, NO RTC, CA, SB or
the residence of either 4). Prohibition and COMELEC
parties. Mandamus (Election cases
Exception: in its appellate
For real actions - where as provided in the jurisdiction)
the property may be respective rule of a Quo Warranto NO RTC, CA, SC
found (Rule 4). special civil action. Expropriation NO RTC (Incapable
of pecuniary
i.e. actions for certiorari, estimation)
mandamus and Foreclosure of YES RTC (Depends
prohibition may be Real Estate on jurisdictional
commenced in the proper Mortgage May be filed in amount)
Regional Trial Court, MTC
Court of Appeals or (Depending on
Supreme Court, as the jurisdictional
case may be (Rule 65); amount)
Special rule of venue is Partition NO RTC (Incapable
provided for Quo of Pecuniary
warranto proceedings Estimation)
(Rule 66). Forcible Entry YES NO
Ordinary civil actions In special civil actions, and Unlawful
may be filed before the the nature of the action Detainer
MTC or the RTC, must be considered. For Contempt YES May also be
depending upon the instance, actions unlawful filed in RTC, CA
jurisdictional amount or detainer and forcible May be filed in or SC
the nature of the entry may be filed only MTC
action. before the MTCs. On the
other hand, Petitions for
certiorari, Mandamus and
Prohibition may only be
commenced before the
RTC, CA, or SC.

Bar Operations C ommissions 223

 Purple Notes
Remedial Law
Venue
Ordinary Civil Actions
Determined by either the residence of the parties
where the action is personal or by the location of
the property where the action is real(Rule 4).
Special Civil Actions
Special civil actions are governed by the rules on
ordinary civil actions subject to specific rules for a
particular special civil action [Rule 1, Sec. 3(a)].
Rules on venue of Ordinary Civil Actions do not
always apply to a special civil action. For
instance:
1. Review of Judgments, Final Orders and
Resolutions of COMELEC and COA - Only in
Suprement Court (Rule 64).
2. Certiorari, Prohibition and Mandamus –
a. RTCexercising jurisdiction over the
territorial area if it relates to the acts or
omissions of a lower court or of a
corporation, board, officer or person;
b. CA- whether or not it is in aid of its
appellate jurisdiction or if it involves the
acts or omissions of a quasi-judicial
agency, unless otherwise provided by law
or these Rules;
c. Sandiganbayan if it is in aid of its
appellate jurisdiction;
d. Commission on Elections in election
cases;
e. in the Supreme Court; (Rule 65)
3. Quo Warranto - the venue in a petition for
quo warranto is where the Supreme Court or
the Court of Appeals sits, if the petition is
commenced in any of these courts and
without taking into consideration where the
parties reside. It is only when the petition is
lodged with the RTC that the residence is
considered in considering venue. A petition
for quo warranto filed in the RTC merely
looks into the residence of the respondent,
not that of the petitioner. But if it is the
Solicitor General who commences the action,
another special rule is followed because the
petition may only be commenced in the RTC
in Manila, in the Court of Appeals or in the
Supreme Court(Rule 66);and
224 Center for Legal Education and Research
4. Contempt - Where the charge for indirect
contempt has been committed against a
Regional Trial Court or a court of equivalent
or higher rank, or against an officer
appointed by it, the charge may be filed with
such court. Where such contempt has been
committed against a lower court, the charge
may be filed with the Regional Trial Court of
the place in which the lower court is sitting;
but the proceedings may also be instituted in
such lower court subject to appeal to the
Regional Trial Court of such place (Rule 71).
5.D. INTERPLEADER (Rule 62)
It is a special civil action filed by a person against
whom two conflicting claims are made upon the
same subject matter and over which he claims no
interest, to compel the claimants to interplead
and to litigate their conflicting claims among
themselves (Rule 62, Sec.1).
 Q. Is an action for interpleader compulsory?
A. An interpleader is a compulsory
counterclaim. A stakeholder's action of
interpleader is too late when filed after
judgment has been rendered against him in
favor of one of the contending claimants,
especially where he had notice of the
conflicting claims prior to the rendition of the
judgment and neglected the opportunity to
implead the adverse claimants in the suit
where judgment was entered. This must be
so; because once judgment is obtained
against him by one claimant, he becomes
liable to the latter (Wack-wack Golf & Country
Club vs. Lee Won, G.R. L-23851, March 26, 1976).
 Q. What is the purpose of Interpleader?
A. It is designed to protect a person against
double vexation in respect of a single liability.
It requires, as an indispensable requisite, that
conflicting claims upon the same subject
matter are or may be made against the
stakeholder (the possessor of the subject
matter) who claims no interest whatever in
the subject matter or an interest which in
whole or in part is not disputed by the
claimants. Through this remedy, the
stakeholder can join all competing claimants
 Purple Notes
Remedial Law
in a single proceeding to determine  Subject matter is incapable of pecuniary
conflicting claims without exposing the estimation
stakeholder to thepossibility of having to pay
more than once on a single liability (Bank of Venue
Commerce vs. Planters Development Bank et.al.,
G.R. No. 154470-71, September 24, 2012). Rules in Ordinary Civil Action applies (Rule 4, Sec.
2)
 Q. What is the essence of an interpleader?
Subject Matter Venue
A.The essence of interpleader, aside from the
disavowal of interest of the property in Personal Property Residence of either plaintiff
litigation by petitioner, is the deposit of the or defendant, at the option
property or funds in controversy, with the of the plaintiff.
court (Eternal Gardens Memorial Parks Corp. vs.
First Special Cases Division Intermediate Appellate Real Property Where property is located
Court et.al., G.R. no. 73794, September 19, 1988). or portion of it is located.

Who files the petition

Effect When a Claimant Fails to Plead
The person against whom conflicting claims are Within the Time Fixed
made (Rule 62, Sec. 1).
The court may, on motion, declare the claimant
Where to file the petition in default and thereafter render judgment barring
him from any claim in respect to the subject
Jurisdiction matter(Rule 62, Sec. 5).

Basis is jurisdictional amount (Riano, Civil 5.D.1. Requisites for Interpleader (NETS)
Procedure Vol. II, 2016, Pp. 135-136; BP 129, Sec.
33): 1. The plaintiff claims No interest in the subject
matter or his claim thereto is not disputed;
1. MTC: 2. There must be at least Two or more
conflicting claimants;
Value of Personal property 3. The parties to interplead must make Effective
claims; and,
 DOES NOT EXCEED Php. 300,000 (outside 4. The subject matter must be one and the
Metro Manila) Same(Riano, Civil Procedure Vol. II, 2016, P. 130).
 DOES NOT EXCEED Php. 400,000 (within
Metro Manila) 5.D.2. When to File

Within a reasonable time after a dispute has

Value of Real Property
arisen without waiting to be sued by either
contending claimants. Otherwise, the remedy is
 DOES NOT EXCEED Php. 20,000 (outside barred by laches or undue delay (Wack-wack Golf
Metro Manila) & Country Club vs. Lee Won, L-23851, March 26,
 DOES NOT EXCEED Php. 50,000 (within 1976).
Metro Manila)
Interpleader vs. Intervention
2. RTC
Interpleader Intervention
Value of Personal or Real Property (Rule 62) (Rule 19)
Principal Ancillary
Kind of
 EXCEEDS the value within the jurisdiction of Action. Filed as Action.Filed as
action
MTC an original an ancillary action

Bar Operations C ommissions 225

 Purple Notes
Remedial Law
Interpleader Intervention 1. Action for the Reformation of an
(Rule 62) (Rule 19) instrument
special civil depending on the 2. Action to Quiet title;
action. original action. 3. Action to consolidate Ownership under
Plaintiff has no Plaintiff has Article 1607 of the Civil Code(Rule 62,
interest in the interest in the Section 1).
subject matter matter under
of the action or litigation, or
Note:There is yet no cause of action in a strict
has an interest in the success of
When therein which, in either parties, or sense under declaratory relief (Lectures in Remedial
proper to whole or in part, an interest Law, Bengzon, p. 242, 1959 Edition)
file is not disputed against both to be
by the other adversely affected  Q. May an action for declaratory relief be
parties. by the distribution sought to determine or try issues?
of the property in A. No. Where a declaratory judgment as to
the court or by an disputed fact would be determinative of
officer thereof. issues rather than a construction of definite
Defendants are Defendants are stated rights, status, and other relations,
Status of being sued already original
commonly expressed in written instruments,
defendant precisely to parties to the
implead them. pending suit.
the case is not one for declaratory
Issue an order Grant or deny a relief(Kawasaki Port Service v.Amores, G.R. No. L-
requiring the Motion to 58340, July 16, 1991).
allowance or Intervene in the
disallowance of exercise of its Jurisdiction on Declaratory Relief and
conflicting sound Similar Remedies
The court’s claimants to discretion(Riano,
action implead with Civil Procedure Vol. General Rule: Only in appropriate RTC because
one II, 2016, Pp. 136-
it is incapable of pecuniary estimation (Rule 63,
another(Riano, 137).
Sec.1; Riano, Vol. II, p. 149)
Civil Procedure
Vol. II, 2016, Pp.
136-137). Exception: Action for Quieting Title, a real
action whose jurisdiction depends on the
5.D.3. Dismissal assessed value of property.

A petition for interpleader may be dismissed on
the basis of the grounds provided for in Rule 16
and on the ground of impropriety of the
interpleader action (Rule 62, Section 4).
The filing of a motion to dismiss shall toll the
period to file answer within the remaining period,
but shall not be less than 5 days in any event,
reckoned from the notice of denial (Rule 62,
Section 4).
5.E.DECLARATORY RELIEF AND SIMILAR
REMEDIES (Rule 63)
Remedies Contemplated:
 Declaratory Relief; and
 Similar Remedies: (ROQ)
 Q. Should all cases filed under Rule 63,
Section 1 be filed before the RTC?
A.The first paragraph refers to an action for
declaratory relief, which may be brought
before the RTC. The second paragraph,
however, refers to a different set of remedies,
which includes an action to quiet title to real
property. The second paragraph must be
read in relation to R.A. No. 7691, which vests
the MTC with jurisdiction over real actions,
where the assessed value of the real property
involved does not exceed P50,000.00 in
Metro Manila and P20,000.00 in all other
places (Malana v. Tappa, G.R. No. 181303,
September 17, 2009).
Purpose of Declaratory Relief: To determine
any question of construction or validity arising

226 Center for Legal Education and Research


from subject action issue, and to seek for a
declaration of petitioner‘s right thereunder
remedy (Sec.1, Rule 63; Riano, Vol. II, p. 142)
 Q. Must an action for declaratory relief be
filed before a breach of the instrument
involved?
A. Yes. An action for declaratory relief
presupposes that there has been no actual
breach of the instruments involved or of
rights arising thereunder. Since the purpose
of an action for declaratory relief is to secure
an authoritative statement of the rights and
obligations of the parties under a statute,
deed, or contract for their guidance in the
enforcement thereof, or compliance
therewith, and not to settle issues arising
from an alleged breach thereof, it may be
entertained only before the breach or
violation of the statute, deed, or contract to
which it refers. Where the law or contract
has already been contravened prior to the
filing of an action for declaratory relief, the
courts can no longer assume jurisdiction over
the action. In other words, a court has no
more jurisdiction over an action for
declaratory relief if its subject has already
been infringed or transgressed before the
institution of the action (Malana v. Tappa, G.R.
No. 181303, 17 September 2009).
5.E.1 Who may File Action
1. Any person interested under a deed, will,
contract or other written instrument; or
2. If it be a statute, executive order, regulation
or ordinance, the petitioner is one whose
rights are affected by the same (Rule 63, Sec
1).
3. All persons who have or claim any interest
which would be affected by the declaration
(Rule 63, Sec. 2).
Note: The rights of persons not made parties to
the action do not stand to be prejudiced by the
declaration (Rule 63, Sec. 2).
5.E.2 Requisites of an Action forDeclaratory
Relief (SANDRA)
Purple Notes
Remedial Law
1. Subject matter is a deed, will, contract or
other written instrument, statute, executive
order or regulation, or ordinance;
2. There must be an Actual justiciable
controversy or the ―ripening seeds‖ of one
between persons whose interests are adverse;
3. There must have been No breach of the
documents in question;
4. Terms of and validity of the said documents
are Doubtful and require judicial construction;
5. The issue must be Ripe for judicial
determination; and
6. Adequate relief is not available through other
means or other forms of action or
proceeding(Almeda vs. Bathala Marketing
Industries, Inc. G.R. No. 150806, January 28,
2008).
The subject matter in a petition for
declaratory relief is any of the following:
(DeW-CoS-EO2)
a) Deed;
b) Will;
c) Contract or otherwritten instrument;
d) Statute;
e) Executive order or regulation;
f) Ordinance; or
g) Any Other governmental regulation (Rule 63,
Sec. 1)
 Q. Is the enumeration of subject matter
exclusive?
A. Yes.The enumeration of the subject matter
is exclusive. Any other matter not mentioned
therein is deemed excluded. This is under the
principle of
expressiouniusestexclussioalterius(Reyes v.
Ortiz, G.R. No. 137794, August 11, 2010).
5.E.3 When Court May Refuse to Make
Judicial Declaration
a) The decision will not terminate the
controversy or uncertainty giving rise to the
action; or,
b) The declaration is not necessary and proper
under the circumstances (Rule 63, Sec. 5).
Bar Operations C ommissions 227
 Purple Notes
Remedial Law
Note: In declaratory relief, the court is given the Additional ground for
discretion to act or not on the petition. On the dismissal:
other hand, the court does not have the Rule 63, Sec. 5 - By
discretion to refuse to act with respect to actions motion or motu proprio,
court may refuse to
described as similar remedies. Thus, in an action
declare rights and
for reformation of an instrument, to quiet title or Grounds and manner of construe instruments if
to consolidate ownership, the court cannot refuse dismissal are governed the decision would not
to render a judgment (Rule 63, Sec.5). by Rules 16 and 17. terminate the
uncertainty or
Declaratory Relief is not available in: controversy which gave
rise to the action; or if it
 Declaration of Citizenship and Registration is not necessary and
Certificate – unilateral in nature and without proper under the
circumstances.
conflicting adverse interest.
 Court Decisions – There are other existing
The concept of a cause of action as ―an act or
remedies in connection therewith, such as an
omission by which a person violates the rights of
appeal or motion for clarificatory judgment.
another‖ under ordinary civil action does not
 Where a law or contract has already been
apply in declaratory relief; there must be no
contravened prior to the filing of an action for
breach or violation of the instrument or statute
declaratory relief, the court can no longer
involved.
assume jurisdiction over the action
(Tambunting Jr. vs. Sumabat, G.R. No. 144101, A third-party complaint is improper when the
September 16, 2005). main case is a special civil action for declaratory
relief (Commissioner of Customs v. Cloribel, G.R. No.
5.E.4 Conversion into Ordinary Action L-21036 June 30, 1977).

If before the final termination of the case, a
breach or violation of the documents would take
place, the action for declaratory relief may
thereupon be converted into an ordinary civil
action, and the parties shall be allowed to file
such pleadings as maybe necessary or proper
(Rule 63, Sec. 6).
Ordinary Action vs. Declaratory Relief
There is nothing in the nature of a special civil
action for declaratory relief that proscribes the
filing of a counterclaim based on the same
transaction, deed or contract subject of the
complaint (PDIC v. CA, G.R. No. 126911 April
30, 2003).
5.E.5. Proceedings Considered as Similar
Remedies

ORDINARY ACTION DECLARATORY a. Action for Reformation of an instrument

RELIEF recognized under Articles 1359 to 1369 of the
Writ of execution is No writ of Civil Code;
available(Riano, Civil execution(Riano, Civil b. Action to Quiet title governed by Art. 476 to
Procedure Vol. II, 2016, Procedure Vol. II, 2016, 481 of the Civil Code; and
P..158). P. 158). c. Action to consolidate Ownership under Article
There is breach or No breach or violation of 1607 of the Civil Code[Rule 62, Section 1(par
violation of right(Riano, right(Riano, Civil 2)].
Civil Procedure Vol. II, Procedure Vol. II, 2016,
2016, P..160). P..160).
5.E.5a. Reformation of an Instrument

When there having meeting of the mind of the

parties to a contract,theirtrue intention is not
expressed in the instrument purporting to
embody the agreement, by reason of mistake,
fraud, inequitable conduct or accident one of the

228 Center for Legal Education and Research


parties may ask for the reformation of the
instrument to the end that such true intention
may be expressed (Art. 1359, Civil Code).
If mistake, fraud, inequitable conduct or accident
has prevented the meeting of the minds, the
proper remedy is not reformation but annulment
of the contract (Art. 1359, Civil Code).
Reformation of Instrument, when proper
Failure of the instrument to disclose their
agreement due to:
a. Mutual mistake of the parties (Art. 1361, Civil
Code);
b. One party is mistaken and the other acted
fraudulently or inequitably, the former may
ask for reformation (Art. 1362, Civil Code);
c. Ignorance, lack of skill, negligence or bad
faith of the person drafting the instrument
(Art. 1364, Civil Code); and
d. Parties agree upon mortgage or pledge of property
but instrument but instrument states the
instrument states that the property is sold
absolutely or with a right of repurchase(Art.
1365, Civil Code).
Requisites for Reformation of an
Instrument (MT-mafi)
1. there must have been a Meeting of the minds
of the parties to the contract;
2. the instrument does not express the True
intention of the parties; and,
3. the failure of the instrument to express the
true intention of the parties is due to Mistake,
Fraud,Inequitable conduct or Accident (Emilio
vs. Rapal, G.R. No. 181855, March 30, 2010).
Reformation of the instrument is NOT
proper in any of the following:
a. Simple donation intervivos wherein no
condition is imposed;
b. Wills;
c. When the real agreement is void (Art. 1366,
Civil Code);
d. Party asking for reformation has brought an action
to enforce the instrument (Art. 1367, Civil Code).
Purple Notes
Remedial Law
If anAction for Reformation of Instrument
pertains to issue other than recovery of money, it
is incapable of pecuniary estimation (Riano, Vol. II,
p. 152).
5.E.5b. Consolidation of Ownership
The concept of consolidation of ownership under
Art. 1607 of Civil Code, has its origin in the
substantive provisions of the law on sales. Under
the law, a contract of sale may be extinguished
eifher by legal redemption(Art. 1619, Civil Code)or
conventional redemption (Art. 1601, Civil Code).
Modes of Extinguishment
1. Legal redemption (Retracto legal) - a
statutory mandated redemption of a property
previously sold.
For instance, a co-owner of a property may
exercise the right of redemption in case the
shares of all the other co-owners or any of
them are sold to a third person (Art. 1620, Civil
Code).The owners of adjoining lands shall have
the right of redemption when a piece of rural
land with a size of one hectare or less is
alienated (Art. 1621, Civil Code).
2. Conventional redemption (Pacto de
retro)- one that is not mandated by the
statute but which takes place because of the
stipulation of the parties to the sale(Riano,
Civpro Vol. II, 2016 ed., p. 169).
Period of redemption
a. May be fixed by the parties in which case the
period cannot exceed ten (10) years from the
date of the contract.
b. In the absence of any agreement, the
redemption period shall be four (4) years from
the date of the contract (Art. 1606, Civil Code).
Redemption not made within agreed period
and where subject matter is a real property
Art. 1607 of the Civil Code provides that the
consolidation of ownership in the vendee shall
not be recorded in the Registry of Property
without a judicial order, after the vendor has
been duly heard.
Bar Operations C ommissions 229
 Purple Notes
Remedial Law
 Q: What is the action for consolidation of
ownership for?
A: The action brought to consolidate
ownership is not for the purpose of
consolidating the ownership of the property
in the person of the vendee or buyer but for
the registration of the property. The lapse of
the redemption period without the seller a
retro exercising his right of redemption
consolidates ownership or title upon the
person of the vendee by operation of law.
Art. 1607 requires the filing of the petition to
consolidate ownership because the law
precludes the registration of the consolidated
title without judicial order (Cruz vs. Leis, G.R.
No. 125233, March 09, 2000).
In an Action for Consolidation of Ownership,
assessed value shall not be considered because it
does not involve recovery of title to, or ownership
of real property. The action is brought merely to
obtain judicial order to effect registration and not
aquire ownership thereof. It is NOT a real action
(Riano, Vol. II, p. 152).
5.E.5c. Quieting of Title to Real Property
It is an action brought to remove a cloud on title
to real property or any interest therein. It is
characterized as a proceeding quasi in rem and
judgment on such proceedings is conclusive only
between the parties (Riano, Vol.II, p. 173).
The action contemplates a situation where an
instrument or a record is apparently valid or
effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may
be prejudicial to said title to real property. This
action is then brought to remove a cloud on title
to real property or any interest therein. It may
also be brought as a preventive remedy to
prevent a cloud from being cast upon title to real
property or any interest therein (Art. 476, Civil
Code).
The plaintiff need not be in possession of the real
property before he may bring the action as long
as he can show that he has a legal or an
equitable title to the property which is the subject
matter of the action (Art. 477, Civil Code).
230 Center for Legal Education and Research
Requisites for Quieting of Title:
1. Plaintiff or complainant has a legal or
equitable title or interest in the real property
subject of action; and,
2. The deed, claim, encumbrance, or proceeding
deemed casting cloud on his ttile must be
shown to be, in fact, invalid, or inoperative
despite prima facie appearance of validity or
legal efficacy (Riano, Vol. II, pp. 172-173).
Jurisdictionfor Quieting of Title, an
Exception to the General Rule
When, instead of filing a petition for declaratory
relief, one files an action for quieting of title,
jurisdiction is determined based on the assessed
value of the real property (Riano, Civil Procedure
Vol II, 2016 Ed., P. 150 and B.P. 129, Sec. 33).
5.F. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
COMELEC AND COA (Rule 64 In Relation to Rule
65)
Application of Rule 65 under Rule 64
 Q: What is the basis of application of Rule
65 under Rule 64?
A:Sec. 7, Art. IX-A of the Constitution reads,
―unless otherwise provided by the
Constitution or by law, any decision, order or
ruling of each commission may be brought
to the Supreme Court on certiorari by the
aggrieved party within 30 days from receipt
of a copy thereof.‖ The provision was
interpreted by the Supreme Court to refer to
certiorari under Rule 65 and not appeal by
certiorari under Rule 45. To implement the
above constitutional provision, the SC
promulgated Rule 64(Aratuc vs. COMELEC,
G.R. Nos. L-49705-09, February 08, 1979).
Rule 64 governs the review of judgments and
final orders (not interlocutory orders) or
resolutions of the COMELEC or COA (Sec.1, Rule
64; Riano, Vol. II, p. 175).
Parties under Rule 64
 Petitioner - Aggrieved party
 Purple Notes
Remedial Law
 Respondents - Commission concerned -ation (MR) new trial, if new trial, if
(COMELEC or COA) and the person or or New allowed, allowed,
persons interested in sustaining the Trial (MNT) interrupts the interrupts the
judgment, final order or resolution a quo period for the period for the
(Rule 64, Sec. 5). filing of the filing of the
petition for petition for
certiorari. certiorari.
Effect of Filing
Fresh Period Fresh Period
The filing of a a petition for certiorari shall not Rule does NOT Rule applies.
stay the execution of the judgment or final order apply. If the MR The petition may
or resolution sought to be reviewed,unless the or MNT is be filed within
Supreme Court shall direct otherwise upon such denied, the 60 days from
terms as it may deem just (Sec. 8, Rule 64). aggrieved party notice of the
may file the denial of the MR
Note:The petitioner may avail the remedy under petition within or MNT.
the remaining
Sec. 7 of Rule 65 by obtaining a temporary
period, but
restraining order or a writ of preliminary which shall not
injunction in order to stay the execution of the be less than 5
judgment (Riano, Civil Procedure Vol. II,2016 ed., P. days reckoned
180). from the notice
of denial (Sec. 3,
5.F.1. Distinctions in the application of Rule Rule 64).
65 to judgments of theCommission on
Jurisdiction Supreme Court May befiled with
Elections and Commission on Audit and
by Certiorari Regional Trial
theapplication of Rule 65 to other tribunals, under Rule 65 Court,CA, SC,
persons and officers (Rule 64, Sec. Sandiganbayan
2). or Comelec
RULE 64 RULE 65 (Rule 65, Sec.
2).
Application Directed only to Directed to any
the judgments, tribunal, board
final orders or or officers 5.G. CERTIORARI, PROHIBITION AND
resolutions (JFR) exercising MANDAMUS
of the COMELEC judicial or quasi-
and COA (Sec. 1, judicial
Petitions for certiorari, prohibition and mandamus
Rule 64). functions.
are not available under the Rules on Summary
Directed against Procedure (Sec. 19, Rule on Summary Procedure), in
an interlocutory a petition for Writ of Amparo (Sec. 11, Rule on the
order or final Writ of Amparo) and in a petition for a writ of
order/judgment. habeas data (Sec. 13, Rule on the Writ of Habeas
Data).

5.G.1. Definitions and Distinctions

Period of Within 30 days Within 60 days
Filing from notice of from notice of Certiorari
the judgment. the judgment.
(Rule 64, Sec.
3).  Q: What is Certiorari?

Effect of The filing of a The filing of a A: Certiorari is a writ issued by a superior

Filing a motion for motion for court to an inferior court, board, or tribunal
Motion for reconsideration reconsideration or office exercising judicial or quasijudicial
Reconsider or a motion for or a motion for functions whereby the record of a particular

Bar Operations C ommissions 231

 Purple Notes
Remedial Law
case is ordered to be elevated for review
and correction in matters of law. (Meralco
Securities Ind. Corp. v. Central Board of
Assessment Appeals, L-46245, May 31, 1982; San
Miguel Bukid Homeowners Assns., Inc. v. The City
of Mandaluyong, et al., G.R. No. 153653, October
2, 2009).
A petition for certiorari under Rule 65 is a special
civil action. It is not a mode of appeal. It is an
original action independent from the principal
action which resulted in the rendition of the
judgment or order complained of.
 Q: Is the issuance of writ of certiorari a
matter of right?
A: Writ of Certiorari is a prerogative writ,
never demandable as a matter of right,
never issued except in the exercise of
jurisdiction (Nuque v. Aquino, G.R. No. 193058,
July 8, 2015).
Purpose of Certiorari
 To correct errors of jurisdiction, which
includes commission of grave abuse of
discretion amounting to lack of jurisdiction
(Riano, Vol. II, p. 183).
 To annul or modify the judgment, resolution
or proceeding of public respondent(Rule 65,
Sec. 1).
Prohibition is a legal remedy, provided by
common law, available only when the usual and
ordinary proceedings at law or in equity are
inadequate to afford redress, prerogative in
character to the extent that it is not always
demandable as a right, to prevent courts or other
tribunals, officers or persons, from usurping or
exercising a jurisdiction with which they have not
been vested by law.
It is an original and independent action and not
merely continuation or part of trial resulting in
redition of judgment or order complained therof.
Since it is an original action, decisions rendered
therefor are appealable (Riano, Vol. II, p. 242)
Prohibition may issue enjoining the judge of court
of improper venue from taking cognizance of the
case (Noche, Civil Procedure Annotated, Volume 2, p.
482, 2001 ed.)
232 Center for Legal Education and Research
Purpose of Prohibition: To command the
respondent to desist from further proceeding
(Rule 65, Sec. 2)
Mandamus
 Q: What is Mandamus?
A:Mandamus is a command issuing from a
court of law of competent jurisdiction, in the
name of the state or sovereign, directed to
some inferior court, tribunal, or board, or
some corporation or person, requiring the
performance of a particular duty therein
specified, which duty results from the official
station of the party to whom the writ is
directed or from operation of law(KiaoEng v.
Lee, G.R. No. 176831,January 15, 2010).
 Q: What is the purpose of Mandamus?
A: To compel the performance, when refused,
of a ministerial duty. It does not require
anyone to fulfill a contractual obligation or to
compel a course of conduct, nor to control or
review the exercise of discretion (Manalo v.
PAIC Savings Bank, G.R. No. 146531. March 18,
2005).
Instances where there is no appeal
1) Law does not provide for an appeal:
a) Not appealable
b) No provision for an appeal (e.g., Labor
Code)
c) Interlocutory order
2) The right to appeal having been lost with or
without the appellant‘s negligence(Riano, Civil
Procedure Vol. II, 2016, P. 190).
5.G.2. Requisites; (Rule 65)
Requisites for CERTIORARI (JAJ)
1. Directed against any tribunal, board or officer
exercising Judicial or quasi-judicial functions;
2. Respondents acted without or in excess of its
Jurisdiction or acted with grave abuse of
discretion amounting to lack or excess of
jurisdiction; and

3. There must be no Appeal or other plain,
speedy and adequate remedy(Rule 65, Sec.1).
Requisites for PROHIBITION (JMAJ)
1. The petition is directed against a tribunal,
corporation, board or person exercising
Judicial, quasi-judicial, or Ministerial
functions;
2. The tribunal, corporation, board or person
must have acted without or in excess of
Jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction;
and
3. There is no Appeal or any plain, speedy and
adequate remedy in the ordinary course of
law (Rule 65, Sec.2).
Requisites for MANDAMUS (RMMAN)
1. There must be a clear legal Right to the act
demanded;
2. It must be the duty of the defendant to
perform the act because it is Mandated by
law;
3. The defendant must be exercising a
MINISTERIAL DUTY – a duty which is
absolute and imperative and involves merely
its execution;
4. The defendant unlawfully Neglects the
performance of the duty enjoined by law; and,
5. No Appeal or other plain, speedy and
adequate remedy in the ordinary course of
law (Rule 65, Sec.3).
5.G.3. When petition for Certiorari,
Prohibition and Mandamus Proper
Certiorari is applicable only when what is
sought to be resolved is an error of jurisdiction
and not an error of judgment.
 Q: May certiotari lie against errors of
procedure or mistake in findings or
conclusions of the court?
A: The special civil action for certiorari lies
only to correct acts rendered without
jurisdiction, in excess of jurisdiction, or with
grave abuse of discretion. Certiorari will issue
only to correct errors of jurisdiction, not
Purple Notes
Remedial Law
errors of procedure or mistakes in the
findings or conclusions of the lower court.
(Reyes vs. Sandiganbayan, G.R. nos. 203707-98,
June 27, 2018)
 Q: May a writ of certiorari lie against an
order granting an execution pending appeal?
A: Yes. Certiorari may lie against an order
granting execution pending appeal when the
same is founded. The fact that the losing
party had also appealed from the judgment
does not bar the certiorari proceedings, as
the appeal could not be an adequate remedy
from such premature condition (Manocop, et
al. vs. Equitable PCIB, et al., G.R. No. 162814-17,
August 25, 2005).
 Q: May a petition for certiorari be filed
against an error of judgment?
A: No. Where the error is not one of
jurisdiction, but of law or fact which is a
mistake of judgment, the proper remedy
should be appeal. Hence, if there was no
question of jurisdiction involved in the
decision and what was being questioned was
merely the findings in the decision of
whether or not the practice of the other party
constitutes a violation of the agreement, the
matter is a proper subject of appeal and not
certiorari (Centro Escolar University Faculty and
Allied Workers Union vs. CA, G.R. No. 165486,
May 31, 2006).
Prohibition is proper when the petitioner seeks
to command a tribunal, corporation, board or
person, whether exercising judicial, quasi-judicial
or ministerial functions to desist from further
proceedings, when said proceedings are without
or in excess of its jurisdiction or with grave abuse
of discretion, there being no appeal or any other
plain, speedy and adequate remedy in the
ordinary course of law.(Sec.2, Rule 65)
Mandamus is proper when a party is seeking to
compel a tribunal to perform a positive duty
imposed by law.
For mandamus to lie, the act sought to be
enjoined must be a ministerial act or duty(Riano,
Civil Procedure Vol. II, 2016, P. 246).
Bar Operations C ommissions 233
 Purple Notes
Remedial Law
A: Yes,because as long as the respondent
Mandamus not resorted to compel one to acted with jurisdiction, any error committed
perform a Discretionary Duty by him or it in the exercise thereof will
amount to nothing more than an error of
General Rule: Mandamus applies only to judgment which may be reviewed or
compel one to perform a ministerial duty. corrected by appeal (Microsoft vs. Best Deal,
G.R. No. 148029, September 24, 2002).
Exception:Mandamus is available to compel the
performance of a discretionary act, when refused, 5.G.4 Injunctive Relief
but not to direct the exercise of judgment or
discretion in a particular way or the retraction or The court in which the petition is filed may issue
reversal of an action already taken in the exercise orders expediting the proceedings, and it may
of either(Jacinto Olan, et al. v. CA, et al., supra.; also grant a temporary restraining order or a writ
Ongsuco v. Hon. Malones, G.R. No. 182065, October of preliminary injunction for the preservation of
27, 2009). the rights of the parties pending such
proceedings. The petition shall not interrupt the
 Q: Are contractual obligations compellable by course of the principal case unless a temporary
mandamus? restraining order or a writ of preliminary
injunction has been issued against the public
A: No.Mandamus is not intended to aid a respondent from further proceeding in the case
plaintiff in the performance of a mere (Rule 65, Sec. 7).
contract right, or to take place of other
remedies provided by law for the adjudication The public respondent shall proceed with the
of disputed claims (Manalo vs. PAIC Savings principal case within ten (10) days from the filing
Bank, G.R. No. 146531, March 18, 2005; Riano, of a petition for certiorari with a higher court or
Vol. II, page 253). tribunal, absent a Temporary Restraining Order
(TRO) or a Writ of Preliminary Injunction, or
 Q: Is it necessary that the petitioner hold a upon its expiration. Failure of the public
legal right to the thing demanded? respondent to proceed with the principal case
may be a ground for an administrative charge
A: Yes.Petitioners should have a clear legal (A.M. 07-7-12-SC, December 12, 2007).
right to the thing demanded, and there
should be an imperative duty on the part of 5.G.5. Distinguish: Certiorari, Appeal by
respondents to perform the act sought to be Certiorari and Article VIII, Section 1 of the
mandated(Cudia vs. Superintendent of PMA, G.R. Constitution
no. 211362, February 24, 2015) Certiorari (Art.
Appeal by
Certiorari VIII, Sec. 1 of
Certiorari (Rule
General Rule: Mandamus will not be issued (Rule 65) the 1987
45)
when administrative remedies are available. Constitution)
A mode of appeal A petition A petition filed
against filed against against any
Exceptions:
ajudgment or any tribunal, branch or
final order or board or instrumentality
a. Party is in estoppels (Vda. de Tan vs. resolution of the officer of the
Veterans Backpay Commission, GR. No.L- Court of Appeals, exercising Government,
12944, March 30,1959); and the judicial or even if it does
b. Pure questions of law are raised(Madrigal vs. Sandiganbayan, quasi-judicial not exercise
Lecaroz, G.R. No. L-46218, October 23, the Regional Trial functions. judicial, quasi-
1990) Court or other judicial or
courts whenever ministerial
authorized by functions(Kilusa
 Q: Must a petition for certiorari be based on
law. ng Mayo Uno vs.
jurisdictional grounds? Aquino, G.R. No.

234 Center for Legal Education and Research

 Purple Notes
Remedial Law
210500, April 2, from notice of denial of
2019).. said motion.
Raises pure Raises May raise Extension of 30 days may Extension no longer
questions of law. questions of constitutional be granted for justifiable allowed.
jurisdiction issues and to reasons.
review and/or Does not require a prior Motion for
prohibit or motion for reconsideration. Reconsideration is a
nullify the acts condition precedent,
of legislative subject to exceptions.
and executive Stays the judgment Does not stay the
officials(Kilusang appealed from. judgment or order
Mayo Uno vs. subject of the petition
Aquino, G.R. No. unless enjoined or
210500, April 2, restrained.
2019). Parties are the original The tribunal, board, or
Certiorari vs. Appeal by Certiorari(Riano, Civil parties with the appealing officer exercising judicial
Procedure Vol. II, 2016, pp. 191-193) party as the petitioner and or quasi-judicial functions
the adverse party as the is impleaded as
CERTIORARI AS A respondent without respondent.
CERTIORARI AS A MODE
SPECIAL CIVIL ACTION impleading the lower court
OF APPEAL (Rule 45)
(Rule 65) or its judge.
It is called petition for A special civil action that Filed only with the May be filed with the
review on certiorari. It is is an original action and Supreme Court. Supreme Court, Court of
a mode of appeal, which is not a mode of appeal. It Appeals, Sandiganbayan,
but a continuation of the is not a part of the or Regional Trial Court.
appellate process over the appellate process but an SC may deny the decision
original case. independent action. motu propio on the ground
Seeks to review final May be directed against that the appeal is without
judgments or final orders. an interlocutory order of merit, or is prosecuted
the court or where there manifestly for delay, or that
is no appeal or plain or the questions raised therein
speedy remedy available are too unsubstantial to
in the ordinary course of require consideration.
law.
Raises only questions of Raises questions of
law. jurisdiction because a 5.G.6. Distinguish: Prohibition, Mandamus
tribunal, board or officer and Injunction
exercising judicial or
quasi-judicial functions PROHIBITIO MANDAMUS INJUNCTIO
has acted without N N
jurisdiction or in excess Prohibition is Mandamus Main action
of jurisdiction or with an is an for injunction
grave abuse of discretion extraordinary extraordinar seeks to
amounting to lack of
writ y writ enjoin the
jurisdiction.
commanding commandin defendant
Filed within 15 days from Filed not later than 60
notice of judgment or final days from notice of a tribunal, g a tribunal, from the
order appealed from, or of judgment, order or corporation, corporation, commission
the denial of petitioner‘s resolution sought to be board or board or or
motion for reconsideration assailed. person, person, to continuance
or new trial. whether do an act of a specific
In case a motion for exercising required to act, or to
reconsideration or new judicial, be done: compel a
trial is timely filed,
quasi-judicial (a) particular act
whether such motion is
or ministerial When he in violation of
required or not, the 60-
day period is counted from further unlawfully the rights of

Bar Operations C ommissions 235

 Purple Notes
Remedial Law
proceedings neglects the the applicant. or legal
when said performance Preliminary functions;
proceedings of an act injunction is Always the Always the main May be the
are without or which the a provisional main action action main action
or just a
in excess of law remedy to
provisional
its specifically preserve the remedy
jurisdiction, or enjoins as a status quo May be May be brought May be
with grave duty, and and prevent brought in the in the Supreme brought
abuse of its there is no future Supreme Court, Court of in the
discretion, other plain, wrongs in Court, Court Appeals, Regional
there being speedy and order to of Appeals, Sandiganbayan, Trial
no appeal or adequate preserve and Sandiganbaya or in the Court
any other remedy in protect n, or in the Regional Trial which has
Regional Trial Court which has jurisdictio
plain, speedy the ordinary certain
Court which jurisdiction over n over
and adequate course of interests or has the territorial the
remedy in the law; or rights during jurisdiction area where territorial
ordinary the pendency over the respondentresid area
course of law of an action. territorial area es. where
(Sec. 2, Rule where responde
65). respondent nt
resides. resides.
(b) When
one unlawfully
excludes another An original action for certiorari, prohibition
from the use and mandamus is an independent civil
and enjoyment action and as such, it:
of a right or
office to which  Does not interrupt the course of the principal
the other is action;
entitled (Sec. 3,  Does not affect the running of the period of
Rule 65).
the reglementary periods involved in the
proceedings;
Special civil Special civil Ordinary civil
 Does not stay the execution of the judgment,
action action action
To prevent an To compel the For the unless a temporary restraining order or writ
encroachment performance of defendant of preliminary injunction has been issued
, excess, a ministerial and either to (Diaz vs. Diaz, G.R. No. 135885, April 28, 2000).
usurpation or legal duty; May refrain from
assumption of be directed an act or to Grave abuse of discretion
jurisdiction; against judicial perform not
May be and non-judicial necessarily a It exists when the act was performed in
directed entities legal and capricious or whimsical exercise of judgment
against ministerial which is equivalent to lack of jurisdiction.
entities duty;
exercising Directed
judicial or against a The abuse of discretion must be so patent and
quasi-judicial, party gross as to amount to an evasion of positive duty
or ministerial or to a virtual refusal to perform a duty enjoined
functions or to act at all in contemplation of law, as where
Extends to Extends only to Does not the power is exercised in an arbitrary and
discretionary ministerial necessarily despotic manner by reason of passion or personal
functions functions extend to hostility(Milwaukee Industries Corp. vs. CTA, G.R. No.
ministerial, 173815, November 24, 2010).
discretionary

236 Center for Legal Education and Research


Award of Damages InMandamusProceeding
Court of Appeals, can award damages in
Mandamus Proceedings (Vital-Gozon vs. CA, G.R.
No. 101428, August 05, 1992)
Purple Notes
Remedial Law
petition for certiorari, prohibition and mandamus
before invoking the jurisdiction of higher courts.
5.G.8. Exceptions to filing of motion for
reconsideration before filing of petition:

A writ of certiorari cannot be issued by an RTC Motion for Reconsideration is not required before
against administrative agency exercising quasi- filing a petition:
judicial functions since the latter is of the same
rank as the RTC.  Where the order is a patent nullity, as where
the court a quo has no jurisdiction;
A writ of prohibition may be issued by the RTC  When the questions raised in the certiorari
against administrative agencies only when what proceeding, have been duly raised and passed
is sought to be prohibited is a ministerial function by the lower court, or are the same as those
but not quasi-judicial function. raised and passed upon in the lower court;
 Where there is an urgent necessity for the
Sandiganbayan may likewise issue writs of resolution of the question and any further
certiorari, prohibition and mandamus only in aid delay would prejudice the interests of the
of its appellate jurisdiction. government or of the petitioner;
 Where the subject matter of the action is
―In Aid of its Appellate Jurisdiction‖ – there perishable;
exists a right to appeal the judgment on the  Where under the circumstances, a motion for
merits. reconsideration would be useless;
5.G.7. When and Where to File Petition  Where petitioner was deprived of due process
and there is extreme urgency for relief;
Petition must be filed within 60 days from  Where in a criminal case, relief from order of
notice of judgment, order or resolution (Sec. 4, arrest is urgent and the granting of such relief
Rule 65). by the trial court is improbable;
 Where the proceedings in the lower court are
Subject of Petition Court a nullity for lack of due process;
Acts or omissions of  Court of Appeals,
 Where the proceedings was ex parte or in
MTC, corporation, whether or not the
board, officer or person same is in aid of its
which the petitioner had no opportunity to
appellate jurisdiction; object; and
 Sandiganbayan,  Where the issue raised is one purely of law or
whether or not in aid where public interest is involved(Riano, Civil
of its appellate Procedure Vol. II, 2016 ed., pp. 212-213).
jurisdiction;
 RTC Effect of Filing of Motion for
Acts or omissions of Gen. Rule: CA Reconsideration
quasi-judicial agency
EXN: Unless otherwise
If a motion for reconsideration is filed, the period
provided by law or the
rules shall not only be interrupted but another 60 days
Election case involving Exclusively COMELEC, in shall be given to the petitioner within which to
an act or omission of aid of its appellate file the appropriate petition for certiorari or
MTC/RTC jurisdiction (A.M. No. prohibition with the superior court (Supreme Court
07-7-12-SC, December Administrative Circular 02-03).
12, 2007)
No plain, speedy and adequate remedy  Q: Are the remedies of appeal and certiorari
mutually exclusive?
General Rule: A Motion for Reconsideration is
an essential precondition for the filing of a A: Yes, the remedies of appeal and certiorari
are mutually exclusive and not alternative

Bar Operations C ommissions 237

 Purple Notes
Remedial Law
or successive. The antithetic character of The petition shall be filed with the Commission
appeal and certiorari has been generally on Elections, in aid of its appellate jurisdiction.
recognized and observed save only on those (Sec 4, Rule 65 of A.M. no 07-7-12-SC)
rare instances when appeal is satisfactorily
shown to be an inadequate remedy. Thus, a 5.G.11. Where to file petition
petitioner must show valid reasons why the
issues raised in his petition for certiorari could Subject of Petition Court
not have been raised on appeal (Banco Filipino Acts or omissions of  Court of Appeals,
Savings and Mortgage Bank vs. CA, G.R. No. MTC, corporation, whether or not the
132703, June 23, 2000). board, officer or person same is in aid of its
appellate jurisdiction;
 Sandiganbayan,
Material Date Rule
whether or not in aid
of its appellate
Dates that must be contained in the jurisdiction;
petition:  RTC
Acts or omissions of Gen. Rule: CA
 Date of receipt of the copy of the assailed quasi-judicial agency
decision, order or resolution; EXN: Unless otherwise
 Date when Motion for Reconsideration or provided by law or the
Motion for New Trial was filed; and, rules
 Date of receipt of the denial of said Election case involving Exclusively COMELEC, in
an act or omission of aid of its appellate
Motion(Sec. 3, Rule 46).
MTC/RTC jurisdiction (A.M. No.
07-7-12-SC, December
―Adequate Remedy‖ – a remedy which is 12, 2007)
equally beneficial, speedy and sufficient, not
merely a remedy which at some time in the 5.G.12. Effects of filing of unmeritorious
future will bring about a revival of judgment of petition
the lower court complained of in the Certiorari
proceeding, but a remedy which will promptly The Court may impose motu propio, based on res
relieve the petitioner from the injurious effects of ipsa loquitur, other disciplinary sanctions or
that judgment and the acts of the inferior court measures on erring lawyers for patently dilatory
or tribunal (Pioneer Insurance Surety Corp. vs. and unmeritorious petition for certiorari (A.M. No.
Hontanosas, G.R. No. L-35951, August 31, 1977). 07-7-12-SC, December 12, 2007).

5.G.9. Reliefs petitioner is entitled to:
The primary relief will be annulment or
modification of the judgment, order or resolution
or proceeding subject of the petition. It may also
include such other incidental reliefs as law and
justice may require (Rule 65, Sec. 1). The court, in
its judgment, may also award damages and the
execution of the award for damages or costs shall
follow the procedure in Sec. 1, Rule 39 (Rule 65,
Sec. 9).
5.G.10. Acts or omissions of first-
level/Regional Trial Courts in Election
Cases
The court may dismiss the petition if it finds the
same patently without merit or
prosecutedmanifestly for delay, or if the
questions raised therein are too unsubstantial to
require consideration (Rule 65, Sec. 8).
In such event, the court may award in favor of
the respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules
139 and 139-B.
5.H. QUO WARRANTO (Rule 66)
Quo Warranto literally means ―by what
authority‖

 Q: What is a Quo Warranto?

238 Center for Legal Education and Research

 Purple Notes
Remedial Law
May be filed by any The petitioner must be
A: It is a proceeding or writ issued by the registered voter for the the government or the
court to determine the right to use an office, same office and who, person entitled to the
position or franchise and to oust the person even if the petition office and who would
prospers, would not be assume the same if his
holding or exercising such office, position, or
entitled to that office. action succeeds (Rule
franchise if his right is unfounded or if a (Omnibus Election Code, 66, Sec. 1&5).
person performed acts considered as grounds Sec. 253)
for forfeiture of said exercise of position, Actual or compensatory Person adjudged
office or franchise (Tecson vs. COMELEC, G.R. damages are recoverable entitled to the office
No. 161434, March 03, 2004). in quo warranto under may also bring an
the Omnibus Election action (separate)
Note:Quo Warranto is an action for the Code.(Omnibus Election against the respondent
usurpation of a public (a) office, (b) position, or Code, Sec. 259) to recover
(c) franchise (Sec.1, Rule 66; Riano, Vol. II, p. 269). damages.(Rule 66,
Sec. 10).
5.H.1. Distinguish: Quo Warranto under the Petition is brought in the Petition is brought in
COMELEC, RTC or MTC, the SC, CA or RTC
Rules of Court and Quo Warranto under the
as the case may be (Rule 66, Sec. 7).
Omnibus Election Code (Omnibus Election Code,
Sec. 253)
Quo Warranto in Quo Warranto(Rule If the person elected is The court determines
Electoral Proceedings 66) ineligible, the court who is legally
To contest the right of Prerogative writ which cannot declare the appointed, and can
an elected public officer can be brought by the candidate occupying the and ought to declare
to hold public office. Solicitor General or any second place as elected. the person entitled to
person who claims occupy the office(Rule
It is an electoral better title to the 66, Sec. 9).
proceeding under the position, public office Subject of the Petition: Subject of the Petition:
Omnibus Elections Code or franchise being An Elective Office An Appointive Office
for the exclusive purpose usurped, intruded into Petitioner may be any Petitioner may be the
of impugning the election or unlawfully held. voter even if he is not person entitled to the
of a public officer. entitled to the office office (Rule 66, Sec. 5)
Issue is the legality of (Omnibus Election Code,
the occupancy of the Sec. 253).
office by virtue of a
legal appointment.
When the tribunal The court has to
Grounds: Grounds: declares the candidate- declare who the
a. ineligibility or a. Usurpation; elect as ineligible, he will person entitled to the
disqualification to b. Forfeiture; and, be unseated but the office is if he is the
hold the office; c. Illegal association person occupying the petitioner.
b. disloyalty to Republic (Rule 66, Sec.1) second place will not be (Rule 66, Sec. 9).
(Omnibus Election Code, declared as the one duly
Sec. 253) elected because the law
Petition must be filed Presupposes that the shall consider only the
within 10 days after the respondent is already person who, having duly
proclamation of the actually holding office filed his certificate of
candidate(Omnibus and action must be candidacy, received a
Election Code, Sec. 253). commenced within one plurality of votes.
year from cause of
ouster or right of
petitioner to hold office 5.H.2. When government commences an
arose(Rule 66, Sec. action against individuals or associations
11).
Who May Commence Action for Quo
Warranto:

Bar Operations C ommissions 239

 Purple Notes
Remedial Law
a. Solicitor Generalor
b. Public prosecutor;(Rule 66, Sec. 2&3).
How is Action Commenced
By filing a verified petitionin the name of the
Republic of the Philippines(Rule 66, Sec. 1)
Against Whom May be Filed(Rule 66, Sec. 1)
An action for the usurpation of a public office,
position or franchise may be commenced by a
verified petition brought in the name of the
Republic of the Philippines against:
a. A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise;
b. A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for forfeiture of his office; and,
c. An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act.
Classification of quo warranto proceeding:
1) Mandatory – brought by the Solicitor
General or a public prosecutor, when:
a. Directed by the President;
b. Upon a complaint; or
c. He has good reason to believe that the
cases for quo warranto can be established
by proof(Rule 66, Sec. 2).
2) Discretionary - brought by the Solicitor
General or a public prosecutor at the request
or upon the relation of another person
provided there must be:
a. Leave of court;
b. At the request and upon the relation of
another person; and
c. Indemnity bond filed(Rule 66, Sec. 3).
Relator – a person at whose request and upon
whose relation the Solicitor General or public
prosecutor brings an action for quo warranto with
the permission of the court under Sections 3 and
4 of Rule 66.
240 Center for Legal Education and Research
5.H.3 When Individual may commence an
action
The petition may be commenced by a private
person in his own name where he claims to be
entitled to the public office or position alleged to
have been usurped or unlawfully held or
exercised by another (Rule 66, Sec. 5).
 Q: May a private person commence an action
without the intervention of a Solicitor
General? How?
A(1):Accordingly, the private person may
maintain the action without the intervention
of the Solicitor General and without need for
any leave of court (Navarro vs. Gimenez, G.R.
no. No. 45T6, February 27, 1908; Cui vs. Cui, G.R.
No. 39773, April 09, 1934).
(2).In bringing a petition for quo warranto,
he must show that he has a clear right to the
office allegedly being held by another (Cuevas
vs. Bacal, G.R. No. 139382, December 06, 2000).
It is not enough that he merely asserts the
right to be appointed to the office.
 Q: Is the one-year period interrupted by the
prosecution of any administrative remedy?
A:The one-year period is not interrupted by
the prosecution of any administrative remedy.
As in quo warranto proceeding, no one is
compelled to resort to administrative
remedies since public interest requires that
the right to public office should be
determined as speedily as possible (Palma-
Fernandez vs. Dela Paz, G.R. No. L-78946, April
15, 1988).
Period to Claim Damages
Within ONE year after the entry of the judgment
establishing the petitioner's right to the office in
question(Rule 66, Sec. 11).
5.H.4 Judgment in Quo Warranto Action
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising
a public office, position or franchise, judgment

shall be rendered that such respondent be ousted
and altogether excluded therefrom, and that the
petitioner or relator recover his costs.Such
further judgment may be rendered determining
the respective rights in and to the public office,
position or franchise of all the parties to the
action as justice requires(Rule 66, Sec. 9).
5.H.5 Rights of a Person Adjudged Entitled
to Public Office
If judgment is rendered in favor of the person
averred in the complaint to be entitled to the
public office, he may, after taking the oath of
office and executing any official bond required by
law:(BED)
1. Take upon himself the Execution of the office;
2. Immediately thereafter demand of the
respondent all the Books and papers in the
respondent's custody or control appertaining
to the office to which the judgment relates;
NOTE: If Respondent refuses or neglects to
deliver any book or paper pursuant to such
demand, he may be punished for contempt as
having disobeyed a lawful order of the court.
3. Bring action against the respondent to recover
the Damages sustained by reason of the
usurpation (Rule 66, Sec. 10).
Quo Warranto Against Corporations
 May only be brought against de facto
corporations
 Must be instituted by the Solicitor General and
not collaterally in a private suit where
corporation is a party
 Scope of inquiry:
a. due incorporation of any corporation
claiming in good faith to be incorporated
under the Corporation Code; and
b. its right to exercise corporate powers
(Revised Corporation Code, Sec.19; Riano, Civil
Procedure Vol. II, pp. 279-280)
5.H.6 Limitations
General Rule: A proceeding for the ouster of a
public officer or employee must be commenced
Purple Notes
Remedial Law
within 1 year after the right of the petitioner
arose or within 1 year after the cause for such
ouster arose (Rule 66, Sec. 11).
Exceptions:
1. The reason for petitioner‘s failure to comply
with the prescribed period to initiate an action
is due to the continued promise from the
Office of the President to comply with its
commitment (Cristobal vs. Melchor, G.R. no. L-
43203, June 29, 1977).
2. An action for quo warranto is imprescriptible if
brought by the state at its own
instance(Republic vs. Sereno, G.R. no. 237428,
June 19, 2018).
5.I. EXPROPRIATION(Rule 67)
Eminent Domain is the right of the State to
acquire private property for public use upon the
payment of just compensation.
Expropriation is the special civil action by which
the state or the sovereign exercises its right of
eminent domain.
In other words, eminent domain is the right while
expropriation is the judicial proceeding for
enforcing said right (Primer-Reviewer on Remedial
Law, Vol. I Civil Procedure, Riguera 2015 Ed., p. 666).
Nature of Expropriation Proceedings
 Q: Is an expropriation proceeding adversarial
in nature?
A: NO. Expropriation proceedings are not
adversarial in the conventional sense, for the
condemning authority is not required to
assert any conflicting interest in the property.
Thus, by filing the action, the condemnor, in
effect, merely serves notice that it is taking
title and possession of the property. On the
other hand, the defendant asserts title or
interest in the property, not to prove a right
to possession, but to prove a right to
compensation for the taking(Apo Fruits Corp. et
al., vs. CA, G.R. No. 164195, December 4, 2009).
Who has the power to expropriate:
Bar Operations C ommissions 241
 Purple Notes
Remedial Law
a. State, by its inherent power; and,
b. Government instrumentalities (i.e., GOCCs,
LGUs as delegated by the Local Government
Code and other agencies duly authorized by
law).
When expropriation proceedings when
dismissed; exception
 Q: Are expropriation proceedings
automatically dismissed when determined not
in public use absolute?
A: NO. The expropriation case is not
automatically dismissed when the property
ceases to be for public use. The state must
first file the appropriate Motion to Withdraw
before the trial court having jurisdiction over
the proceedings. The grant or denial of any
Motion to Withdraw in an expropriation
proceeding is always subject to judicial
discretion.
The rule, therefore, is that expropriation
proceedings must be dismissed when it is
determined that it is not for a public
purpose, except when:
1. Trial court‘s order already became final
and executory;
2. The government already took possession
of the property;
3. The expropriation case already caused
prejudice to the landowner.(National
Corporation vs. Posada, GR No. 191945,
March 11, 2015)
Requirements for filing the complaint:
It is commenced by the filing of verified
complaint which shall:
 State with certainty thee right of the plaintiff
to expropriation and the purpose thereof;
 Describe the real or personal property
sought to be expropriated; and
 Join as defendants all persons owning or
claiming to own, or occupying, any part of
the property or interest therein, showing, as
far as practicable, the interest of each
defendant. If the plaintiff cannot identify the
real owners with accuracy, averment to that
242 Center for Legal Education and Research
effect shall be made in the complaint (Sec. 1,
Rule 67).
Note: If a known owner is not joined as
defendant, he is entitled to intervene in the
proceedings(Republic vs. Mangotara, G.R. No.
170375, July 7, 2010).
If he is joined but not served with the process,
and the proceeding is already closed before he
came to know of the condemnation, he may
maintain an independent suit for damages.
Where to File Complaint
Complaint is filed in the RTC because the subject
of the suit — the State‘s exercise of eminent
domain — is a matter incapable of pecuniary
estimation (San Roque vs. Heirs of Pastor, G.R. No.
138896, June 20, 2000; Riano, Vol. II, p. 292).
Purpose of Expropriation Proceeding
To determine the authority of the government
entity, necessity of the expropriation, and
observance of the process(Brgy. San Roque vs.
Heirs of Pastor, G.R. No. 138896, June 20, 2000).
5.I.1. Matters to Allege in Complaint for
Expropriation
The right of eminent domain shall be exercised
by the filing of a verified complaint, alleging;
(DRJ)
a. The Right of the plaintiff to expropriation and
the purpose thereof, which must be stated
with certainty;
b. Description of the real or personal property
sought to be expropriated; and,
c. The complaint must Join as defendants all
persons owning or claiming to own, or
occupying, any part of the property or interest
therein, showing as far as practicable the
interest of each defendant. If the plaintiff
cannot, with accuracy, identify the real
owners, averment to that effect must be
made in the complaint (Rule 67, Sec. 1)
Note: The commencement of a complaint for
expropriation is necessary only when:
 the owner does not agree to sell his property;
or,

 the owner is willing to sell but does not agree
with the price offered(Riano, Civil Procedure Vol.
II, 2016 Ed., P. 291).
5.I.2. Two Stages in Every Action for
Expropriation
 First Stage: Determination of the authority
of the plaintiff to exercise the power of
eminent domain and the propriety of its
exercise in the context of the facts involved in
the suit. It ends with an order, if not of
dismissal of the action
 Second Stage: Determination by the Court
of ―the just compensation for property sought
to be taken‖ with assistance of not more than
three (3) commissioners(National Corporation
vs. Posada, GR No. 191945, March 11, 2015).
Purple Notes
Remedial Law
3. There is due notice to the defendant;
4. Immediate payment is made by the
implementing agency to the owner of the
property(R.A. No. 8974, Sec. 7).
Note: Amount to be paid shall be equivalent to
the sum of:
a) 100 percent of the value of the property
based on the current relevant zonal valuation
of the BIR; and,
b) the value of the improvements and/or
structures as determined under Sec. 7 of R.A.
No. 8974 (R.A. No. 8974, Sec. 7).
 Q: Does the R.A. no. 8974 supersede the
system of deposit under Rule 67?

5.I.3. When Plaintiff Can Immediately A: YES. R.A. No. 8974, which provides for a
Enter into Possession of the Real Property procedure eminently more favorable to the
property owner than Rule 67, inescapably
General Rule: Expropriator shall have the right applies in instances when the national
to take or enter upon the possession of the real government expropriates property ―for
property involved if he deposits with the national government infrastructure projects.‖
authorized government depositary an amount Thus, if expropriation is engaged in by the
equivalent to the assessed value of the property national government for purposes other than
for purposes of taxation to be held by such bank national infrastructure projects, the assessed
subject to the orders of the court. value standard and the deposit mode
prescribed in Rule 67 continues to apply. The
Deposit shall be in money, UNLESS the court
intent of R.A. No. 8974 to supersede the
authorizes the deposit of a certificate of deposit
system of deposit under Rule 67 with the
of a government bank of the Philippines payable
scheme of ―immediate payment‖ in cases
on demand to the authorized government
involving national government infrastructure
depositary (Rule 67, Sec. 2).
projects is indeed very clear (Republic vs.
Exception: If the subject matter involves the Gingoyon, G.R. No. 166429, December 19, 2005).
acquisition of right-of-way, site or location for any
national government infrastructure project R.A. No. 8974 amended Sec.2 of Rule 67 (Riano,
Vol.II, pp. 296-297).
through expropriation pursuant to Sec. 4 (a) of
RA 8974 (An Act to Facilitate the Acquisition of ENTRY OR RULE 67
Right-of-Way, Site or Location for National POSSESSION UNDER EXPROPRIATION
Government Infrastructure Projects and For Other R.A. No. 8974
Purposes). Expropriation is for a Expropriation is done for
specific purpose: public use.
5.I.4. New System of Immediate Payment  Acquisition of Right-
of Initial Just Compensation Of-Way, site or
location for National
Requisites Government
Infrastructure
1. A complaint is filed; Projects and for
2. Purpose is the acquisition of right-of-way, site other Purposes
or location for any national government
infrastructure project through expropriation; To be entitled to a writ Government is required
of possession, the only to make an INITIAL

Bar Operations C ommissions 243

 Purple Notes
Remedial Law
government is required DEPOSIT to No counterclaim, cross claim or third party
to make IMMEDIATE AUTHORIZED complaint shall be alleged or allowed in the
payment DIRECTLY to DEPOSITORY. answer or any subsequent pleading.
the owner upon filing of
the complaint.
Waiver of Defenses and Remedy Thereto
Relevant standard for Initial deposit shall be
intial compensation equivalent to ASSESSED
 Land – whichever is VALUE of the property A defendant waives all defenses and objections
higher of the: for the purpose of not so alleged. However, whether or not he has
a) market value of taxation. previously appeared or answered, he may
the property as present evidence as to the amount of
stated in the compensation to be paid for his property, and
tax declaration; share in the distribution of the award.
or,
b) current zonal The court, in the interest of justice, may permit
value amendments to the answer not later than 10
days from the filing thereof.
 Improvements or
structures - 5.I.6. Order of Expropriation
Replacement Cost
Mehod is used. An order declaring that the plaintiff has lawful
 No valuation right to take the property for public use upon
available - proffered payment of just compensation (Rule 67, Sec. 4).
value of the
property seized.
When court may issue an Order of
Expropriation:
Purpose of Preliminary Deposit: Provide for
a) Objections of the defendant are overruled; or
damages in case the court finds that plaintiff has
b) No party appears to object or defend against
no right to expropriate (Rule 67, Sec. 2).
the expropriation (Rule 67, Sec. 4).
 Q: What is the nature ofpreliminary deposit?
5.I.7 Ascertainment of Just Compensation
(Rule 67, Sec. 5)
A: Preliminary Deposit is an advance
payment for just compensation (Visayan Upon rendition of the Order of Expropriation:
Refining Co. vs. Camus, G.R. no. No. 15870,
December 03, 1919).
1. The court shall appoint not more than 3
commisioners to ascertain and report to the
5.I.5. Defenses and Objections (Rule 67, Sec.
court just compensation;
3)
2. A hearing is conducted before the
If the defendant has no objection or defense to
commissioners.
the action or taking of his property, he may file
and serve a notice of appearance and a
Note: Hearing is mandatory.
manifestation to that effect.
The parties must be given:
If a defendant has any objection to the filing of
or the allegations in the complaint, or any
a. notice of the hearings and the
objection or defense to the taking of his property,
opportunity to attend them;
he shall serve his answer within the time stated
b. opportunity to introduce evidence in their
in the summons.
favor during the said hearings; and,
Prohibited Pleading
c. opportunity for the parties to argue their
respective causes

244 Center for Legal Education and Research


 Q: Is the hearing before a commissioner
indispensable?
A: YES. A hearing before the commissioners
is indispensable to allow the parties to
present evidence on the issue of just
compensation. While it is true that the
findings of commissioners may be
disregarded and the trial court may
substitute its own estimate of the value, the
latter may only do so for valid reasons, that
is, where the commissioners have applied
illegal principles to the evidence submitted
to them, where they have disregarded a
clear preponderance of evidence, or where
the amount allowed is either grossly
inadequate or excessive. Thus, "trial with
the aid of the commissioners‖ is a
substantial right that may not be done away
with capriciously or for no reason at all. The
absence of such trial or hearing constitutes
reversible error on the part of the trial court
because the parties‘ right to due process
was violated(National Power Corp.,vs. Sps. Dela
Cruz,G.R. No. 156093, February 2, 2007; Riano,
Vol.II p. 301)
3. The commissioners shall assess
Consequential Damages to property not
taken and deduct from such damages the
Consequential Benefits to be derived by
the owner from public use of the property
taken (Sec.6, Rule 67).
Note: Consequential benefit can in NO case
EXCEED Consequential damages as to
deprive the owner of the value of his
property (Riano, Vol. II, p. 302).
5.I.8. Appointment of Commissioners;
Commissioner’s Report; Court Action upon
Commissioner’s Report(Rule 67, Sec. 5)
Upon rendition of Order of Expropriation, the
court shall appoint not more than 3 competent
and disinterested persons as commissioners to
ascertain just compensation.
The appointment of commissioners is
MANDATORY and cannot be dispensed with.
Order of Appointment (Rule 67, Sec. 5)
Purple Notes
Remedial Law
The Order shall:
a. Designate the time and place of the first
session of the hearing to be held by the
commissioners; and,
b. Specify the time within which the
commissioners‘ report shall be submitted to
the court.
Copies of the Order of Appoinment shall be
served on the parties.
Objections to the Appointment of Any
Commissioner (Rule 67, Sec. 5)
All interested parties may file objections to the
commissioners‘ report within 10 days upon
being served copies of the same.
The objections shall be resolved 30 days after all
the commissioners shall have received copies of
the objections.
Oath: Before entering upon the performance of
their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform
their duties as commissioners, which oath shall
be filed in court with the other proceedings of the
case (Rule 67, Sec. 6).
Commissioners’ Report and Judgment
thereupon (Rule 67, Sec. 7)
The court may:
1. Order the commissioners to report when any
particular portion of the real estate shall have
been passed upon by them and render
judgment upon such partial report;
2. Direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated; and,
3. Deal with such property, from time to time
The commissioners shall make a full and accurate
report to the court of all their proceedings, and
such proceedings shall not be effectual until the
court shall have accepted their report and
rendered judgment in accordance with their
recommendations.
General Rule: The report shall be filed within
sixty (60) days from the date the commissioners
Bar Operations C ommissions 245
 Purple Notes
Remedial Law
were notified of their appointment, which time
may be extended in the discretion of the court.
Exception: When otherwise expressly ordered
by the court.
Upon the filing commissioners‘ report, the clerk
of court shall serve copies thereof on all
interested parties, with notice that they are
allowed ten (10) days within which to file
objections to the findings of the report, if they so
desire (Rule 67, Sec. 7)
Action upon the report (Rule 67, Sec. 8)
When proper: (ARSPM)
 upon the expiration of the period of ten (10)
days stated in the notice; or,
 before the expiration of such period but after
all the interested parties have filed their
objections to the report or their statement of
agreement therewith; and,
 after hearing
The court may:
a) Accept the report and render judgment in
accordance therewith; or,
b) Recommit the report, for cause shown, to
the commissioners for further report of facts;
or
c) Set aside the report and appoint new
commissioners; or
d) Accept the report in Part and reject it in part;
and,
e) Make such order or render such judgment as
shall secure to the plaintiff the property
essential to the exercise of his right of
expropriation, and to the defendant just
compensation for the property so taken.
Uncertain Ownership and Conflicting
Claims (Rule 67, Sec. 9)
The ownership of the property shall be
determined by the court and it may order any
sum awarded to be deposited with the court.
The court shall award any sum representing just
compensation to be deposited with the Clerk of
Court for the benefit of the person to be later
246 Center for Legal Education and Research
adjudged as lawful owner of the land or the one
entitled to the compensation in the case. There is
no need for an independent action since the
person entitled thereto will be adjudged in the
same proceeding.
5.I.9. Rights of Plaintiff Upon Judgment
and Payment (Rule 67, Sec. 10)
1) Enter the property expropriated and
appropriate it for public use or purpose as
defined in the judgment; or,
2) Retain the property should immediate
possession under Sec. 2 has been exercised
When is Title Vested in Expropriation
 Personal property – Upon payment of just
compensation.
 Real property – Upon payment of just
compensation AND registration.
 Q: What is the reckoning period for the
determination of just compensation?
A: Just compensation is determined as of the
date of the taking of the property OR the
filing of the complaint, whichever came
first(BPI vs. CA, G.R. NO. 160890, November 10,
2004).
 Q: What is just compensation?
A:Just compensation refers to the sum
equivalent to the market value of the
property, broadly described to be the price
fixed by the seller in open market in the
usual and ordinary course of legal action and
competition, or the fair value of the property
as between one who receives and one who
desires to sell. It is fixed at the time of the
actual taking by the State. Thus, if property
is taken for public use before compensation is
deposited with the court having jurisdiction
over the case, the final compensation must
include interests on its just value, to be
computed from the time the property is taken
up to the time when compensation is actually
paid or deposited with the court (Apo Fruits
 Purple Notes
Remedial Law
Corp., et al., vs. CA, G.R. No. 164195, December 2. the nature of the public use or purpose for
4, 2009). which it is expropriated.

Formula to determine just compensation 5.I.10. Effect of Recording of Judgment

JC = Just Compensation Effect of Judgment When Real Estate is

FMV = Fair Market Value Expropriated (Rule 67, Sec. 13)
CD = Consequential Damages
CB = Consequential Benefits A certified copy of the judgment shall be
FMV + (CD – CB) = JC recorded in the Registry of Deeds of the place in
which the property is situated.
Deduct the consequential benefits from the
consequential damages, then add to the fair Such recording vests in the plaintiff the title to
market value. The resulting amount is the just the real estate so described for such public use or
compensation. purpose.

If CB > CD, then JC = FMV Effect of Appeal (Rule 67, Sec. 13)

If consequential benefits are greater than the
consequential damages, then just compensation
shall be equal to the fair market value.
Rule if payment is refused
If the defendant and his counsel absent
themselves from the court, or decline to receive
the amount tendered, the same shall be ordered
to be deposited in court and such deposit shall
have the same effect as actual payment thereof
to the defendant or the person ultimately
adjudged entitled thereto (Rule 67, Sec. 10).
An appeal from the judgment shall not delay the
right of the plaintiff to enter upon the property
and appropriate the same for public use or
purpose.
Multiple Appeals Allowed
The Order of Expropriation may be appealed by
the defendant by record on appeal. This is an
instance when multiple appeals are allowed
because they pertain to separate and/or several
judgments on different issues (e.g., such as issue
on the right to expropriate and issue of just
compensation).

Effect of Non-Payment of Just Effect of Reversal of the Order of

Compensation Expropriation (Rule 67, Sec. 13)

General Rule: Non-payment of just The owner shall repossess the property with the
compensation does not automatically entitle the right to be indemnified for all damages sustained
private owner to recover possession of the due to the taking.
expropriated property.
GUIDELINES FOR EXPROPRIATION
Exception: Private owners have the right to PROCEEDINGS OF NATIONAL
recover possession of property if the State fails to GOVERNMENT INFRASTRUCTURE
pay within 5 years from finality of judgment PROJECTS (R.A. No. 8974, Sec. 4)
(Riano, Vol.II, p. 305).
Contents of Judgment (Rule 67, Sec. 13) The court shall immediately issue to the
implementing agency a Writ of Possession upon:
The judgment entered in expropriation
proceedings shall state definitely, by an adequate 1. presentation to the court of a certificate of
description: availability of funds from the proper official
concerned; and
1. the particular property or interest therein 2. compliance with the following guidelines:
expropriated; and,

Bar Operations C ommissions 247

 Purple Notes
Remedial Law
Upon the filing of the complaint, and after
due notice to the defendant, the
implementing agency shall immediately
pay the owner of the property the amount
equivalent to the sum of:
 one hundred percent (100%) of the
value of the property based on the
current relevant zonal valuation of the
Bureau of Internal Revenue (BIR); and,
 the value of the improvements and/or
structures using the replacement cost
method
a) In provinces, cities, municipalities and
other areas where there is no zonal
valuation, the BIR is mandated within the
period of sixty (60) days from the date of
the expropriation case, to come up with a
zonal valuation for said area; and,
b) In case the completion of a government
infrastructure project is of utmost urgency
and importance, and there is no existing
valuation of the area concerned, the
implementing agency shall immediately
pay the owner of the property its proffered
value.
Court Shall Determine Just Compensation
When Proferred Value is Contested
In the event that the owner of the property
contests the proffered value, the court shall
determine the just compensation to be paid the
owner within sixty (60) days from the date of
filing of the expropriation case.
When the decision of the court becomes final and
executory, the implementing agency shall pay the
owner the difference between the amount
already paid and the just compensation as
determined by the court.
5.J.FORECLOSURE OF REAL ESTATE
MORTGAGE
Foreclosure of mortgage is the process by which
a property covered may be subjected to sale to
pay demand for which mortgages stand as
security (Pacific Commercial Co. v. Alvarez, 38 OG
758).
248 Center for Legal Education and Research
Foreclosure is the necessary consequence of non-
payment of mortgage indebtedness. The
mortgage can be foreclosed only when the debt
remains unpaid at the time it is due (Producers
Bank v. CA, GR No. 111584, 17 Sept. 2001) or in case
of default in the payment of obligation (PNB v. CA,
GR No. 126908, January 16, 2003; Chinabank v. CA,
G.R. No. 121158, December 05, 1996)
Default of the Debtor
General Rule: Default occurs when payment is
not made after a valid demand.
Exception: When stipulated that demand is not
necessary for default to arise (Riano, Vol.II, p. 309)
5.J.1. Kinds of Foreclosure
a. Judicial foreclosure is done pursuant to
Rule 68 of the Rules of Court; and
b. Extra-judicial foreclosure is effected
pursuant to Act No. 3135, as amended by Act
No. 4118
5.J.1.a. JUDICIAL FORECLOSURE (Rule 68)
Judicial foreclosure of real estate mortgage is
governed by the provisions of Rule 68 of the
Rules of Court. Like any ordinary civil action filed
in court it shall be proven by preponderance of
evidence.
5.J.1.b. EXTRAJUDICIAL FORECLOSURE (Act
No. 3135, as amended)
Extra-judicial foreclosure is the mode to be
used if there is a special power inserted in or
attached to the real estate mortgage contract
allowing an extra-judicial foreclosure sale (Sec. 1,
Act No. 3135, as amended).
Act no. 3135, as amended prescribes a procedure
which effectively safeguards the rights of both
debtor and creditor. Thus, its construction (or
interpretation) must be equally and mutually
beneficial to both parties. (Phil. National Bank vs.
Cabatingan, G.R. No. 167058, July 09, 2008)
Where there is no such special power, the
foreclosure shall be done judicially following the
procedure set under Rule 68.
 Purple Notes
Remedial Law
Judicial Foreclosure vs. Extrajudicial person executing the same a co-mortgagor of the
Foreclosure debtor. (Cerna vs. Court of Appeals, G.R. No. 48359,
March 30, 1993) Thus, it has been held that an
EXTRA-JUDICIAL JUDICIAL accommodation mortgagor as such is not in any
FORECLOSURE FORECLOSURE way liable for the payment of the loan or
(ACT 3135) (RULE 68) principal obligation of the debtor/borrower. His
Complaint is filed with liability extends only up to the loan value of his
No complaint is filed;
the courts;
mortgaged property and not to the entire loan
No right of redemption
itself. Hence, he may redeem his mortgaged
except when
There is a right of mortgagee is a property by paying only the winning bid price
redemption. Mortgagor banking institution; thereof (plus interest and expenses thereon) at
has a right of redemption equity of redemption the public auction sale(Belo vs. Philippine National
for 1 year from only (90 to 120 days, Bank, G.R. No. 134330, March 01, 2001).
registration of the sale; and any time before
confirmation of 5.J.3. Authority to foreclose extrajudicially
foreclosure sale);
Mortagagee can move InSps. Baysa v. Sps. Plantilla, the Supreme
Mortgagee has to file a for deficiency Court declared that there is authority to foreclose
separate action to recover judgment in the same
extrajudicially when the mortgagee document
any deficiency; action
empowers the mortgagee to extrajudicially
Buyer at public auction Buyer at public auction foreclose the property. Such authority to
becomes absolute owner becomes absolute extrajudicially foreclose by necessary implication
only after finality of an owner only after carries with it the grant of power to sell the
action for consolidation of confirmation of the property at a public auction. It is only when the
ownership; sale; deed is silent as to the grant of authority to
Mortgagee is given a extrajudicially foreclose on the mortgage that a
special power of attorney mortgagee is prevented from availing of such
Mortgagee need not be
in the mortgage contract remedy(G.R. No. 159271, July 13, 2015).
given a special power
to foreclose the
of attorney.
mortgaged property in
5.J.4. Procedure
case of default.
No court intervention Requires court
necessary. intervention. Rule 68 does not provide for any special
Right of redemption There is only an equity provisions on the mechanics of a suit. Hence, a
exists. of redemption. foreclosure suit will proceed like an ordinary civil
Filed with the office of the filed before the RTC action in so far as not inconsistent with Rule 68
sheriff of the province where the mortgaged (Riano, Vol.II, pp. 314-315).
where the sale is to be property or any part
made thereof is situated 5.J.4.a. Where to File: MTC or RTC, depending
There can be no judgment There could be a on the assessed value of the property in
for a deficiency because deficienty judgment question, or any interest therein.
there is no judicial rendered by the court
proceeding although in the same
An action for foreclosure of mortgage may be
recovery of deficienty is proceeding.
allowed. deemed as an action involving interest in real
The recovery of the Recovery for the property, hence a real action(Riano, Civil Procedure
deficienty is through an deficiency can by done Vol. II, 2016 ed., P. 312).
independent action. mere motion.
Parties to Judicial Foreclosure
5.J.2. Need for Special Power of Attorney
1. Mortgagee
A special power of attorney authorizing another 2. Mortgagor
to mortgage one‘s property as security of the 3. Successors in interest
former‘s obligation does not of itself make the 4. Junior encumbrancer/s

Bar Operations C ommissions 249

 Purple Notes
Remedial Law
Parties Defendant; Indispensable Parties
1. Mortgage debtor;
2. Owner of property, if not debtor;
3. Executor or administrator of deceased
mortgagor;
4. Executor or administrator of the deceased
owner; and,
5. Heir/s of the deceased owner of the property
Necessary Parties
All persons having claims or claiming an interest
subordinate to the holder of the mortgage, e.g.
second mortgagee, subsequent attaching
creditor, and purchaser of the mortgaged
property(Rule 68, Sec. 1).
Contents of Complaint (Rule 68, Sec. 1)
(DANDOAN)
a. Date and due execution of the mortgage;
b. Its Assignments, if any;
c. Names and residences of the mortgagor and
mortgagee;
d. Description of mortgaged property;
e. Statement of the date of the note or other
documentary evidence of the Obligation
secured by the mortgage;
f. Amount claimed to be unpaid thereon; and,
g. Names and residences of all persons having
or claiming an interest in the property
subordinate in right to that of the holder of
the mortgage, all of whom shall be made
defendants in the action.
5.J.4.b. Where to sell
The property shall be sold at a public auction to
satisfy the judgment in the event that the
defendant failed to pay theamount due to the
plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved
by the court, and costs(Rule 68, sec. 2).
Judgment on the Foreclosure for Payment
or Sale (Rule 68, Sec. 2)
If upon trial, the court shall find the facts set
forth in the complant to be true, it shall:
250 Center for Legal Education and Research
1. Ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including
interest and other charges as approved by the
court and the costs; and,
2. Render judgment for the sum so found due
and order that the same be paid to the court
or to the judgment obligee within a period of
not less than 90 days but not more than 120
days from entry of judgment.
Period given for the payment of the sum due
is not merely provisional but a SUBSTANTIVE
RIGHT granted to mortgage debtor as last
opportunity for him to pay his debt and save
his mortgaged property from final disposition
at a foreclosure sale (Riano, Vol.II, p. 315).
Effect if the Junior Encumbrancer is Not
Impleaded
 His equity or right of redemption is NOT
affected or barred by the judgment of the
court because he is a mere necessary party,
not an indispensable party (Sunlife Insurance
vs. Diez, G.R. No. 29027, October 25, 1928).
The remedy of the senior encumbrancer is to file
an INDEPENDENT proceeding to foreclose the
right to redeem by requiring the junior
encumbrancer to pay the amount stated in the
order of execution or to redeem the property in a
specified time.
Effect of failure by the defendant to pay the
amount of judgment(Rule 68, Sec. 3)
The court shall order the property to be sold
pursuant to the provisions of Rule 39 and other
relevant regulations.
5.J.4.c. Posting requirements
Before the sale of the real proerty/ies, notice
must be given:
 By posting for 20-days in three (3) public
places. If the assessed value is more than
P50,000.00 (Sec. 15c, Rule 39).
 Written notice to the judgment obligor at least
three (3) days before the sale (Sec. 15d, Rule
39).

The rule is that statutory provisions governing
public notice of foreclosure sales must be strictly
complied with, and even slight deviations
therefrom will invalidate the sale or render it at
least voidable(Tambunting vs. Court of Appeals, G.R.
No. No. L-48278 , November 08, 1988; Roxas vs. Court
of Appeals, G.R. No. 100480, May 11, 1993).
5.J.4.d. Publication requirement
Before the sale of the real proerty/ies a copy of
the notice must be published once a week for
two (2) consecutive weeks in one newspaper
selected by raffle whether in English, Filipino, or
any major regional language published, edited
and circulated or, in the absence thereof, having
general circulation in the province or city (Sec.
15c, Rule 39).
5.J.d.i. Sufficiency of newspaper
publication
Republic Act 3135 as amended by RA 4118
provides that, notice shall be given by posting
notices of the sale for not less than twenty days
in at least three public places of the municipality
or city where the property is situated, and if such
property is worth more than four hundred pesos,
such notice shall also be published once a week
for at least three consecutive weeks in a
newspaper of general circulation in the
municipality or city(Sec. 3).
5.J.4.d.ii. Need for republication in case of
postponement
 Republication in the manner prescribed by
Act No. 3135 is necessary for the validity of
a postponed extrajudicial foreclosure sale.
Another publication is required in case the
auction sale is rescheduled, and the absence
of such republication invalidates the
foreclosure sale(DBP vs. CA, G.R. No. 125838
June 10, 2003).
 Q: Can the posting and publication
requirement be waived?
A: NO. Waiverof posting and publication
requirements of Act No. 3135is void for
Notices are given to secure bidders and
prevent a sacrifice of the property. Clearly,
Purple Notes
Remedial Law
the statutory requirements of posting and
publication are mandated, not for the
mortgagor's benefit, but for the public or
third persons. As such, it is imbued with
public policy considerations and any waiver
thereof would be inconsistent with the intent
and letter of Act No. 3135 (Metropolitan Bank
vs. Nikkon Sources International Corp., G.R. No.
178479, October 23, 2009).
5.J.4.d.iii. Personal notice to the mortgagor
when and when not needed
Settled is the rule that personal notice to the
mortgagor in extra-judicial foreclosure
proceedings is not necessary.
Section 3 of Republic Act 3135 governing extra-
judicial foreclosure of real-estate mortgages, as
amended, requires only the posting of the notice
of sale in three public places and the publication
of that notice in a newspaper of general
circulation. It is pristine clear from the above
provision that the lack of personal notice to the
mortgagor, herein petitioner, is not a ground to
set aside the foreclosure sale.‖ (Fortune Motors
(Phils.) Inc. vs. Metropolitan Bank and Trust Company,
G.R. No. 115068, November 28, 1996)
On the other hand, if the parties to the real-
estate mortgage agreed that in case of extra-
judicial foreclosure sale, the mortgagor shall be
informed of the same by the mortgagee, this
must be faithfully complied with, otherwise the
sale shall be null and void(Global Holiday Ownership
Corporation vs. Metropolitan Bank & Trust
Company,G.R. No. 184081, June 19, 2009).
5.J.5. Possession by purchaser of
foreclosed property
If the purchaser wants possession during the
redemption period, he may execute a bond in the
amount equivalent to the use of the property for
12 months, to indemnify the debtor in case it be
shown that the sale was made without violating
the mortgage or without complying with the
requirements of the Act. Upon approval, a writ
of possession will be issued in his favor.
In case the winning bidder is able to secure
possession, the mortgagor may petition that the
sale is set aside and the writ of possession be
cancelled on the ground that he wasn't in
Bar Operations C ommissions 251
 Purple Notes
Remedial Law
default or that the sale wasn't made in
accordance with Act 3135. This must be
filed within 30 days from issuance of the writ of
possession.
Until the foreclosure sale of the property in
question is annulled by a court of competent
jurisdiction, the issuance of the writ of possession
remains a ministerial duty of the trial court.
Hence, the trial court would, in denying the
petition for issuance of writ of possession on the
grounds that the loan has not been proven; or
that execution of the mortgage and default have
not been proven, be committing grave abuse of
discretion(Chilease Finance Corp. v. Sps. Ma, G.R. No.
151941, August 15, 2003).
5.J.6. Remedy of debtor if foreclosure is not
proper
The debtor may file a case to annul the mortgage
and/or the extrajudicial foreclosure sale.
Effect of Sale of Mortgaged Property(Rule 68,
Sec. 3)
1. Sale shall not affect the rights of persons
holding prior encumbrances upon the
property or a part thereof;
2. When confirmed by an order of the court
and upon motion, the sale shall operate to:
 Divest the rights in the property of all
parties to the action; and,
 Vest their rights in the purchaser, subject
to such right of redemption.
The import of Sec. 3 includes one vital effect: the
equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no
further redemption, unless allowed by law (as in
the case of banks as mortgagees). The equity of
redemption starts from the ninety-day (90-day)
period set in the judgment of the court up to the
time before the sale is confirmed by an order of
the court. Once confirmed, no equity of
redemption may further be exercised.
Note: Mortgagee should file a Motion For
Confirmation of Sale after foreclosure sale has
252 Center for Legal Education and Research
been effected. Such motion requires notice and
hearing.
 Q: What is the effect of confirmation of
sale?
A.Thetitle vests upon the purchaser in the
foreclosure sale, and the confirmation
retroacts to the date of the sale (Villar vs.
Paderanga, G.R. No. L-7687, September 28,
1955.).
Order of Confirmation Appealable
The order of confirmation is appealable. If not
appealed within the period for appeal, it becomes
final(Riano, Civil Procedure Vol. II, 2016 Ed., p.319).
 Q: Is the mortgagor entitled to notice of
hearing of the confirmation of sale?
A:The mortgagor is entitled to a notice of
hearing of the confirmation of the sale.
Otherwise, the order is void. Due process
requires that said notice be given so that the
mortgagor can resist the motion and be
informed that his right to redeem is cut off
(Tiglao vs. Botones, G.R. No. L-3619, October 29,
1951).
Effect of Finality of Order of Confirmation
General Rule: The purchaser at the auction sale
or last redemptioner shall be entitled to the
possession of property:
1) upon finality of the order of confirmation; or,
2) upon the expiration of the period of
redemption, when allowed by law(Rule 68,
Sec. 3).
Exception: When a third party is actually
holding the same adversely to the judgment
obligor(Rule 68, Sec. 3).
Remedy:Purchaser or last redemptioner may
secure a writ of possession, upon motion (ex-
parte), from the court which ordered the
foreclosure(Rule 68, Sec. 3).
 Purple Notes
Remedial Law
Motion for issuance of writ of possession is Equity of Redemption
an exception to the 3-day notice rule for
motions. Equity of redemption is the right of the
mortgagor to redeem the mortgaged property
RULE 39 RULE 68 after his default in the performance of the
(Execution of (Foreclosure of Real conditions of the mortgage but before the sale of
Judgments) Estate)
the property or the confirmation of the sale after
No need to confirm There is a need to
sale. confirm sale.
judicial foreclosure thereof (International Services,
Inc. vs. IAC, G.R. Nos. L-67496, No. L-68257, July 07,
1986).
Disposition of Proceeds of Sale(Rule 68, Sec.
4)
This is the right of the defendant mortgagor to
After deducting the costs of the sale, the extinguish the mortgage and retain ownership of
proceeds of the sale of the mortgaged property the property by paying the secured debt within a
90-day period after the judgment becomes final
shall be paid to the person foreclosing the
mortgage. or after the foreclosure sale but prior to its
confirmation (Government Insurance System vs. The
CFI of Iloilo, G.R. No. 45322, July 5, 1989).
Any balance or residue after paying off the
mortgage debt due shall be paid to junior
encumbrancers in the order of their priority. Equity of Redemption vs. Right of
Redemption
If there be any further balance after paying them
or if there be no junior encumbrancers, the same EQUITY OF RIGHT OF
REDEMPTION REDEMPTION
shall be paid to the mortgagor or any person
(Rule 68) (Secs. 29 – 31 of Rule
entitled thereto. 39)

Registration of Sale The right of defendant A right granted to a

mortgagor to debtor mortgagor, his
A certified copy of the final order of the court extinguish the successor in interest
confirming the sale shall be registered in the mortgage and retain or any judicial creditor
Registry of Deeds (Rule 68, Sec. 7). ownership of the or judgment creditor
property by paying the or any person having
5.J.7. Redemption debt within 90 to 120 a lien on the property
days after the entry of subsequent to the
judgment or even after mortgage or deed of
In general, the concept of redemption is to allow the foreclosure sale but trust under which the
the ownerto repurchase or buy back, within a prior to confirmation. property is sold to
certain period and for acertain amount, a repurchase the
property that has been sold due to debt, tax, property within one
orencumbrance(Iligan Bay Manufacturing Corp. vs. year even after the
Dy, G.R. Nos. 140836 & 140907, June 08, 2007). confirmation of the
sale and even after
Right of Redemption for Judicial the registration of the
Foreclosure certificate of
foreclosure sale.
May be exercised even There is no right of
General Rule: There is NO right of redemption
after the foreclosure redemption in a
in a judicial foreclosure of mortgage under Rule sale provided it is made judicial foreclosure of
68. before the sale is mortgage under Rule
confirmed by order of 68. This right of
Exception: Mortgagee is a financial institution the court. redemption exists
(Government Insurance System vs. The CFI of Iloilo, only in extrajudicial
G.R. No. 45322, July 5, 1989). foreclosures where
there is always a right

Bar Operations C ommissions 253

 Purple Notes
Remedial Law
of redemption within performance of the registration of the
one year from the conditions of the foreclosure sale, and
date of sale (Sec. 3, mortgage but before even after
Act 3135), but the sale of the property confirmation of the
interpreted by the to clear it from the sale.
Court to mean one encumbrance of the
year from the mortgage.
registration of the
sale. Right of Redemption for Extra-judicial
May also exist in favor General rule: In Foreclosure
or other encumbrances. judicial foreclosures
If subsequent lien there is only an equity
 Q. Is there a right of redemption in
holders are not of redemption which
impleaded as parties in can be exercised prior extrajudicial foreclosure?
the foreclosure suit, the to the confirmation of
judgment in favor of the foreclosure sale. A.Inextrajudicial foreclosure, there is
the foreclosing This means that after always a right of redemption within one year
mortgagee does not the foreclosure sale from the date of sale (Sec. 6, Act No. 3135) but
bind the other lien but before its interpreted by the court to mean one year
holders. In this case, confirmation, the from registration of the sale (Reyes vs.
their equity of mortgagor may Tolentino, G.R. No. L-29142, November 29, 1971).
redemption remains exercise his right of
unforeclosed. A pay the proceeds of
 Q. In case the mortgagee purchased the
separate foreclosure the sale and prevent
proceeding has to be the confirmation of property at the forclosure sale after the
brought against them the sale. extrajudicial foreclosure of a real estate
to require them to mortgage, is the mortgagee entitled to a writ
redeem from the first of possession?
mortgagee or from the A.Where, after extrajudicial foreclosure of a
party acquiring the title real estate mortgage, the mortgagee
to the mortgaged purchased the same at the foreclosure sale,
property.
he shall be entitled to a writ of possession
If not by banks, the Exception: there is
despite the fact that the premises are in the
mortgagors merely a right of redemption
have an equity of if the foreclosure is in possession of a lessee whose lease had not
redemption, which is favor of banks as yet terminated, unless the lease had been
simply their right, as mortgagees, whether previously registered in the Registry of
mortgagor, to the foreclosure be Property or the mortgagee had prior actual
extinguish the judicial or knowledge of the existence of the lease.
mortgage and retain extrajudicial. This Under Sec. 7 of Act 3135, as amended, the
ownership of the right of redemption is petition for such writ of possession shall be
property by paying the explicitly provided in made under oath and filed as an ex parte
secured debt prior to Sec. 47 of the
motion in the registration or cadastral
the confirmation of the General Banking Law
foreclosure sale. of 2000. While the proceedings of the property (Ibasco vs.
law mentions the Caguioa, G.R. No. 62619, August 19, 1986).
redemption period to
be one year counted 5.J.7.a. Who may redeem
from the date of
registration of the (a) The judgment obligor; or his successor in
certificate in the interest in the whole or any part of the property;
Registry of Property

Is the right of the Right of the (b) A creditor having a lien by virtue of an
mortgagor to redeem mortgagor to redeem attachment, judgment or mortgage on the
the mortgaged property the mortgaged property sold, or on some part thereof,
after his default in the property after subsequent to the lien under which the property

254 Center for Legal Education and Research


was sold. Such redeeming creditor is termed a
redemptioner. (Rule 39, sec. 27)
Note: As a general rule, the mortgagor may
redeem the foreclosed property within one (1)
year from the date of the sale (Act No. 3135, as
amended).
A third party may redeem the mortgaged
property when there is a sale of such by the
mortgagor to a third party during the period for
redemption. Said sale transfers only the right to
redeem the property. (Dizon vs. Gaborro, G.R. No.
L-36821 , June 22, 1978)
If the lien is prior to the judgment, a person is
not considered a redemptioner because the
latter‘s interests in his lien are fully protected (see
Rule 39, sec. 12)
5.J.7.b. Amount of Redemption Price
Under Rule 39, sec. 28:
A. Purchase price;
B. 1% interest thereon, up to the time of
redemption;
C. Any amount of assesments or taxes which the
purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate; and
D. If the urchaser be also a creditor having a
prior lien to that of the redemptioner,other
than the judgment under which such purchase
was made, the amount of such other lien,
with interest.
Note: The redemption priceif the property is
redeemed by a subsequent redemptioners:
a.) Amount paid on the last redemption;
b.) 2% interest thereon;
c.) Any amount of assessments or taxes
which the last redemptioner may have
paid thereon after redemption by him
with interest on such last-named amount;
and
d.) Amount of any liens held by said last
redemptioner prior to his own, with
interest.
5.J.7.c. Period for redemption
Purple Notes
Remedial Law
Under Rule 39, Sec. 28, the judgment obligor, or
redemptioner, may redeem the property from the
purchaser, at any time within one (1) year from
the date of the registration of the certificate of
sale.
Note: Provided by Act No. 3135, as amended,
the mortgagor may redeem the foreclosed
property within one (1) year from the date of the
sale.
5.J.7.d. Effect of Pendency of Action For
Annulment of Sale
The periods for redemption are not extendible or
interreputed. However, the parties may agree on
a longer period, but it would be a conventional
redemption. (Lazo v. Republic Surety and Insurance,
Co., Inc., G.R. no. L-27365, January 30, 1970)
Where NO Right of Redemption Exists
The certificate of title in the name of the
mortgagor shall be cancelled, and a new one
issued in the name of the purchaser (Rule 68, Sec.
7).
Where Right of Redemption Exists
The certificate of title in the name of the
mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the
sale shall be registered and a brief memorandum
thereof made by the registrar of deeds upon the
certificate of title (Rule 68, Sec. 7).
If Property is Redeemed
The deed of redemption shall be registered with
the registry of deeds, and a brief memorandum
thereof shall be made by the registrar of deeds
on said certificate of title (Rule 68, Sec. 7).
If Property is NOT Redeemed
The final deed of sale executed by the sheriff in
favor of the purchaser at the foreclosure sale
shall be registered with the registry of deeds;
whereupon the certificate of title in the name of
the mortgagor shall be cancelled and a new one
issued in the name of the purchaser (Rule 68, Sec.
7).
Deficiency Judgment (Rule 68, Sec. 6)
Bar Operations C ommissions 255
 Purple Notes
Remedial Law
Deficiency Judgment is rendered by a court
holding defendant liable for any unpaid balance
due to the mortgagee, if the proceeds of the
foreclosure sale does not satisfy the entire debt.
In case of deficiency judgment where the
property was sold less than the amount of the
loan, deficiency may be recovered by filing a
motion pursuant to Rule 39. There is no need for
an independent action to recover said deficiency.
Deficiency Judgment is a judgment in itself, thus,
APPEALABLE(Riano, Civil Procedure Vol. II, 2016 ed.,
P. 322).
Note:Judgment of Foreclosure is an action quasi
in rem, while a Deficiency Judgment is an action
in personam(Riano, Civil Procedure Vol. II, 2016 ed.,
P. 322).
Instances where court cannot render
deficiency judgment (RED-T)
1. Recto Law (see: Art. 1484 of the NCC) –
where the mortgagor is a non-resident,
UNLESS there is attachment
Ratio: Deficiency judgment is an action in
personam and jurisdiction over the person is
mandatory. Since the debtor is outside the
country, jurisdiction over his person cannot
be acquired (Riano, Vol. II, p. 322).
2. When mortgagor Dies - the mortgagee must
file his claim with the probate court (Rule 86,
Sec. 7).
3. Mortgagor is a Third person but not solidarily
liable with the debtor.
4. A mortgagor, who is not a debtor and merely
Executed the mortgage to secure a principal
debtor‘s obligation, is not liable for deficiency
UNLESS he assumed liability for the same in
contract (Phil. Trust Company vs. Siua, G.R. no.
No. 29736, February 28, 1929; Riano,Vol. II, p.
322).
THE GENERAL BANKING LAW OF 2000 (R.A.
No. 8791, Sec. 47)
Right of Redemption under R.A. No. 8791
256 Center for Legal Education and Research
In the event of foreclosure, whether judicially or
extrajudicially, of any mortgage on real estate, the
mortgagor or debtor whose real property has been
sold for the full or partial payment of his obligation
shall have the right within one year after the sale
of the real estate, to redeem the property by
paying the amount due under the mortgage deed,
with interest thereon at the rate specified in the
mortgage, and all the costs and expenses incurred
by the bank or institution from the sale and
custody of said property less the income derived
therefrom.
Effect of Confirmation of Sale
The purchaser at the auction sale concerned,
whether in a judicial or extrajudicial foreclosure,
shall have the right to enter upon and take
possession of such property immediately after the
date of the confirmation of the auction sale and
administer the same in accordance with law.
 Sec. 47, par. 1, of the General Banking Law of
2000 explicitly provides the right of
redemption under judicial foreclosure of
mortgage.
 The General banking Act of 2000 specifically
Sec. 47, 2nd par.shortens the period of redemption
in extrajudicial foreclosure when the mortgagor
is a juridical person. The period of
redemption is ―until but not after‖ the
registration of the certificate of sale with the
Register of Deeds, which in no case shall be
more than three months after foreclosure,
whichever is earlier‖. Since the law mandates
that the registration should be effected not
more than 3 months after the foreclosure,
the redemption cannot be made after the
lapse of three months from the foreclosure of
the mortgaged property.
5.J.8. Writ of possession
A writ of possession is a writ of execution
employed to enforce a judgment to recover the
possession of land. It commands the sheriff to
enter the land and give its possession to the
person entitled under the judgment(Sps. Reyes vs.
Sps. Chung, G.R. No. 228112, September 13, 2017).
It may be issued under the following instances:

1. in land registration proceedings under Section
17 of Act 496;
2. in a judicial foreclosure, provided the debtor is
in possession of the mortgaged realty and no
third person, not a party to the foreclosure
suit, had intervened;
3. in an extrajudicial foreclosure of a real estate
mortgage under Section 7 of Act No. 3135, as
amended; and
4. in execution sales (last paragraph of Section
33, Rule 39 of the Rules of Court)
Under Sections 6 and 7 of Act 3135, as amended
by Act 4118, a writ of possession may be issued
in favor of a purchaser in a foreclosure sale of a
real estate mortgage either within the one-year
redemption period, upon the filing of a bond; or
after the lapse of the redemption period, without
need of a bond(Gopiao vs. Metropolitan Bank and
Trust Co., G.R. No. 188931, July 28, 2014).
Note: In an extrajudicial foreclosure of real
property, the purchaser becomes the absolute
owner thereof if no redemption is made within
one year from the registration of the certificate of
sale by those entitled to redeem.
Possession being an essential right of the owner
with which he is able to exercise the other
attendant rights of ownership, after consolidation
of title, the purchaser in a foreclosure sale may
demand possession as a matter of right (Sps.
Reyes vs. Sps. Chung, G.R. No. 228112, September
13, 2017).
5.J.8.a. Ministerial Duty of the Court
Generally,it is a court‘s ministerial duty to issue
a writ of possession to the new owner upon a
mere ex parte motion(Section 7 of Act No. 3135, as
amended).
It is a well-established rule that the issuance of a
writ of possession to a purchaser in a public
auction is a ministerial function of the court,
which cannot be enjoined or restrained,
evenbythe filing of a civil case for the declaration
of nullity of the foreclosure and consequent
auction sale(Gopiao v. Metropolitan Bank and Trust,
Co. G.R. No. 188931, July 28, 2014).
Purple Notes
Remedial Law
Exceptions:
1.Gross inadequacy of purchase price
2.Third party claiming right adverse to
debtor/mortgagor
3. Failure to pay the surplus proceeds of the sale
to mortgagor(UCPB vs. Nagtalon, G.R. No.
172504, July 31, 2013).
5.J.8.b. Enforcement Against Third Parties
Once title to the property has been consolidated
in the buyer‘s name upon failure of the
mortgagor to redeem the property within the
one-year redemption period, the writ of
possession becomes a matter of right belonging
to the buyer.
Its right to possession has then ripened into the
right of a confirmed absolute owner and the
issuance of the writ becomes a ministerial
function that does not admit of the exercise of
the court‘s discretion (Gopiao vs. Metropolitan Bank
and Trust Co., G.R. No. 188931, July 28, 2014).
However, it cannot be enforced when a writ of
possession was issued for the ouster of third
parties in possession and/or adversely holding
the subject property.
The ex-parte writ could only be rightfully
recognized against the judgment
debtors/mortgagors but not against third parties
who assert a right adverse to the judgment
debtors/mortgagors(id.).
5.J.8.c. Pendency of Action for Annulment
of Sale
The pendency of that action does not and cannot
bar the issuance of a writ of possession to the
mortgagee who has, in the meantime,
extrajudicially foreclosed the mortgaged property
and acquired it as highest bidder in the
subsequent public auction sale. The law is quite
explicit on this point, and the right of the
mortgagee thereunder unquestionable. And
decisions abound applying the law and declaring
it to be the court's ministerial duty to uphold the
mortgagee's right to possession even during the
redemption period(Sps. Ong v. CA, G.R. No. 121494,
June 8, 2000).
Bar Operations C ommissions 257
 Purple Notes
Remedial Law
Note: As a rule, any question regarding the
validity of the mortgage or its foreclosure cannot
be a legal ground for refusing the issuance of a
writ of possession. Regardless of whether or not
there is a pending suit for annulment of the
mortgage or the foreclosure itself, the purchaser
is entitled to a writ of possession, without
prejudice of course to the eventual outcome of
said case. Hence, an injunction to prohibit the
issuance of writ of possession is entirely out of
place(Sps. Ong v. CA, G.R. No. 121494, June 8,
2000).
5.J.9. Annulment of Sale
The act of non compliance of procedures
provided under the Rules of Court and RA 3135,
as amended for the foreclosure of the real estate
mortgage is a ground for the annulment of sale.
5.K. PARTITION
It is the process whereby the co-ownership over
real-property is terminated by vesting in each of
the co-owners a specific property or allotment of
the proceeds or value of the property. (Riguera,
Primer-Reviewer on Remedial Law, Vol. I Civil
Procedure, 2015 Ed., p. 692)
Nature of an action for Partition
An action for partition is once an action for
declaration of co-ownership and for segregation
and conveyance of a determinate portion of the
properties involved. If the defendant asserts
exclusive title over the property, the action for
partition should not be dismissed. But, the court
should resolve the case and if the plaintiff is
unable to sustain his claimed status as a co-
owner, the court should dismiss the action, not
because the wrong remedy was availed of, but
because no basis exists for requiring the
defendant to submit to partition. If, on the other
hand, the court after trial should find the
existence ofco-ownership among the parties, the
court may and should order the partition of the
properties in the same action(Vda. De Daffon v. CA,
et al., G.R. No. 129017, August 20, 2002).
258 Center for Legal Education and Research
Two modes of Partition:
1. Judicial Partition under Rule 69 - when
parties cannot reach an agreement; or,
2. Extrajudicial partition - by agreement of
the parties.
K.1. Who may file complaint; who should
be made defendants
Person who has a right to compel the partition of
estate; All co-owners must be joined. An action
will not lie without the joinder of all co-ownerrs
and other persons having interest in the property
(Riano, Vol. II, p. 329)
Note: As explained the plaintiff is a person who
is supposed to be a co-owner of the property or
estate sought to be partitioned.
Who should be made defendants?
The defendants are all the co-owners who are
indispensable parties (Sepuveda v. Pelaez, G.R. No.
152195, January 31, 2005).
Effect of Non-inclusion of a co-owner
 Before Judgment – not a ground for motion
to dismiss; remedy is to file a motion to
include the party(Divinagracia vs. Parilla, G.R. No.
196750, March 11, 2015).
 After Judgment – judgment is void because
co-owners are indispensable parties(Quilatan
vs. Heirs of Quilatan, G.R. no. 183059, August 28,
2009).
5.K.2. Matters to Alleged in the Complaint
for Partition
1. Nature and extent of the plaintiff‘s title
2. Adequate description of real estate of which
partition is demanded
3. Join as defendants all other persons interested
in the property (Secs. 1 and 3, Rule 69)
Note: He must also include a demand for the
accounting of the rents, profits and other income
from the property which he may be entitled to
(Rule 69, Sec. 8).These cannot be demanded in
another action because they are parts of the
cause of action for partition. They will be barred

if not set up in the same action pursuant to the
rule against splitting a single cause of action.
5.K.3. Two Stages in Every Action of
Partition
 First.Determination of whether or not a co-
ownership in fact exists, and a partition is
proper (i.e., not otherwise legally proscribed)
and may be made by voluntary agreement of
all the parties interested in the property. This
phase may end with a declaration that
plaintiff is not entitled to have a partition
either because the co-ownership does not
exist, or partition is legally prohibited. It may
end, on the other hand, with an adjudgment
that a co-ownership does in truth exist,
partition is proper in the premises and an
accounting of rents and profits received by
the defendant from the real estate in
question is in order xxx.
 Second. Commences when it appears that
"the parties are unable to agree upon the
partition" directed by the court. In that
event, partition shall be done for the parties
by the court with the assistance of not more
than three (3) commissioners. This second
stage may well also deal with the rendition of
the accounting itself and its approval by the
court after the parties have been accorded
opportunity to be heard thereon, and an
award for the recovery by the party or parties
thereto entitled of their just share in the
rents and profits of the real estate in
question. (Municipality of Binan vs. Garcia, G.R.
No. 69260, December 22, 1989)
5.K.4. Order of partition and partition by
agreement
Issued after the court shall determine:
1. Whether or not the plaintiff is truly a co-owner
of the property;
2. That there is indeed a co-ownership among
the parties;
3. That a partition is not legally proscribed, thus
may be allowed.
A final order decreeing partition in accounting
may be appealed by any party aggrieved thereby
(Riano, Vol II, p. 330).
Purple Notes
Remedial Law
Partition by Agreement
After issuance of Order of Partition and the
parties are able to agree, they may make the
partition among themselves by proper
instruments of conveyance: (1)confirmed by the
court; and, (2) recorded in the registry of deeds
of the place in which the property is situated
(Rule 69, Sec. 2).
5.K.5. Partition by commissioners;
appointment of commissioners,
commissioner's report; court action upon
commissioner's report
Appointment of Commissioners
When parties cannot reach an agreement of
partition:
The court shall appoint not more than 3
commissioners of competent and disinterested
persons to make or effect the partition. They
shall make full and accurate report to the court of
all their proceedings as to the partition for the
parties (Sec. 3, Rule 69).
Duties of the commissioners in action for
partition
a. Make a full and accurate report to the court of
all their proceedings as to the partition;
b. The assignment of real estate to one of the
parties; or
c. Thesale of the same(Rule 69, Sec. 6).
Proceedings before commissioner; no
binding effect
No proceeding had before or conducted by the
commissioners shall pass the title to the property
or bind the parties until the court shall have
accepted the report of the commissioners and
rendered judgment thereon(Rule 69, Sec. 6).
Report of the Commissioner
The commissioners shall make a full and accurate
report to the court of all their proceedings as to
the partition, or the assignment of real estate to
one of the parties, or the sale of the same.
Bar Operations C ommissions 259
 Purple Notes
Remedial Law
Upon the filing of such report, the clerk of court Judgment
Contents of Effect of
shall serve copies thereof on all the interested Judgment Judgment
parties with notice that they are allowed ten (10) adequate him(Rule 69, Sec.
days within which to file objections to the description, the 11)..
particular
findings of the report, if they so desire(Rule 69,
portion of the
Sec. 6).
estate assigned
to each
Action of the court upon commissioners’ party(Rule 69,
report (Rule 69, Sec. 7) Sec. 11).
If the whole The judgment To vest in the
Upon the expiration of the period of ten (10) property is shall state the party making the
days to file objections; or,before the expiration of assigned to fact of such payment the
such period but after all the interested parties one of the payment and the whole of the real
parties upon assignment of estate free from
have filed their objections to the report or their
his paying to the real estate any interest on
statement of agreement therewith; and, after the others to the party the part of the
hearing, the court may: (ARSPM) the sum or making the other parties to
sums payment(Rule 69, the action(Rule 69,
1) Accept the report and render judgment in ordered by Sec. 11).. Sec. 11)..
accordance therewith; or, the court.
2) Recommit the same to the commissioners The judgment To vest the real
for further report of facts; or shall state the estate in the
3) Set aside the report and appoint new name of the purchaser or
commissioners; or If the purchaser or purchasers
property is purchasers and making the
4) Accept the report in Part and reject it in
sold and the a definite payment/s, free
part; or sale is description of from the claims of
5) Make such order and render such judgment confirmed by the parcels of any of the parties
the court. real estate sold to the action(Rule
5.K.6. Judgment and Its Effects to each 69, Sec. 11)..
purchaser(Rule
The judgment shall have the effect of vesting in 69, Sec. 11)..
each party to the portion of real estate assigned
ti him (Rule 69, Sec. 11). Note: A case for partition and an action for
quieting of title have identical causes of action
If the whole property is assigned to one of the and can therefore be the subject of res judicata
parties upon his paying to the others the sum/s (Heirs of Gaudine vs. CA, G.R. no. 119879, March 11,
2004).
ordered by the court, the effect of the judgment
shall be yo vest the whole real estate free from
Recording of Judgment
any interest on the part of the other party to the
action.
A certified copy of the judgment shall in either
case be recorded in the registry of deeds of the
If the property is sold and the sale is confirmed
place in which the real estate is situated, and the
by the court, the effect of the judgment shall be
expenses of such recording shall be taxed as part
to vest the real estate in the purchaser/s making
of the costs of the action (Sec. 11, Rule 69).
payment free from all the claims of any parties to
the action.
Contents of Effect of
5.K.7. Partition of personal property
Judgment
Judgment Judgment
The judgment To vest in each The provisions of this Rule shall apply to
If actual partitions of estates composed of personal
shall state party to the act,
partition of
definitely, by in severalty the property, or of both real and personal property, in
property is
made.
metes and portion of the so far as the same may be applicable (Rule 69,
bounds and estate assigned to Sec. 13).

260 Center for Legal Education and Research


5.K.8. Prescription of Action
Prescription of action does not run in favor of a
co-owner or co-heir against his co-owner or co-
heirs as long as there is a recognition of the co-
ownership expressly or impliedly (Art. 494, Civil
Code).
 The action for partition cannot be barred by
prescription as long as the co-ownership
exists (Aguirre vs. CA, G.R. No. 122249, January
29, 2004).
5.K.9. When partition is not allowed?
When acquisitive prescription sets in.Whilethe
action to demand partition of a co-owned
property does not prescribe, a co-owner may
acquire ownership thereof by prescription where
there exists a clear repudiation of the co-
ownership and the co-owners are apprised of the
claim of adverse and exclusive ownership.
Instances when partition may be made but
not at ANY TIME (2010 Bar)
a. There is an agreement among the co-owners
to keep the property undividied for a certain
period of time but not exceeding ten (10)
years;
b. When partition is prohibited by the donor or
testator for a period not exceeding twenty
(20) years (Art. 494 and 1083, NCC);
c. When partition is prohibited by law (Art. 494,
NCC);
d. When property is not subject to physical
division and to do so would render it
unserviceable for the purpose for which it is
intended (Art. 495, NCC);
e. When the condition imposed upon voluntary
heirs before they demand partition has not
yet been fulfilled (Art. 1084, NCC)
5.L.FORCIBLE ENTRY AND UNLAWFUL
DETAINER
5.L.1. Definitions and Distinctions
Three (3) Kinds of Possessory Action on
Real Property
Purple Notes
Remedial Law
Accioninterdictal which is the summary action
for forcible entry and unlawful detainer. It seeks
the recovery of physical possession only and is
brought within one (1) year in the municipal
courts.
Accionpubliciana which is the recovery of the
right to possess and is a plenary action in an
ordinary civil proceeding in the RTC or the MTC in
view of the expanded jurisdiction of the MTC.
Accionreinvidicatoria which is an action to
recover ownership. Normally, it is brought before
the RTC. (Albano, Remedial Law, 2010 Ed., p.755)
Forcible Entry and Unlawful Detainer Action
under Rule 70
Nature and Purpose
Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an
expeditious means of protecting actual
possession or the right to possession of the
property involved. These actions both fall under
the coverage of the Rules on Summary Procedure
irrespective of the amount of damages or unpaid
rentals sought to be recovered (Rule 70, Sec.3).
Venue
Forcible entry and unlawful detainer actions are
actions affecting possession of real property,
hence, are real actions. The venue of these
actions therefore, is the place where the property
subject of the action is situated (Rule 4, Sec. 1).
Nature of Action: Real and In Personam
Forcible entry and unlawful detainer are both real
and in personamactions. It is considered also as
in personambecause the plaintiff seeks to enforce
a a personal obligation on the defendant to
vacate the property subject of the action and
restore physical possession to plaintiff (Domagas
vs. Jensen, G.R. No. 158407, January 17, 2005; Riano,
Vol. II, p. 347).
5.L.2.DISTINGUISH: Forcible Entry,
Unlawful Detainer, AccionPubliciana and
AccionReivindicatoria
Bar Operations C ommissions 261
 Purple Notes
Remedial Law
FORCIBLE ENTRY UNLAWFUL DETAINER All cases of RTC has RTC has
The possession of the The possession of the forcible entry jurisdiction if the jurisdiction if
defendant is unlawful defendant is lawful and unlawful assessed value value of the
from the beginning; from the beginning detainer of the property assessed
issue is which party becomes illegal by irrespective or exceeds P20,000 property
has prior de facto reason of the the amount of outside Metro exceeds
possession; expiration or damages or Mla. P50,000 P20,000
termination of his unpaid rentals within Metro outside Metro
right to the sought to be Mla. MTC has Mla. P50,00
possession of the recovered jurisdiction if within Metro
property under any should be value of the Mla. MTC has
contract, express or brought to the property does jurisdiction if
implied; MTC. not exceed the the value of
The law does not Plaintiff must first above amt. property does
require previous make such demand not exceed
demand for the which is jurisdictional above
defendant to vacate; in nature; amounts.
The plaintiff must The plaintiff need not The basis for The basis of the The basis for
prove that he was in have been in prior the recovery of recovery of the recovery of
prior physical physical possession; possession is possession is the possession is
possession of the the plaintiff‘s plaintiff‘s real ownership
premises until he was right to the right of itself.
deprived by the physical possession or
defendant; and possession of jus possessionis,
The one year period The one-year period is the property which is the
is generally counted counted from the date right to the
from the date of of last demand. possession of
actual entry on the the real property
property. independent of
Defendant‘s Defendant‘s ownership.
Possession was Possession was
acquired by force, acquired by tolerance
 Q: Can the court go beyond the issue of
intimidation, threat, or contract
stealth and strategy forcible entry or unlawful detainer action?

AccionInterd AccionPublicia AccionReinvi A:YES. While it is true that the only issue in
ictal na ndi-catoria forcible entry or unlawful detainer action is
Summary A plenary action An action for
the physical possession or possession de
action for for the recovery the recovery of facto – not possession de jure – yet the court
recovery of of the real right ownership may go beyond that if only to prove the
physical of possession which nature of possession. The court may receive
possession when the necessarily evidence upon the question of title solely for
where dis- dispossession includes the the purpose of determining the character and
possession has has lasted for recovery of extent of possession and damages for the
not lasted for more than one possession. detention (Consing vs. Jamandre, G.R. No. L-
more than one year. 27674,May 12, 1975).
year.
Ejectment
proceeding
5.L.3. Jurisdiction in AccionPubliciana and
under Rule 70; AccionReivindicatoria
either FE or
UD AccionInterd AccionPublic AccionReivindic
ictal iana atoria

262 Center for Legal Education and Research

 Purple Notes
Remedial Law
AccionInterd AccionPublic AccionReivindic Against whom is the action made
ictal iana atoria
Ejectment RTC has RTC has Against the person or persons unlawfully
cases are jurisdiction if jurisdiction if the withholding or depriving possession, or any
within the the assessed assessed value of person or persons claiming under them, for the
exclusive and value of the the property restitution of such possession, together with
original property exceeds P20,000 damages and costs (Rule 70, Sec. 1).
jurisdiction of exceeds outside Metro
the MTC, P20,000 Manila; or, When the right to commenceaction for
MeTC and outside Metro P50,000 within unlawful detainer arises (Rule 70, Sec. 2).
MCTC (Sec. Manila; or, Metro Manila.
33[2], BP 129; exceeds General Rule: When the lessee fails to comply
RA 7691) and P50,000 MTC has with the demand after fifteen (15) days in the
shall be within Metro jurisdiction if
case of land or five (5) days in the case of
governed by Manila. value of the
the rules on property does not
buildings.
summary MTC has exceed the Exception: Unless otherwise stipulated.
procedure jurisdiction if amount above.
irrespective of value of the 5.L.5. Pleadings Allowed
the amount of property does
damages or not exceed The only pleadings allowed to be filed are the
rental sought the amount complaint, compulsory counterclaim and cross-
to be above. claim pleaded in the answer, and the answers
recovered
thereto. All pleadings shall be verified (Rule 70,
(Rule 70, Sec.
Sec. 4).
3).
5.L.6. Action on the Complaint
5.L.4. Who May Institute the Action and
When; Against Whom the Action May be The court may, from an examination of the
Maintained (Rule 70, Sec. 1) allegations in the complaint and such evidence as
may be attached thereto:
The action for forcible entry or unlawful detainer
1) Dismiss the case outright on any of the
may be filed by:
grounds for the dismissal of a civil action
which are apparent therein; or,
1. A person (natural or juridical) deprived of the
2) If no ground for dismissal is found, it shall
possession of any land or building by force,
forthwith issue summons (Rule 70, Sec. 5).
intimidation, threat, strategy, or stealth
(FORCIBLE ENTRY);
5.L.7. When Demand is Necessary
2. A lessor, vendor, vendee, or other person
against whom the possession of any land or
In forcible entry, a demand to vacate is NOT
building is unlawfully withheld after the
required before the filing of the action because
expiration or termination of the right to hold
the occupancy is illegal from the very beginning.
possession, by virtue of any contract, express
or implied (UNLAWFUL DETAINER); or,
In unlawful detainer,as a rule, demand to
3. The legal representatives or assigns of any
vacate is necessary.
such lessor, vendor, vendee, or other person
(UNLAWFUL DETAINER)
Exception: Demand, however, shall NOT be
Period to File required in unlawful detainers when:

The action may be filed in the proper MTC at any  There is a stipulation dispensing with a
time withinone (1) year after such unlawful demand (Art. 1169, Civil Code); or,
deprivation or withholding of possession (Rule 70,  When the ground for the suit is based on the
Sec. 1). expiration of the lease.

Bar Operations C ommissions 263

 Purple Notes
Remedial Law
Ratio: When the lease expires, the cause of
action for unlawful detainer immediately arises.
The lessor can now file an action for ejectment.
As a rule, demand is required only when the
ground for ejectment is failure to pay rent or to
comply with the condition of the lease.
 Q: Is demand to vacate required in case of a
lease on a month-to-month basis?
A: YES. Demand to vacate isrequired when
the lease is on a month-to-month basis to
terminate the lease upon the expiration of
the month in order to prevent the application
of the rule of tacita reconduction or implied
new lease.The acceptance of rentals in
arrears does not constitute WAIVER of
default in payment of rentals (Clutario vs. CA,
G.R. No. 70481, December 11, 1992).
Note:The term VACATE need not be stated if
there are other terms definitively implying that
the tenant should vacate (Golden Gate Realty Corp.
vs. CA, G.R. No. 74289, July 31, 1987).However, this
will not apply incase the term of the demand is
ambiguous (La Campana vs. CA, GR No. L-88246,
une 4, 1993).
Demand, How Made
1. Upon the lessee, by demanding him to pay
or comply with the conditions of the lease
and to vacate;
2. By serving written notice of such demand
upon the person found on the premises;
3. By posting such notice on the premises if no
person be found thereon (Viray vs. CA, G.R.
No. 12076, February 24, 1998); or,
4. By registered mail (Co Keng Kian vs. CA, G.R.
No. 75676, August 29, 1990).
Answer to Complaint
A. Defendant filed an Answer (Sec. 8, Rule 70)
1. Preliminary Conference
Not later than 30 days from the last answer is
filed, a preliminary conference shall be held.
Effect of Failure of the plaintiff to appear
on the preliminary conference
264 Center for Legal Education and Research
This is a cause for the dismissal of the case. The
defendant who appeared in the absence of the
plaintiff shall be entitled to judgment on his
counterclaim. All cross-claims shall be dismissed
(Rule 70, Sec. 8).
2. Issuance of Pre-trial Order
Within five (5) days after the preliminary
conference has been terminated, the court shall
issue a pre-trial order (Rule 70, Sec. 9)
3. Submission of Affidavits
Within ten (10) days from receipt of the order,
parties shall submit affidavits of their witnesses
and their respective position papers (Rule 70, Sec.
10)
4. Rendition of Judgment
Within thirty (30) days from receipt of the
affidavits and position papers, or the expiration of
the period for filing the same, the court shall
render judgment.
During said period, there may be a clarificatory
hearing as the court deems necessary. It may
also require the parties to submit affidavits or
other evidence on the matters to be clarified
within ten (10) days from receipt of an order for
such purpose. In this case, judgment shall be
rendered within fifteen (15) days after the receipt
of the last affidavit or the expiration of the period
for filing the same (Rule 70, Sec. 11)
Defendant failed to file an Answer
If the defendant fails to file an answer after the
lapse of ten (10) days, the court, motu propio or
on motion of the plaintiff, shall render judgment
based on the complaint filed and limited to what
is prayed for therein (Rule 70, Sec. 7).
Judgment
The judgment rendered shall be conclusive only
with rescpect to possession and shalle not bind
the title or affect ownership of the land or
building.(Sec. 18, Rule 70)
5.L.8. Preliminary Injunction and
Preliminary Mandatory Injunction

Preliminary Injunction to prevent further
acts of disposition
The court may grant preliminary injunction in
accordance with Rule 58 of the Rules of Court, to
prevent the defendant from committing further
acts of dispossession against the plaintiff (Rule 70,
Sec. 15).
Preliminary Mandatory Injunction when
case is pending in the MTC
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within
five (5) days from the filing of the complaint,
present a motion for the issuance of a writ of
preliminary mandatory injunction to restore him
in his possession (Rule 70, Sec. 15).
Preliminary Mandatory Injunction when
case is on appeal to the RTC
Upon motion of the plaintiff, within ten (10) days
from the perfection of appeal to the RTC, the
latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession.
Grant of writ of preliminary mandatory injuction
is predicated on court‘s finding that:
1) the defendant‘s appeal is frivolous or dilatory;
or,
2) the appeal of plaintiff is meritorious ( Rule 70,
Sec. 20)
5.L.9. Resolving Defense of Ownership
General Rule: Only issues regarding possession
should be resolved in an ejectment case.
Exception: Question of ownership is necessary
for a proper and complete adjudication of the
issue of possession (Refugia vs. CA, G.R. No.
118284, July 5, 1996)(Sec. 3, R.A. No. 7691).
Binding Effect of Judgment in an Ejectment
Case
General Rule: Third persons are bound by a
judgment in an ejectment case, provided his
possession can be traced from the title of the
defendant, e.g. sublessee.
Purple Notes
Remedial Law
Exceptions:
 The property was acquired before the action;
or,
 The property is covered by a Torrens Title and
the certificate does not state that the property
is subject to a pending action and he bought
the same in good faith.
 Q: Does the assertion of ownership of
disputed property divest the inferior court of
its jurisdiction?
A: NO. The assertion by the defendant of
ownership over the disputed property does
not serve to divest the inferior court of its
jurisdiction. The defendant cannot deprive
the court of jurisdiction by merely claiming
ownership of the property involved (Rural
Bank of Sta. Ignacia vs. Dimatulac, , G.R. No.
142015, April 29, 2003; Perez vs. Cruz,G.R. No.
142503, June 20, 2003).
5.L.10. How to stay the immediate
execution of judgment
Immediate Execution of Judgment (MTC)
General Rule: A judgment rendered by MTC
against the defendant is immediately
executory(Rule 70, Section 21).
Exceptions:
a) Where delay in the deposit is due to fraud,
accident, mistake, or excusable negligence;
b) Where supervening events occur subsequent
to the judgment bringing about a material
change in the situation of the parties which
makes execution inequitable; and,
c) Where there is no compelling urgency for the
execution because it is not justified by the
circumstances(Puncia vs. Gerona, G.R. No.
107640, January 29, 1996).
The defendant must take the following
steps to stay the execution:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the rents,
damages and costs accruing down to the
time of the judgment appealed from; and,
Bar Operations C ommissions 265
 Purple Notes
Remedial Law
3. Deposit periodically with the RTC, during the
pendency of the appeal, the adjudged
amount of rent due under the contract or if
there be no contract, the reasonable value of
the use and occupation of the premises (Rule
70, Sec. 19).
Note: All the above items must concur.
Immediate execution of Judgment (RTC)
The judgment rendered by RTC on appeal,
against the defendant, is immediately executory,
without prejudice to a further appeal that may be
taken therefrom (Rule 70, Sec. 2).
 Q. Is the stay of execution under Rule 70,
Sec. 19 applicable to judgment rendered by
MTC? By RTC?
A.From the foregoing, it is clear that it is only
execution of the Metropolitan or Municipal
Trial Courts‘ judgment pending appeal with
the Regional Trial Court which may be stayed
by a compliance with the requisites provided
in Rule 70, Section 19 of the 1997 Rules on
Civil Procedure. On the other hand, once the
Regional Trial Court has rendered a decision
in its appellate jurisdiction, such decision
shall, under Rule 70, Section 21 of the 1997
Rules on Civil Procedure, be immediately
executory, without prejudice to an
appeal, via a Petition for Review, before the
Court of Appeals and/or Supreme Court (Uy
et al., vs. Santiago et.al., G.R. No. 131237, July
31, 2000).
When to appeal
The mode of appeal is the same as in ordinary
civil action under Rule 40 of the Rules of Court
where a notice of appeal is filed with and docket
fee paid in court of origin, MTC (Riano, Vol. II, p.
364).
5.L.11. Prohibited pleadings and motion
under Rule 70(DBN-REM-PD2IRT)
1. Motion to Dismiss the complaint except on
the ground of lack of jurlsdiction over the
subject matter, or failure to comply with a
266 Center for Legal Education and Research
referral to the LuponTagapamayapa in cases
covered by the LGC;
2. Motion for a Bill of particulars;
3. Motion for New trial, or for reconsideration of
a judgment, or foli reopening of trial;
4. Petition for Relief from judgment;
5. Motion for Extension of time to file
pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for. certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in Default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions
5.M. CONTEMPT
Contemptis the disobedience to the court by
acting in opposition to its authority, justice, and
dignity (Regalado vs. Go, GR No. 167988, February 6,
2007).
Purpose and nature of power
 Q. What is the purpose and nature of
Contempt?
A.The power to punish for contempt is
inherent in all courts; its existence is
essential to the preservation of order in
judicial proceedings and to the enforcement
of judgments, orders, and mandates of the
courts, and consequently, to the due
administration of justice.
The exercise of the power to punish for
contempt has dual aspect, primarily, the
proper punishment of guilty party for his
disrespect to the courts; and secondarily, his
compulsory performance of some act or duty
required of him by the court and which he
refuses to perform.
Contempt of court has been distinctly
described as an offense against the State and
not against the judge personally. To reiterate,
a judge must always remember that the
power of the court to punish for contempt
should be exercised for purposes that are not
 Purple Notes
Remedial Law
personal, because that power is intended as It was ruled that all contempt proceedings
a safeguard, not for judges as persons, but partake of criminal nature. As such, rule on
for the functions they exercise (Rodriguez vs. double jeopardy applies (Yasay, Jr. vs. Recto, G.R.
Bonifacio, A.M. No. RTJ-99-1510, November 6, No. 129521, September 7, 1999).
2000).
Note: NO contemptlies in judgments for money
5.M.1. Kinds of Contempt (Sec. 9)and judgments for specific act (Sec.
10)under Rule 39.
As to MANNER OF COMMISSION:
As to Manner of Commission:
1. Direct contempt in general is committed in
the presence of or so near the court or judge DIRECT INDIRECT
as to obstruct or interrupt the proceedings, Done in the presence of Committed not in the
before the same(Siy vs. NLRC, G.R. NO. 158971 or so near the court or presence of the court or
: August 25, 2005). judge. done at a distance which
tends to belittle ,
2. Indirect contempt is one committed out of degrade, obstruct or
the presence of the court. It is an act done at embarrass the court or
a distance which tends to belittle, degrade, justice (Siy v. NLRC, G.R.
No. 158971, August
obstruct or embarrass the court and justice.
25,2005)
Intent is necessary (Delima vs. Gallardo, G.R.
Summary in nature. Punished only after
Nos. L-41281-82. May 31, 1977). written charge and/or
due hearing.
As to NATURE: If committed against: If committed against:
RTC or court of RTC or court of
1. Civil Contempt consists in failing to do equivalent or higher equivalent or higher rank
something ordered to be done by a court or a rank – fine not – fine not exceeding
judge in a civil case for the benefit of the exceeding P2,000 or P30,000 or imprisonment
opposing party therein(Burgos vs. Macapagal- imprisonment not not exceeding 6 months
exceeding (10) days or or both
Arroyo, G.R. No. 183711, July 5, 2011).
both. MTC – fine not exceeding
MTC – fine not P5,000 or imprisonment
2. Criminal Contempt is a conduct that is exceeding P200 or not exceeding (1) month
directed against the authority and dignity of a imprisonment not or both.
court or of a judge acting judicially, as in exceeding (1) day, or
unlawfully assailing or discrediting the both.
authority and dignity of the court or judge, or Remedy: Remedy:
in doing a duly forbidden act(Burgos vs. (1) Certiorari or (1) The person adjudged
Macapagal-Arroyo, G.R. No. 183711, July 5, prohibition directed for indirect contempt
2011). against the court which may appeal such
adjudged him in direct judgment or final order
contempt to the proper court as in
5.M.2. Purpose and Nature of Each
(2) The execution of criminal cases.
the judgment shall be (2) The execution of the
According to Nature (Riano, Civil Procedure Vol. suspended pending judgment shall NOT be
II, 2016 ed., P.383) resolution of the suspended until a bond is
petition, provided such filed by the person
CRIMINAL CIVIL person files a bond and adjudged in contempt.
Directed against the An offense against the conditioned that he will
authority and dignity of the party in whose behalf the abide by and perform
court or a judge acting violated order was made the judgment should
judicially
the petition be decided
Purpose is to punish Purpose is to compensate against him (Sec. 2,
Criminal prosecution rules is Remedial and civil in nature Rule 71)
strictly applied

Bar Operations C ommissions 267

 Purple Notes
Remedial Law
Note: The distinction is only for the purpose of
imposable penalty.
The judgment against a person adjudged to be in
contempt is immediately executory and can be
stopped only by filing a bond.
Acts deemed punishable as direct contempt
1. Misbehavior in the presence of or so near a
court as to obstruct or interrupt the
proceedings;
2. Disrespect towards the court;
3. Offensive personalities towards others; and,
4. Refusal to be sworn or to answer as witness
or to subscribe an affidavit or deposition
when lawfully required doing so (Rule 71, Sec.
1)
 Pleadings containing derogatory, offensive or
malicious statements when submitted before
a court or judge in which the proceedings are
pending is direct contempt (Dantes vs.
Caguioa, A.M. NO. RTJ-05-1919, June 27, 2005).
5.M.3. Remedy Against Direct Contempt;
Penalty
The remedy is not an appeal but a petition for
certiorari or prohibition directed against the court
which adjudged a person in direct contempt.
Pending the resolution of such petition, the
execution of the judgment for direct contempt
may be performance of the judgment should the
petition be denied.
Penalty for Direct Contempt
a) Where act was committed against the RTC or
an equivalent, or higher rank- Fine not
exceeding two thousand pesos (P2,000.00) or
imprisonment not exceeding ten (10) days, or
both.
b) Where the act was committed against a lower
court, the penalty is a fine not exceeding two
hundred pesos (P200.00) or imprisonment not
exceeding one (1) day, or both.
5.M.4. Remedy Against Indirect Contempt;
Penalty
Appeal from the judgment or final order in the
same manner as in criminal cases.
268 Center for Legal Education and Research
Penalty for Indirect Contempt
a) Where act was committed against the RTC or
an equivalent, or higher rank- Fine not
exceeding Thirty Thousand Pesos
(P30,000.00) or imprisonment not exceeding
six (6) months, or both.
b) Where the act was committed against the
lower court- Fine not exceeding five thousand
pesos (P5,000.00) or imprisonment not
exceeding one (1) month, or both.
c)Where contempt in violation of writ of
injunction, TRO, or status quo order-
Complete restitution tp party injured, as
alleged and proved.
d)Where contempt against person or entity
exercising quasi-judicial functions- Penalty will
depend on the provisions of the law
authorizing penalty of contempt for such
entities.
Appeal from Contempt
The judgment or final order of a court in a case
of indirect contempt may be appealed to the
proper court as in criminal cases. But execution
of the judgment or final order shall not be
suspended until a bond is filed by the person
adjudged in contempt, in an amount fixed by the
court from which the appeal is taken, conditioned
that if the appeal be decided against him he will
abide by and perform the judgment or final order
(Rule 71, Sec. 11).
5.M.5. How Contempt Proceedings are
Commenced
Direct Contempt
No formal proceeding is required to cite a person
in direct contempt. The court may summarily
adjudge one in direct contempt(Encianas vs.
National Bookstore, Inc. G.R. No. 162704, July 28,
2005).
Indirect Contempt
Indirect contempt is to be punished only after a
charge in writing and a hearing (Rule 71, Sec. 3).
However, the requirement of a written charge
and a hearing shall not prevent the Court from

issuing process to bring the respondent into court
or from holding him in custody pending the
proceedings(Rule 71, Sec. 3).
Jurisdiction and Venue for Indirect
contempt(Rule 71, Sec. 5)
The determination where charge for indirect
contempt is to be filed depends upon the LEVEL
of court against which contemptuous act was
committed.
a. When the act is committed against RTC or of
equivalent or higher rank, or officer
appointed by it - File with the said court
b. When the act is commited against a lower
court - File with the RTC of place where
lower court is sitting or to the same lower
court subject to appeal to RTC.
Procedural requisites before the accused
may be punished for indirect contempt:
1. A charge in writing to be field;
2. An opportunity for the person charged to
appear and explain his conduct;
3. To be heard by himself or counsel(Regalado vs.
Go, G.R. No. 167988, February 6, 2007).
Two ways by which a person can be
charged of indirect contempt:
1. Through verified petition; or,
2. By order or formal charge initiated by the
court motu proprio (Rule 71, Sec. 4).
If the charge is initiated motu proprio
It is commenced by an order of the same court
or any formal charge requiring the respondent to
show cause why he should not be punished for
contempt (Riano, Civil Procedure Vol. II, 2016 Ed., p.
376).
If initiated by someone other than the
court
The charge is commenced by verified petition.
The petition shall be accompanied by supporting
particulars and certified true copies of documents
or papers involved therein. It shall likewise
Purple Notes
Remedial Law
comply with the requirements for the filing of
initiatory pleadings for civil actions in the court
concerned (Rule 71, Sec. 4).
Since it is considered an initiatory pleading and
must comply with the requirements for the filing
of initiatory pleadings, the petition must contain a
certification against forum shopping described
under Sec. 5 of Rule 7 (Rule 71, Sec. 4).
NOTE: Procedural requirements are
MANDATORY as contempt proceedings are
treated as criminal in nature (OCA vs. Lerma, A.M.
No. RTJ-07-2076, October 12, 2010, 717-718; Riano,
Vol. II, p. 377).
If the contempt charges arose out of or are
related to a principal action pending in the
court
General Rule: The petition for contempt shall
allege such fact but the petition shall be
docketed, heard and decided separately from the
principal action.
Exception: The court, however, in the exercise
of its discretion, may order the consolidation of
the contempt charge and the principal action for
joint hearing and decision (Rule 71, Sec. 4).
5.M.6. Acts Deemed Punishable as Indirect
Contempt
1) Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
2) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court;
3) Unauthorized intrusion to any real property
after being dispossessed or ejected by
judgment;
4) Any abuse of or any unlawful interference
with the proceedings of a court not
constituting direct contempt;
5) Any improper conduct tending to degrade the
administration of justice;
6) Assuming to be an attorney or an officer of
the court without authority;
7) Failure to obey a subpoena duly served; and
8) Rescue, or attempted rescue, of a person or
property in the custody of an officer. (Rule 71,
Sec. 3)
Bar Operations C ommissions 269
 Purple Notes
Remedial Law
5.M.7. When Imprisonment Shall be
Imposed
When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be
imprisoned by order of the court until he
performs it (Rule 71, Sec. 8).
The punishment is imposed for the benefit of a
complainant or a party to a suit who has been
injured. This is aside from the need to compel
performance of the orders or decrees of the
court, which the contemnor refuses to obey
although able to do so (Riano, Civil Procedure Vol II,
2016 ed. p. 381).
It is only the judge who orders the confinement
of a person for contempt of court who could
issue the Oder of Release (Inoturan vs. Limsiaco Jr.,
A.M. No. MTJ-01-1362, May 06, 2005).
5.M.8. Contempt Against Quasi Judicial
Entities
The rules on contempt under Rule 71 apply to
contempt committed against persons, entities,
bodies or agencies exercising quasi judicial
functions. In case there are rules for contempt
adopted by such bodies or entities pursuant to
law, Rule 71 shall also apply suppletorily(Rule 71,
Sec. 12)
Jurisdiction and Venue For Indirect
Contempt against Quasi Judicial Bodies
The Regional Trial Court of the place wherein the
contempt has been committed shall have
jurisdiction over the charges for indirect
contempt that may be filed (Rule 71, Sec. 12).
Quasi judicial bodies that have the power to cite
the persons for indirect contempt pursuant to
Rule 71 of the Rules of Court can only do so by
initiating them in the proper Regional Trial Court.
It is not within their jurisdiction and competence
to decide the indirect contempt cases. These
matters are still within the province of Regional
Trial Courts.

Summary: Jurisdiction and Venue of Special Civil Actions

SPECIAL CIVIL
JURISDICTION
ACTION
MTC – where the value of the claim or the
personal property does not exceed P200,000
or P400,000 in Metro Manila or where the
value of the real property does not exceed
P20,000 or P50,000 in Metro Manila.
Interpleader
RTC – if the value exceeds the above
amounts or if the subject matter is
exclusively within the jurisdiction of the RTC
(e.g. specific performance, recovery of title)
General Rule:
RTC (Declaratory Relief, Reformation of
instrument and Consolidation of Ownership)
VENUE
Where the plaintiff or any of the principal
plaintiff resides or where the defendant or
any of the principal defendants resides at
the option of the plaintiff
Note: The venue of special civil actions is
governed by the general rules on venue,
except as otherwise indicated in the
particular rule for said special civil action.
Where the petitioner or the respondent
resides

Exception: An action for QUIETING TITLE

Declaratory
(Jurisdiction depends on assessed value of
Relief and
property)
Similar
Remedies
MTC – where the value of the claim or the
personal property does not exceed P200,000
or P400,000 in Metro Manila or where the
value of the real property does not exceed
P20,000 or P50,000 in Metro Manila.

270 Center for Legal Education and Research

 Purple Notes
Remedial Law
SPECIAL CIVIL
JURISDICTION VENUE
ACTION

RTC – if the value exceeds the above

amounts
RTC, CA, SC, Sandiganbayan whether or not RTC of the place where the respondent
in aid of its appellate jurisdiction court, corporation, officer or person is
situated;
Certiorari,
Prohibition,
If petition is filed in the CA, SC or
Mandamus
Sandiganbayan, in which case the location
of the respondent is immaterial (Sec. 4,
Rule 65)
RTC, CA, SC If filed with the SC, or CA, the location of
respondent is immaterial or;

RTC of place where the respondent resides

Quo Warranto or where any of the respondents resides;

However, if the Solicitor General

RTC (Incapable of pecuniary estimation)
(Barangay San Roque vs. Heirs of Pastor, GR
No. 138896, June 20, 2000)
Expropriation
MTC – where the value of the claim or the
personal property does not exceed P200,000
or P400,000 in Metro Manila or where the
value of the real property does not exceed
Foreclosure
P20,000 or P50,000 in Metro Manila.
commences the action, it may be brought in
the RTC in Manila
Where the property is located in case the
subject is a land.
In cases where the subject of expropriation
is personal property, venue is the place
where the plaintiff or defendant resides
Where the land or any part thereof is
located

RTC – if the value exceeds the above

amounts
RTC (Incapable of pecuniary estimation) Where the real property or a portion
thereof is located
Partition
If the subject matter is personal property
(Sec. 13 Rule 69), in the place where the
plaintiff or the defendant resides
Forcible Entry / MTC Where the property is located
Unlawful
Detainer
MTC, RTC, CA, SC Where the contemptuous act was
committed.
Depends on where the contemptuous act
was made:
 Against RTC or of court wth
Indirect equivalent rank or higher rank or
Contempt against officer appointed by said
court—Filed on said Court
 Against lower court (MTC)—Filed
either
1) MTC, appealable to RTC or
2) RTC

Bar Operations C ommissions 271

 Purple Notes
Remedial Law
SPECIAL CIVIL
JURISDICTION VENUE
ACTION

If contemptuous act was against QUASI-

JUDICIAL BODIES: RTC

6. SPECIAL PROCEEDINGS

DEFINITION [Rule 1, Sec. 3(c)]

A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact.

SUBJECT MATTER (Rule 72, Sec. 1)

1. Settlement of estate of deceased persons;

2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus;
9. Change of name;
10. Voluntary dissolution of corporation
11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of family home;
13. Declaration of absence and death; and,
14. Cancellation or correction of entries in the civil registry.

Note: The list is not exclusive. As long as the remedy seeks the establishment of a right, status, or
a particular fact, then such may be called a special proceeding, irrespective of whether it is included
in the foregoing enumeration.

Applicability of rules of civil actions.

- In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings(Sec. 2, Rule 72).

6.A. SETTLEMENT OF ESTATE OF DECEASED

PERSONS

Extrajudicial

a. If only one heir: Affidavit of Self-adjudication

b. If two or more heirs: Deed of Extrajudicial Settlement or Partition (Rule 1, Sec.1)

272 Center for Legal Education and Research

 Purple Notes
Judicial
a. Partition (Rule 69)
b. Summary Settlement of Estate of Small Value
(Rule 74, Sec. 2)
c. Petition for Letters of Administration (Rule 79)
d. Probate of a Will (Rules 75-79)
(i) Petition for Letters Testamentary; or
(ii) Petition for Letters of Administration with
the will annexed (if no executor named in
the will)
6.A.1. Which court has jurisdiction(B.P. Blg.
129, as amended by Sec. 3, R.A. No. 7691)
The Court which has jurisdiction may either be
the Municipal Trial Court or the Regional Trial
Court (Effective April 15, 2004 by virtue of Sec. 5, R.A.
7691):
Remedial Law
The determination of which court exercises
jurisdiction over matters of probate depends
upon the GROSS VALUE of the estate of the
decedent. Rule 73, Section 1 is deemed amended
by BP 129, as amended by R.A. 7691 (Lim vs. CA,
G.R. No. 124715, January 24, 2000).
Exclusionary Rule/Principle of Preferential
Jurisdiction (Rule 73, Sec. 1)
The court first taking cognizance of the
settlement of estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts.
Preference, however, is given in favor of the
court where the estate proceedings, as compared
to intestate proceedings, are held.
6.A.2. Venue in Judicial Settlement of
Estate(Rule 73, Sec. 1)

MTC RTC Decedent is a In the proper Court in

Value of the personal Gross value of the resident of PH at the the province in which
property, estate, or estateexceeds time of his death he resides at the time
amount of the demand Php.300,000.00outsid of his death.
e Metro Manila; Decedent is a non- In the proper Court of
DoesNOTexceedPhp. or,exceedsPhp.400,0 resident of PH at the any province in which
300,000.00 outside 00.00 within Metro time of his death he had estate.
Metro Manila; Manila
or,doesNOTexceedPh Citizenship of the decedent is immaterial in
p.400,000.00 within determining the venue where the estate of
Metro Manila
decedent is settled.
The values indicated in MTC‘s jurisdiction are "Residence" in the context of venue provisions,
exclusive of: means nothing more than a person‘s actual
residence or place of abode, provided he resides
a) interest therein with continuity and consistency (Garcia-
b) damages of whatever kind Quiazon vs. Belen, G.R. No. 189121, July 31, 2013).
c) attorney's fees
d) litigation expenses The term residence should be viewed in its
e) costs popular sense. In this popular sense, the term
means merely residence, that is, personal
Note: The amount of the above items must be residence, not legal residence or domicile.
specifically alleged. They shall also be included in Residence simply requires bodily presence as an
the determination of the filing fees(Sec. 33(1), inhabitant in a given place, while domicile
B.P. Blg. 129, as amended by Sec. 3, R.A. No. 7691). requires bodily presence in that place and also an
intention to make it one‘s domicile. No particular
Where there are several claims or causes of length of time of residence is required though.
actions between the same or different parties, However, the residence must be more than
embodied in the same complaint, the amount of temporary (San Luis vs. San Luis, G.R. No. 133743,
the demand shall be the totality of the claims in February 6, 2007).
all the causes of action, irrespective of whether
the causes of action arose out of the same or The question of residence is determinative only
different transactions (Sec. 33(1), B.P. Blg. 129, as of the venue and does not affect the jurisdiction
amended by Sec. 3, R.A. No. 7691).

Bar Operations C ommissions 273

 Purple Notes
Remedial Law
of the court. Hence, the institution of the
proceeding in the province wherein the decedent
neither had residence nor estate does not vitiate
the action of the probate court(Cuenco vs. CA, G.R.
No. L-24742, October 26, 1979).
6.A.3. Extent of jurisdiction of probate
court
The main function of a probate court is to settle
and liquidate the estates of deceased persons
either summarily or through the process of
administration (Uy vs. CA, G.R. No. 167979, March
15, 2006).
Limited and Special Jurisdiction
The Court, in citing the case of Coca vs.
Borromeo held that the question of whether a
particular matter should be resolved by the CFI in
the exercise of its general jurisdiction or of its
limited probate jurisdiction is in reality not a
jurisdictional question. In essence, it is a
procedural question involving a mode of practice
"which may be waived." (Romero vs. CA, G.R. No.
188921, April 18, 2012).
General Rule: Questions of title may be passed
on provisionally, but the final determination of
the ownership of the property must be threshed
out in a separate civil action and not in the
probate court (Aranas vs. Mercado, G.R. No. 156407,
January 12, 2014).
The general rule is that the jurisdiction of the trial
court, either as a probate or an intestate court,
relates only to matters having to do with the
probate of the will and/or settlement of the
estate of deceased persons, but does not extend
to the determination of questions of ownership
that arise during the proceedings. The patent
rationale for this rule is that such court merely
exercises special and limited jurisdiction (Agtarap
vs. Agtarap, G.R. No. 177099, June 8, 2011).
Exceptions:
1. In an intestate or a testate proceeding, the
probate court may provisionally pass upon
the question of inclusion in, or exclusion
from, the inventory of a piece of property
without prejudice to the final determination
of ownership in a separate action (Agtarap vs.
Agtarap, G.R. No. 177099, June 8, 2011).
274 Center for Legal Education and Research
2. If the interested parties are all heirs to the
estate, or the question is one of collation or
advancement, or the parties consent to the
assumption of jurisdiction by the probate
court and the rights of third parties are not
impaired, then the probate court is
competent to resolve issues on ownership.
Verily, its jurisdiction extends to matters
incidental or collateral to the settlement and
distribution of the estate, such as the
determination of the status of each heir and
whether the property in the inventory is
conjugal or exclusive property of the
deceased spouse (Agtarap vs. Agtarap, G.R. No.
177099, June 8, 2011).
Exclusive
Once a special proceeding for the settlement of
the estate of a decedent is filed in one of such
courts, that court has exclusive jurisdiction over
said estate and no other special proceedings
involving the same subject matter may be filed
before any other court (Romero vs. CA, G.R. No.
188921, April 18, 2012).
6.A.4. Powers and Duties of Probate Court:
1. Order the probate of the will of the decedent
(Rule 77, Sec. 3);
2. Determine heirs (Solivio vs. CA,G.R. No. 83484,
February 12, 1990);
3. Distribute estate;
4. Grant letters of administration of the party
best entitled thereto to any qualified
applicant (Rule 79, Sec. 5);
5. Supervise and controls all acts of
administration;
6. Hear and approve claims against the estate
of the deceased (Rule 86, Sec. 11);
7. Order payment of lawful debts (Rule 77, Sec.
3);
8. Authorize sale, mortgage or any
encumbrance of real estate (Rule 89, Sec. 2);
9. Directs the delivery of the estate to those
entitled thereto (Rule 90, Sec. 1);
10. Issue warrants and processes necessary to
compel the attendance of witnesses or to
carry into effect their orders and judgments,
and other powers granted them by law (Rule
73, Sec. 3);
11. Issue a warrant for the apprehension and
imprisonment of a person who defies a
 Purple Notes
probate order, until he performs such order
or judgment, or is released (Rule 73, Sec. 3);
12. Act as a trustee and guard the estate, and
see to it that it is wisely and economically
administered, not dissipated (Timbol vs.
Cano,G.R. No. L-15445, April 29, 1961)
6.B. SUMMARY SETTLEMENT OF ESTATES
Kinds of Summary Settlement of Estates
a) Extrajudicial Settlement - Parties may,
without securing letters of administration
from the court, divide the estate among
themselves as they see fit(Rule 74, Sec. 1).
b) Judicial Settlement
6.B.1Extrajudicial Settlement (ES)
Modes: (Rule 74, Sec. 1)
a) Ifsole heir: Affidavit of Self-adjudication (of
the whole estate)
b) If more than one heir: Deed of Extrajudicial
Settlement or Partition
How executed:
a) By means of a public instrument – If there
are two or more heirs.
b) By means of an affidavit – If there is only
one heir
c) By a stipulation in an ordinary action for
partition – If there are disagreements
between heirs.
The form of the extrajudicial settlement depends
on the number of heirs (Vda. de Dela Rosa vs. Heirs
of Vda. de Damian, G.R. No. 155733, January 27,
2006).
Requisites (Rule 74, Sec. 1)
1. Decedent left no will;
2. Left no outstanding debts at the time of the
settlement;
3. Heirs are all of legal age or the minors are
represented by their judicial guardians or
legal representatives duly authorized for the
purpose;
4. The settlement, whether by public
instrument, or by stipulation in a pending
action for partition or affidavit, is duly filed
with the Register of Deeds;
Remedial Law
5. Publication in newspaper of general
circulation in the province once a week for
three (3) consecutive weeks;
6. Filing of bond equivalent to value of personal
property posted with the Register of Deeds.
Note: A bond is required only when personal
property is involved (Rule 74, Sec. 3). Real estate
is subject to lien in favor of creditors, heirs or
other persons for two (2) years from distribution
of estate, notwithstanding any transfer of real
estate that may have been made (Rule 74, Sec. 4).
Rule 74, Section 1 is an exception to the general
rule that when a person dies leaving a property,
it should be judicially administered and the
competent court should appoint a qualified
administrator, in the order established in Sec. 6,
Rule 78 in case the deceased left no will, or in
case he did, if he failed to name an executor
therein (Portugal vs. Portugal-Beltran, G.R. No.
155555, Aug. 16, 2005).
The Rules provide that only in cases where the
decedent left no will that his estate may be
extrajudicially settled. Thus, it is incorrect to say
that the estate of a decedent who died intestate
may be extrajudicially settled, since intestacy
may arise even if there is a will.
6.B.2 Two-year prescriptive period
Heirs or persons deprived of lawful participation
in the estate may compel settlement of estate
within 2 years from settlement and distribution.
A lien shall be constituted on the real property of
the estate and together with the bond, it shall be
liable to creditors, heirs or other persons for a full
period of 2 years after such distribution. Such lien
will not be cancelled before the lapse of two
years even if a distributee offers to post bond to
answer for contingent claims (Rebong v. Ibanez,
G.R. No. L-1578, September 30, 1947).
Effect of lack of registration when there are
no creditors
Lack of registration of extrajudicial settlement
does not affect its validity when there are no
creditors or when the rights of creditors are not
involved (Vda. De Reyes vs. CA, G.R. 92436, July 26,
1991).
Bar Operations C ommissions 275
 Purple Notes
Remedial Law
Rationale: The object of registration is to serve
as constructive notice, and this means notice to
others. It must follow that the instrinsic validity of
partition not executed with the prescribed
formalities does not come into play when there
are no creditors or the rights of creditors are not
affected (Hernandez vs. Andal, G.R. No. L-273, March
29, 1947).
Oral partition allowed
of the estate so awarded by them respectively
(Rule 74, Sec. 2).
6.B.4 Summary settlement of estate of
small value, when allowed
Allowed whenever the gross value of the estate
of a deceased person, whether he died testate or
intestate, does not exceed ten thousand
pesos(Rule 74, Sec. 2).

There is nothing in Section 1, Rule 74 from which
it can be inferred that a written instrument or
other formality is an essential requisite to the
validity of the partition. Accordingly, on oral
partition is valid (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p.33, 2015
ed.).
Decedent left no debts, when presumed
Unlike extrajudicial settlement, summary
settlement of estate may be chosen by the heirs
whether the decedent died testate or intestate
(De Leon and Wilwayco, Special Proceedings Essentials
for Bench and Bar, p.35, 2015 ed.).
Summary settlement is allowed even if there are
debts. This is jurisdictional (Del Rosario vs.
Conanan, L-37903, March 30, 1977).

It is presumed that the decedent left no debts if Requisites:

no creditor filed a petition for letters of
administration within two (2) years after the
death of the decedent (Rule 74, Sec.1).
6.B.3 Affidavit of Self-adjudication by Sole
Heir
(Rule 74, Sec.1)
The provision is clear that an affidavit of self-
adjudication is allowed only where the decedent
left a sole heir (Vda. de Dela Rosa vs. Heirs of Vda.
de Damian, G.R. No. 155733, Jan. 27, 2006).
Judicial Settlement
Types of Judicial Settlement
1. Summary settlement of estates of small value
2. By petition
1. Petition filed by an interested person;
2. Notice which shall be published once a week
for three (3) consecutive weeks in a
newspaper of general circulation in the
province and such other notice to interested
persons as the court may direct;
3. Hearing which shall be held not less than one
(1) month nor more than three (3) months
from the date of the last publication of the
notice;
4. The complaint must allege that the gross
value of the estate of the deceased does not
exceed Php. 10,000.00; and,
5. A bond duly filed in an amount fixed by the
court.(De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p.35-
36, 2015 ed.).

Summary settlement of estates of small Distinction between extrajudicial

value is a judicial proceeding wherein, without settlement (ES) and summary settlement of
the appointment of executor or administrator, estates of small value (SS):
and without delay, the competent court
summarily proceeds to value the estate of the Extrajudicial Summary Settlement
decedent; ascertain his debts and order payment Settlement
thereof; allow his will if any; declare his heirs, No court intervention Judicial adjudication is
devisee and legatees; and distribute his net necessary although the
estate among his known heirs, devisees, and nature of the proceeding
legatees, who shall thereupon be entitled to is summary
receive and enter into the possession of the parts Value of estate Gross value of the
immaterial estate must not exceed

276 Center for Legal Education and Research

 Purple Notes
Php.10,000.00
Allowed only when Allowed in both testate
there is no will and intestate succession
There must be no Available even if there
outstanding debts at are debts
the time of the
settlement of the estate
Resorted to at the May be instituted by any
instance of and by interested party, even a
agreement of all heirs creditor of the estate
without the consent of
all the heirs
Amount of bond is Amount of bond is to be
equivalent to the value determined by the court
of the personal property
(De Leon and Wilwayco, Special Proceedings Essentials
for Bench and Bar, p.37, 2015 ed.)
6.B.5 Remedies of aggrieved parties after
extrajudicial settlement of estate
1. Compel settlement of the claim and execute
against the bond or real estate - If it shall
appear at any time within 2 years after the
settlement and distribution that an heir or
other person has been unduly deprived of his
lawful participation in the estate, he may
compel the settlement of the estate in the
court having jurisdiction of the estate. Such
court may issue an order to settle the
amount of such debts or lawful participation
and order how much and in what manner
each distributee shall contribute in the
payment thereof, and may issue execution, if
circumstances require, against the bond
provided in the preceding section or against
the real estate belonging to the deceased, or
both (Rule 74, Sec. 4).
2. Action for Rescission - A partition may be
rescinded or annulled for the same causes as
contracts (Art. 1097, NCC). A partition, judicial
or extra-judicial, may also be rescinded on
account of lesion, when any one of the co-
heirs received things whose value is less, by
at least one-fourth, than the share to which
he is entitled, considering the value of the
things at the time they were adjudicated (Art.
1098, NCC).
3. The creditor may ask for administration of
enough property of the estate sufficient to
pay the debt, but the heirs cannot prevent
such administration by paying the obligation
(McMicking vs. SyConbieng, G.R. No. L-6871,
January 15, 1912).
Remedial Law
4. After the lapse of the two–year period, an
ordinary action may be instituted against the
distributees within the statute of limitations,
but not against the bond.
5. The action to annul a deed of extrajudicial
settlement on the ground of fraud should be
filed within four years from the discovery of
the fraud (Gerona vs. De Guzman, L-19060, May
29, 1964).
6. Action for reconveyance
General Rule: The prescriptive period for non-
participants is 10 years from the date of
registration or from date of actual discovery if
registration was made in bad faith, because it is
based on implied constructive trust. Being an
obligation created by law, it prescribes in 10
years (Art. 1144, par. 2, Civil Code).
Exception: Action for reconveyance is
imprescriptible if plaintiff is in possession of the
property. When the party seeking reconveyance
based on implied or constructive trust is in actual,
continuous and peaceful possession of the
property involved, prescription does not
commence to run against him because the action
would be in the nature of a suit for quieting of
title, an action that is imprescriptible(Uy vs. Court
of Appeals, 173186, September 16, 2015).
When plaintiff (legal owner) is in possession of
the land to be reconveyed and not the defendant
registered owner, the action based on fraud is
imprescriptible as long as the land has not passed
to an innocent purchaser for value (Heirs of
Saludares vs. CA, G.R. No. 128254, January 16, 2004).
7. Petition for Relief (Rule 38)
6.C. PRODUCTION AND PROBATE OF WILLS
Before any will can have force or validity, it must
be probated. Until admitted to probate, a will has
no effect whatsoever and no right can be claimed
thereunder(SpsPascual vs. CA, G.R. No. 115925,
August 15, 2003).
6.C.1. Nature of probate proceeding
1. It is a proceeding in rem. It cannot be
dispensed with and substituted by another
proceeding, judicial or extrajudicial, without
offending public policy.
Bar Operations C ommissions 277
 Purple Notes
Remedial Law
2. It is mandatory.No will shall pass either real or
personal property unless proved and allowed
in accordance with the Rules(Guevara vs.
Guevara,G.R. No. 48840, December 29, 1943).
3. It is imprescriptible, because it is required by
public policy.
4. Doctrine of Estoppel does not apply. The State
could not have intended to defeat the same
by applying thereto the statute of limitation of
actions(Fernandez v. Dimagiba, G.R. No. L23638,
1967).
6.C.2. Who may petition for probate;
persons entitled to notice
The following are the persons who may petition
for probate under Sec. 1, Rule 76 (DELTA)
a) Devisee – need not be a relative of the
decedent
b) Executor
c) Legatee – need not be a relative of the
decedent
d) Any other interested person – heir; creditor
An "interested person" has been defined as
one who would be benefited by the estate,
such as an heir, or one who has a claim
against the estate, such as a creditor. The
interest must be material and direct, and not
merely indirect or contingent (San Luis vs. San
Luis, G.R. No. 133743, February 6, 2007).
e) Testator – during his lifetime
General Rule: Petition for probate is filed after
the testator‘s death.
Exception: The will may be admitted to probate
during the testator‘s lifetime.
Note: The petition for probate filed during the
testator‘s lifetime may only be initiated by the
testator himself (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p.60, 2015
ed.).
The following are the persons entitled to
personal notice:
1. Heirs
2. Legatees
3. Devisees
278 Center for Legal Education and Research
The following are the persons which may
be notified by mail or personally:
1. Heirs
2. Legatees
3. Devisees
4. Executor
a. Person named as executor (if he is not
petitioner)
b. Person named as co-executor not
petitioning
Notice to designated heirs, legatees and devisees
is jurisdictional when they are known AND their
place of residence are known (De Arranz vs. Galing,
G.R. No. 77047, May 28, 1988).
Notice is required to be personally given to
known heirs, legatees, and devisees of the
testator (Rule 76, Sec. 4). A perusal of the will
shows that respondent was instituted as the sole
heir of the decedent. Petitioners, as nephews and
nieces of the decedent, are neither compulsory
nor testate heirs who are entitled to be notified
of the probate proceedings under the Rules.
Respondent had no legal obligation to mention
petitioners in the petition for probate, or to
personally notify them of the same (Alaban vs. CA,
G.R. No. 156021, September 23, 2005).
6.D. ALLOWANCE OR DISALLOWANCE OF
WILLS
6.D.1. Contents of petition for allowance of
will
a. The jurisdictional facts, as follows:
i. Testator‘s death
ii. Testator‘s residence at the time of death
iii. The place where the testator left estate,
if he is a non-resident
iv. That the will has been delivered to the
court and is in the possession thereof,
unless not yet delivered
v. The value of the estate to determine the
court with jurisdiction(De Leon and
Wilwayco, Special Proceedings Essentials for
Bench and Bar, p. 60-61, 2015 ed.).
b. The names, ages, and residences of the
heirs, legatees, and devisees of the testator
or decedent;
c. The probable value and character of the
property of the estate;
 Purple Notes
Remedial Law
d. The name of the person for whom letters are testator (Rule 76,
prayed; Sec.11).
e. If the will has not been delivered to the
court, the name of the person having custody Four-Witness Rule Contested notarial will.
The four witnesses
of it.
include the three
instrumental witnesses
But no defect in the petition shall render void the and the notary public
allowance of the will, or the issuance of letters who subscribed the
testamentary or of administration with the will execution of the will.
annexed (Rule 76, Sec. 2).
6.D.3. Reprobate; requisites before will
6.D.2. Grounds for disallowing a will proved outside allowed in the Philippines;
effects of probate
a) The will was not executed and attested as
required by law; Reprobate / Re-authentication
b) The testator was insane, or otherwise
mentally incapable to make a will, at the time Wills proved and allowed in a foreign country,
of execution; according to the laws of such country, may be
c) The will was executed under duress, or the allowed, filed and recorded by the proper court in
influence of fear, or threats; the Philippines (Rule 77, Sec. 1).
d) The will was procured by undue and
improper pressure and influence, on the part Doctrine of processual presumption
of the beneficiary, or of some other person
for his benefit; Where a foreign law is not pleaded or, even if
e) The signature of the testator was procured pleaded, is not proved, the presumption is that
by fraud or trick, and he did not intend that the foreign law is the same as Philippine law (ATCI
the instrument should be his will at the time Overseas Corporation vs. Etchin, G.R. No. 139868,
of fixing signature thereto (Rule 76, Sec. 9). June 8, 2006)

No-Witness Rule Application is filed by Requisites before a will proved abroad

the testator of the
would be allowed in the Philippines
holographic will himself.
One-Witness Rule Uncontested notarial
will. 1. Due execution of the will in accordance with
The witness shall the foreign laws;
establish that the will is 2. The testator has his domicile in the foreign
entirely dated and country and not in the Philippines;
signed by the hand of 3. The will has been admitted to probate in
the testator (Rule 76, such foreign country;
Sec.6). 4. The fact that the foreign tribunal is a probate
Two-Witness Rule Lost or destroyed will. court; and
When a will is lost or
5. The laws of a foreign country on procedure
destroyed, two credible
witnesses must establish
and allowance of wills (Vda. de Perez vs. Tolete,
is existence and
G.R. No. 76714, June 2, 1994).
execution.
Three-Witness Rule Contested holographic Effects of Probate
will.
At least three (3) a) If it appears at the hearing that the will
witnesses who know the should be allowed in the Philippines, the
handwriting of the court shall so allow it, and a certificate of its
testator shall explicitly allowance, signed by the judge, and attested
declare that the will and by the seal of the court, to which shall be
the signature are in the
attached a copy of the will, shall be filed and
handwriting of the

Bar Operations C ommissions 279

 Purple Notes
Remedial Law
recorded by the clerk, and the will shall have Who may administer the estate of a deceased
the same effect as if originally proved and person?
allowed in such court (Rule 77, Sec. 3).
b) When a will is thus allowed, the court shall a) Executor
grant letters testamentary, or letters of b) Administrator
administration with the will annexed, and
such letters testamentary or of administration Executor Administrator
shall extend to all the estate of the testator in When Appointed
the Philippines (Rule 77, Sec. 4). A person was a. If no executor is named
c) If the will was duly executed, a certificate of expressly named by in the will;
its allowance, signed by the judge, and the deceased in b. The person named in the
his/her will, who is will:
attested by the seal of the court, shall be
competent, accept the i. Incompetent;
attached to it. The will and certificate shall be trust, and gives bond, ii. Refuse the trust;
filed and recorded by the clerk. Attested and subsequently or
copies of the will devising real estate and of appointed by the iii. Fail to give bond.
certificate of allowance thereof, shall be court. (Sec. 4, Rule
recorded in the register of deeds of the 78) c. The will was disallowed or
province in which the lands lie(Rule 76, Sec. void.
13). d. A person died intestate.
(Rule 78, Sec. 6)
BOND
� The general rule universally recognized is that
The testator may Required to give a bond.
administration extends only to the assets of
direct in his will that (Sec. 1, Rule 81)
the decedent found within the state or country the executor will serve
where it was granted, so that an administrator without bond, but the
appointed in one state or country has no court shall direct him
power over the property in another state or to post a bond
country (Leon &Ghezzi vs. Manufacturer‘s Life conditioned only to
Ins., G.R. No. L-3677, November 29, 1951). pay debts. (Rule 81,
Sec. 2)
Principal administration vs. Principal DUTY TO PRESENT THE WILL
administration Has duty to present No such duty.
the will to court within
30 days.
� When a person dies intestate owning property
in the country of his domicile as well as in
Who may serve as executor or
foreign country, administration shall be had in
administrator:
both countries. That which is granted in the
jurisdiction of the decedent‘s domicile is
Any competent person may serve as executor or
termed the principal administration, while
administrator.(Rule 78, Sec.1)
any other administration is termed ancillary
administration. The ancillary administration
is proper whenever a person dies leaving in a
May a married woman serve as
country, other than that of his domicile,
administrator?
property to be administered in the nature of
assets of the decedent liable for his individual
Yes. A married woman may serve as executrix or
debts or to be distributed among his heirs
(Johannes vs. Harvey,G.R. No. 18600, March 9, administratrix, and the marriage of a single
1922). woman shall not affect her authority so to serve
under a previous appointment (Rule 78, Sec.3).
6.E. LETTERS TESTAMENTARY AND OF
ADMINISTRATION The following are incompetent to serve as
6.E.1. When and to whom letters of executor or administrator:
administration granted
1. Minor;

280 Center for Legal Education and Research

 Purple Notes
Remedial Law
2. Not a resident of the Philippines; and Letters of Administration with the will
3. A person who is in the opinion of the court annexed:
unfit to execute the duties of the trust by It is the appointment issued by the probate court
reason of: to a person, other than the executor named in
the will, to administer the estate of the deceased
a. Drunkenness testator if the executor named in the will is
b. Improvidence incompetent, refuses the trust, or fails to give a
c. Want of understanding or integrity; or bond, or when the will does not contain a
d. Conviction of an offense involving moral designation of an executor. (Rule 76, Sec. 6;Rule
turpitude. (Rule 78, Sec.1) 79, Sec. 1)

4. Executor of an executor cannot, as such, 6.E.2. Order of preference(Rule 78, Rule 6)

administer estate of the first testator (Rule 78,
Sec. 2) 1. Surviving spouse, or next of kin, or both, in
the discretion of the court, or to such person
Other grounds for incompetence: as the surviving spouse, or next of kin
requests to have appointed, if competent and
In this jurisdiction, one is considered to be willing to serve.
unsuitable for appointment as administrator when 2. If those previously enumerated be
he has adverse interest of some kind or hostility incompetent or unwilling, or if the husband or
to those immediately interested in the estate (Lim widow, or next of kin, neglects for thirty (30)
vs. Diaz-Millarez, G.R. No. L-17633, October 19, 1966). days after the death of the person to apply for
administration or to request that
Letters Testamentary and Letters of administration be granted to some other
Administration person, one or more of the principal creditors,
if competent and willing to serve.
Letters Letters of Letters of 3. If there is no such creditor, such other person
Testamentary Administration Administration as the court may select (Rule 78, Rule 6).
with will
Annexed Definition of ―Next of Kin‖
When issued
Appointment Authority issued Appointment When the law speaks of "next of kin", the
issued by a by issued by a
reference is to those who are entitled, under the
probate a court to a court to an
court, after the competent administrator to statute of distribution, to the decedent‘s
will has been person to administer the property; one whose relationship is such that he
admitted to administer the estate if the is entitled to share in the estate as distributed,
probate, to the estate if: decedent died or, in short, an heir.
executor i. No executor intestate.
named in the named in the In resolving, therefore, the issue of whether an
will to will; applicant for letters of administration is a next of
administer the ii. executor or kin or an heir of the decedent, the probate court
estate of the executors
perforce has to determine and pass upon the
deceased named are
testator, incompetent, issue of filiation. A separate action will only result
provided the refuse the trust, in a multiplicity of suits(Angeles vs. Maglaya,G.R.
executor or fail to give No. 153798,September 2, 2005).
named in the bond; (Rule 78,
will is Sec. 6) Note:
competent, The
a. paramount consideration in the appointment
accepts the of an administrator over the estate of a decedent
trust and gives is the prospective administrator‘s interest in the
a bond. (Rule estate. This is the same consideration which
78, Sec. 4)
Section 6, Rule 78 takes into account in

Bar Operations C ommissions 281

 Purple Notes
Remedial Law
establishing the order of preference in the
appointment of administrator for the estate. The
rationale behind the rule is that those who will
reap the benefit of a wise, speedy and
economical administration of the estate, or, in the
alternative, suffer the consequences of waste,
improvidence or mismanagement, have the
highest interest and most influential motive to
administer the estate correctly. In all, given that
the rule speaks of an order of preference, the
person to be appointed administrator of a
decedent‘s estate must demonstrate not only an
interest in the estate, but an interest therein
greater than any other candidate(Suntay vs.
Cojuangco-Suntay, G.R. No. 183053, October 10,
2012).
Does the order of preference apply in the
appointment of a Special Administrator?
No. The preference under Section 6, Rule 78 of
the Rules of Court for the next of kin refers to the
appointment of a regular administrator, and not
of a special administrator, as the appointment of
the latter lies entirely in the discretion of the
court, and is not appealable. Not being
appealable, the only remedy against the
appointment of a special administrator is
Certiorari under Rule 65 of the Rules of Court(Tan
vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008).
Court may disregard the order of
preference
General Rule: It is well settled that a probate
court cannot arbitrarily and without sufficient
reason disregard the preferential rights of the
surviving spouse to the administration of the
estate of the deceased spouse.
Exception:But, if the person enjoying such
preferential rights is unsuitable, the court may
appoint another person. The determination of a
person‘s suitability for the office of administrator
rests, to a great extent, in the sound judgment of
the court exercising the power of appointment
and such judgment will not be interfered with on
appeal unless it appears affirmatively that the
court below was in error (Uy v. CA, et al., G.R. No.
167979, March 16, 2006).
When can Co-Administrators be appointed?
282 Center for Legal Education and Research
Jurisprudence allows the appointment of co-
administrators under certain circumstances, to
wit:
a. to have the benefit of their judgment and
perhaps at all times to have different interests
represented;
b. b)where justice and equity demand that
opposing parties or factions be represented in
the management of the estate of the
deceased;
c. where the estate is large or, from any cause,
an intricate and perplexing one to settle;
d. to have all interested persons satisfied and
the representatives to work in harmony for
the best interests of the estate; and
e. when a person entitled to the administration
of an estate desires to have another
competent person associated with him in the
office(Suntay vs. Cojuangco-Suntay, G.R. No.
183053, October 10, 2012).
6.E.3. Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration
Person allowed to oppose the issuance of
letters testamentary
Any person interested in a willmay state in
writing the grounds why letters testamentary
should not issue to the persons named therein as
executors, or any of them, and the court, after
hearing upon notice, shall pass upon the
sufficiency of such grounds (Rule 79, Sec. 1)
Meaning of ―Interested Person‖
One who would be benefited by the estate, such
as an heir, or one who has a claim against the
estate, such as a creditor, and whose interest is
material and direct, not merely incidental or
contingent (Maloles vs. Phillips, G.R. Nos. 129505 &
133359, January 31, 2000).
Grounds
a.) Incompetency of the person/s for whom
letters are prayed, or
b.) Contestant‘s own right to the
administration(Sec. 4, Rule 79)
(ex. preferential right under Rule 78, Sec 6)
 Purple Notes
Contents of Petition for Letters of
Administration
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs,
and the names and residences of the
creditors, of the decedent;
3. The probable value and character of the
property of the estate;
4. The name of the person for whom letters of
administration are prayed. (Rule 79, Sec. 2)
Note: No defect in the petition shall render void
the issuance of letters of administration (Rule 79,
Sec. 2)
Notice and Publication
The Court shall fix the time and place for hearing
and shall cause notice thereof to be given to the
known heirs and creditors of the decedent and to
any other persons believed to have an interest in
the estate. (Rule 79, Sec. 3)
Where no notice as required by Section 3, Rule
79 of the Rules of Court has been given to
persons believed to have an interest in the estate
of the deceased person; the proceeding for the
settlement of the estate is void and should be
annulled. The requirement as to notice is
essential to the validity of the proceeding in that
no person may be deprived of his right to
property without due process of law (De Guzman
vs. Angeles, G.R. No. 78590, June 20, 1988).
Simultaneous Filing of Petition for
Administration
The person opposing to petition for
administration may pray that the letters issue to
himself, or to any competent person or persons
named in the opposition (Rule 39, Sec. 4).
Hearing and order for letters to issue
It must be first shown that notice has been given
to interested persons, and thereafter the court
shall hear the proofs of the parties in support of
their respective allegations, and if satisfied that
the decedent left no will, or that there is no
competent and willing executor, it shall order the
Remedial Law
issuance of letters of administration to the party
best entitled thereto (Rule 79, Sec. 5).
Letters of Administration granted to
applicant
Letters of administration may be granted to any
qualified applicant, though it appears that there
are other competent persons having a better
right to the administration, if such persons fail to
appear when notified and claim the issuance of
letters to themselves (Rule 79, Sec. 6).
6.E.4. Powers and duties of executor and
administrators; restrictions on the powers
Duty to Post a Bond
Before an executor or administrator enters upon
the execution of his trust, and letters
testamentary or of administration issue, he shall
give a bond in such sum as the court directs (Rule
81, Sec. 1).
Purpose of the Bond
The administration bond is for the benefit of the
creditors and the heirs, as it compels the
administrator, whether regular or special, to
perform the trust reposed in, and discharge the
obligations incumbent upon, him. Its object and
purpose is to safeguard the properties of the
decedent. Moreover, the ability to post the bond
is in the nature of a qualification for the office of
administration(Ocampo vs. Ocampo, G.R. No.
187879, July 5, 2010).
Conditions of the Executor’s or
Administrator’s Bond:
1.To make and return to the court, within three
(3) months, a true and complete inventoryof
the estate of the deceased which shall come
to his possession or knowledge or to the
possession of another person for him;
2.To administer according to the Rules of Court,
and, if an executor, according to the will of
the testator, the estate which shall at any
time come to his possession or to the
possession of any person for him; and
Bar Operations C ommissions 283
 Purple Notes
Remedial Law
3. Pay and discharge all debts, legacies, and
charges on the same, or such dividends
thereon as shall be decreed by the court;
4. To render a true and just account of his
administration to the court within one (1)
year, and at any time required by the court;
and
5. To perform all orders of the court by him to be
performed. (Rule 81, Sec. 1).
Circumstances where the executor or
administrator may enter upon his trust
without a bond or be required to post
additional bond
If the testator in his will directs that the executor
serve without bond, or with only his individual
bond, he may be allowed by the court to give
bond in such sum and with such surety as the
court approves conditioned only to pay the debts
of the testator; but the court may require of the
executor a further bond in case of a change in his
circumstances, or for other sufficient cause, with
the conditions named in the last preceding
section. (Rule 81, Sec. 2).
Bond of joint executors and administrators
When two or more persons are appointed
executors or administrators the court may take a
separate bond from each, or a joint bond from
all. (Rule 81, Sec. 3)
Conditions of the bond of a Special
Administrator
1. That he will make and return a true inventory
of the goods, chattels, rights, credits, and
estate of the deceased which come to his
possession or knowledge;
2. That he will truly account for such as are
received by him when required by the court;
3. That he will deliver the same to the person
appointed executor or administrator, or to
such other person as may be authorized to
receive them. (Rule 81, Sec. 4)
General Powers and Duties of Executors
and Administrators (Rule 84)
Powers and Duties of Executor and
Administrator
284 Center for Legal Education and Research
1. Administration
2. Liquidation
3. Distribution (Albano, Remedial Law, p. 850, 2010
ed.)
Power to have access to partnership books
and property:
The executor or administratior of the estate of a
deceased partner shall at all times:
a) Have access to, and may examine and take
copes of, books and papers relating to the
partnership business; and
b) May Examine and make invoices of the
property belonging to such partnership; and
c) On request, the surviving partner or partners
shall exhibit to him all such books, papers,
and property in their hands or control (Rule
84,Sec. 1).
Note: On the written application of executor or
administrator, the court may order any such
surviving partner or partners to freely permit the
exercise of these rights, and to exhibit the books,
papers, and property, and may punish any
partner failing to do so for contempt(Rule 84, Sec.
1).
Duty to keep buildings in repair
An executor or administrator shall:
1. Maintain in tenantable repair the houses and
other structures and fences belonging to the
estate, and
2. Deliver the same in such repair to the heirs or
devisees when directed so to do by the court
(Rule 84, Sec.2).
Right to possession and management of
the real and personal estate
An executor or administrator shall have the right
to possession and management of the real and
personal property of the deceased so long as it is
necessary for the payment of the debts and the
expenses of administration (Rule 84, Sec. 3).
Restriction on the powers of executors and
administrators
 Purple Notes
Accountabilities of an executor or
administrator
1. The executor or administrator shall be
accountable for the whole of the estate of the
deceased which has come into his possession,
at the value of the appraisement contained in
the inventory; with all the interest, profit, and
income of such estate; and with the proceeds
of so much of the estate as is sold by him, at
the price at which it was sold (Rule 85, Sec. 1);
2. He shall not profit by the increase or lose by
the decrease in value, without his fault, of any
part of the estate (Rule 85, Sec. 2);
3. He must account for the excess when he sells
any part of the estate for more than its
appraisement, he is not responsible for the
loss if the sale has been justly made (Ibid.);
4. If he settles any claim against the estate for
less than its nominal value, he is entitled to
charge in his account only the amount he
actually paid on the settlement (Ibid.);
5. He shall not be accountable for debts due the
deceased which remain uncollected without
his fault (Rule 85, Sec. 3);
6. He shall account for the income from the
realty used by him (Rule 85, Sec. 4);
7. He shall be accountable for waste. This means
that if the value of the estate decreases, or
unnecessary costs and expenses accrue, or
the person interested in the estate suffer loss
as a result of his neglect or unreasonable
delay to raise money, by collecting the debts
or selling the real or personal estate, or of his
neglect to pay over the money in his hands,
he shall be answerable for the same(Rule 85,
Sec. 5).
Executor or administrator chargeable with
all estate and income
Every executor or administrator is chargeable in
his account with the whole of the estate of the
deceased which has come into his possession, at
the value of the appraisement contained in the
inventory; with all the interest, profit, and income
of such estate; and with the proceeds of so much
of the estate as is sold by him, at the price at
which it was sold (Rule 85, Sec. 1).
Not to profit by increase or lose by
decrease in value
Remedial Law
No executor or administrator shall profit by the
increase or suffer loss by the decrease or
destruction, without his fault, or any part of the
estate.
1. He must account for the excess when he
sells any part of the estate for more than
the appraisement;
2. If sold for less, he is not responsible for the
loss – if the sale has been justly made;
3. If he settles any claim against the estate
for less than its nominal value – he is
entitled to charge in his account only the
amount actually paid on the
settlement(Rule 85, Sec. 2).
Note: No executor or administrator shall be
accountable for debts due the deceased which
remain uncollected without his fault (Rule 85, Sec.
3).
Accountable for income from realty used by
him
If the executor or administrator uses or occupies
any part of the real estate himself, he shall
account for it as may be:
a) Agreed upon between him and the parties
interested, or
b) Adjusted by the court with their assent; and
c) If the parties do not agree upon the sum to
be allowed - the same may be ascertained by
the court,whose determination in this respect
shall be final (Rule 85, Sec. 4).
Accountable if he neglects or delays to
raise or pay money
When an executor or administrator neglects or
unreasonably delays to raise money, by:
a. Collecting the debts or selling real or personal
estate of the estate, or
b. Neglects to pay over the money he has in his
hands, and
c. The value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the
persons interested suffer loss.
Effect: the same shall be deemed waste and the
damage sustained may be charged and allowed
Bar Operations C ommissions 285
 Purple Notes
Remedial Law
against him in his account, and he shall be liable
therefor on his bond(Rule 85, Sec. 5).
Allowed money paid as costs
Amount paid by executor/administrator for costs
awarded against him shall be allowed in his
administration account, unless it appears that the
action or proceeding in which the costs are taxed
was prosecuted or resisted without just cause,
and not in good faith(Rule 85, Sec. 6).
Expenses and fees allowed the executor or
administrator
a) The executor or administrator shall be allowed
the necessary expenses in the care,
management and settlement of the estate;
and
b) For his services, he shall be allowed four
pesos (P4.00) a day for the time actually and
necessarily employed, or a commission upon
the value of the estate as comes into his
possession and is finally disposed of by him in
the payment of debts, expenses, legacies, or
distributive shares, or by delivery to heirs or
devises, of —
a. 2% of the first P5,000;
b. 1% of so much of the value of the estate
in excess of P5,000 but does not exceed
P30,000;
c. 1/2% of so much of the value of the estate
in excess ofP30,000 but does not exceed
P100,000;
d. 1/4% of so much of the value of the estate
in excess of P100,000;
c) When the estate is large and the settlement
has been attended with great difficulty, and
has required a high degree of capacity on the
part of the executor of administrator, a
greater sum may be allowed;
d) When the deceased by will makes some other
provision for the compensation of his
executor, that provision shall be a full
satisfaction for his services unless by a written
instrument filed in court he renounces all
claims to the compensation provided by the
will(Rule 85, Sec. 7).
286 Center for Legal Education and Research
Note: When the executor is an attorney, he shall
not charge against estate any professional fees
for legal services rendered(Rule 85, Sec. 7).
The Administration bond should not be
considered as part of the necessary expenses
chargeable against the estate, not being included
among the acts constituting the care,
management, and settlement of the
estate(Ocampo v. Ocampo, G.R. No. 187879, July 5,
2010).
Nature of Attorney’s Fees
It is a personal liability of the executor or
administrator. However, if it is beneficial to the
estate and it is reasonable,he is entitled to
reimbursement. Such payment should be
included in his account and reimbursement
therefor should be settled upon notice(Sato v.
Ratios, L-17194, September 30, 1954).
Allowance to widow and family
The widow and minor or incapacitated children,
during the settlement of the estate, shall
receivetherefrom, under the direction of the
court, such allowance as are provided by law
(Rule 83, Sec. 3)
Allowances for support under Section 3, rule 83
should not be limited to the ―minor or
incapacitated‖ children of the deceased. Article
188 of the Civil Code provides that during the
liquidation of the conjugal partnership, the
deceased‘s legitimate spouse and children,
regardless of their age, civil status or gainful
employment, are entitled to provisional support
from the funds of the estate. The right and duty
to support subsist even beyond the age of
majority. Be that as it may, grandchildren are not
entitled to provisional support from the
decedent‘s estate. The law clearly limits the
allowance to ―widow and children‖ and does not
extend to grandchildren, regardless of their
minority or incapacity (Estate of Ruiz v. CA, G.R. No.
118671, January 29, 1996).
Executor or administrator to render
accounting of his administration
 Purple Notes
Remedial Law
1. The executor or administrator shall render an Distinction between Regular and Special
account of his administration within one (1) Administrator
year from the time of receiving letters
testamentary or of administration(Rule 85,Sec. Regular Special Administrator
8). He shall render such further accounting as Administrator
the court may require until the estate is When Appointed
wholly settled. (Rule 85, Sec. 8). Authority issued by a. If there is delay in
2. The court may examine him upon oath with a court to a competent granting letters
person to administer testamentary or
respect to every matter relating to any
the estate if: administration by any
account rendered by him and shall so examine i. No executor cause, or
him as to the correctness of his account named in the will;
before the same is allowed(Rule 85, Sec. 9,). ii. executor or b. The executor is
executors named aclaimant of
Certain articles not to be inventoried are incompetent, theestate
refuse the trust, (Rule 86, Sec. 8)
1. The wearing apparel of the surviving spouse or fail to give
and minor children, bond;
iii. The will was
2. The marriage bed and bedding, and
disallowed
3. Such provisions and other articles as will (Rule 78, Sec. 6)
4. necessarily be consumed in the subsistence of
the family of the deceased. (Rule 83, Sec. 2) decedent left no will.
Liability to pay the debts
Examination on oath with respect to Shall be liable to pay Shall not be liable to
account the debts of the estate pay any debts of the
(Rule 81, Sec. 1, par. deceased unless ordered
General Rule: The court may examine the b) by the court (Rule 80,
executor or administrator upon oath with respect Sec. 2)
Order of Appointment
to every matter relating to any account rendered
Order of Appointment Order of Appointment
by him, and shall so examine him as to the is final and is interlocutory and is
correctness of his account before the same is appealable generally not
allowed, (Rule 109, Sec. 1) appealable.
Except when there is a
Exception:When no objection is made to the grave abuse of
allowance of the account, and its correctedness is discretion.
satisfactorily established by competent proof(Rule [Rule 109, Sec. 1(e)]
85, Sec. 9).
A special administrator is an officer of the court
6.E.5 APPOINTMENT OF SPECIAL who is subject to its supervision and control,
ADMINISTRATOR expected to work for the best interest of the
entire estate, with a view to its smooth
When is a Special Administrator Appointed: administration and speedy settlement(Co v.
Rosario, G.R. No. 160671, April 30, 2008).
a) When there is delay in granting letters
testamentary or of administration by any Appointment of special administrator is
cause including an appeal from the allowance interlocutory and is not appealable [Rule 109, Sec.
or disallowance of a will, until the questions 1(e)]
causing the delay are decided and executors
or administrators appointed. (Rule 80, Sec. 1). The appointment of a special administrator lies
b) When the executor or regular administrator entirely in the discretion of the court, and is not
has a claim against the estate, with respect to appealable. Not being appealable, the only
the settlement or adjustment of that claim remedy against the appointment of a special
(Rule 86, Sec. 8). administrator is certiorari under Rule 65 (Tan v.
Gedorio, G.R. No. 166520, 2008)

Bar Operations C ommissions 287

 Purple Notes
Remedial Law
Powers and Duties of Special Administrator
(Rule 81, Sec.2)
1. To take possession and charge of goods,
chattels, rights, credits, and estate of
deceased, and
2. Preserve the same for executor or
administrator afterwards appointed, and
3. for that purpose may commence and
maintain suits as administrator
4. Sell only such perishable and other property
as the court orders sold.
Note: A Special Administrator is not liable to pay
any debts of the deceased unless so ordered by
the court(Rule 81, Sec. 2).
 Q: When shall a court appoint a Special
Administrator?
A: When the executor or administrator has a
claim before the estate. The executor or
administrator having a claim against the
estate cannot simply pay himself from the
estate (Sison vs. Azarraga, G.R. No. 8470, March
19, 1915).
If the executor or administrator has a claim
against the estate he represents, he shall
give notice thereof, in writing, to the court,
and the court shall appoint a special
administrator, who shall, in the adjustment
of such claim, have the same power and be
subject to the same liability as the general
administrator or executor in the settlement
of other claims. The court may order the
executor or administrator to pay to the
special administrator necessary funds to
defend such claim (Rule 86, Sec. 8).
Powers of Special Administrator cease
Power of Special Administrator cease when
letters testamentary or administration are
granted on the estate of the deceased.
The Special Administrator is required to:
Deliver to the executor or administrator goods,
chattels, money, and estate of the deceased in
his hands.
288 Center for Legal Education and Research
The executor or administrator may prosecute to
final judgment suits commenced by such special
administrator (Rule 80, Sec. 3)
6.E.6 GROUNDS FOR REMOVAL OF
ADMINISTRATOR
Grounds for Removal of an Executor or
Administrator
1. If he neglects to render his account and settle
the estate according to law;
2. If he neglects to perform an order or
judgment of the court;
3. If he neglects a duty expressly provided by
the Rules of Court; and
4. If he absconds, becomes insane, or otherwise
incapable or unsuitable to discharge the trust.
(Rule 82, Sec. 2).
The grounds are not exclusive since the removal
is dependent upon the sound discretion of the
court. He may be removed on the ground of
unfitness or unsuitability(Lira v. Diaz-Millares, G.R.
No. L-17633, October 19, 1966).
Effects of Revocation, Resignation or
Removal of the Executor or Administrator
on his previous acts.
The lawful acts of an executor or administrator
before his resignation or removal, shall have the
same validity as if there had been no such
revocation, resignation, or removal. (Rule 82, Sec.
3).
Removal of Special Administrator
The probate court may appoint or remove special
administrators based on grounds other than
those enumerated in the Rules at its discretion,
such that the need to first pass upon and resolve
the issues of fitness or unfitnessand the
application of the order of preference under
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain. As
long as the discretion is exercised without grave
abuse, and is based on reason, equity, justice,
and legal principles, interference by higher courts
is unwarranted (Ocampo v. Ocampo, G.R. No.
187879, July 5, 2010).
 Purple Notes
Complaints against the general competence of
the administrator, the proper remedy is to seek
the removal of the administrator in accordance
with Sec. 2, Rule 82. While the provision is silent
as to who may seek with the court the removal of
the administrator, a creditor, even a contingent
6.F.CLAIMS AGAINST THE ESTATE
Claim - any debt or pecuniary demand against
the decedent‘s estate.
Absolute claim - one which, if contested
between living persons, would be the proper
subject of immediate legal action and would
supply a basis of judgment for a sum certain.
Contingent claim - conditional claim which is
subject to the happening of a future, uncertain
event.
Money claims – expenses contracted prior to
the death of the decedent.
Expenses of administration – claims incurred
after the decedent‘s death EXCEPT claims for
funeral expenses.(Gabin vs. Melliza, G.R. No.L-1849,
October 25, 1949).
Note: Expenses of administration may be
collected from the administrator or executor
personally or by motion in the testate or intestate
proceedings without the formality and limitations
for money claims against the decedent (De Leon
and Wilwayco, Special Proceedings Essentials for
Bench and Bar, 2015, p.128).
Also, claims for taxes, whether assessed before
or after the death of the deceased, can be
collected from the heirs even after the
distribution of the properties of the decedent.
They are exempted from the application of the
statute of non-claims. The heirs shall be liable
therefor, in proportion to their share in the
inheritance (Marcos II vs. CA, G.R. No. 120880, June
5, 1997).
Purpose of Filing a Claim
The purpose of presentation of claims against
decedents of the estate in the probate court is to
protect the estate of deceased persons. That
way, the executor or administrator will be able to
Remedial Law
examine each claim and determine whether it is a
proper one which should be allowed. Further, the
primary object of the provisions requiring
presentation is to apprise the administrator and
the probate court of the existence of the claim so
that a proper and timely arrangement may be
made for its payment in full or by pro-rata
portion in the due course of the administration
(Estate of Olave vs. Reyes, G.R. No. L-29407, July 29,
1983).
6.F.1 Time within which claims shall be
filed; Exceptions
General Rule: The court shall state in the notice
the time for the filing of claims against the
estate, which shall not be more than twelve (12)
nor less than six (6) months after the date of the
first publication of the notice.
Exceptions: Belated Claims
1. At any time before order of distribution is
entered, a creditor who failed to file his claim
within the time set may move to be allowed to
file such claim. The 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 (1) month (Rule 86, Sec. 2).
The one-month extension does not commence
from expiration of the original period for filing
claims. It begins from the date of the order of
the court allowing said filing (Barredo vs. CA,
(Barredo vs. CA, G.R. No. No. 17863, November
28, 1962).
Rule 86, Section 2 does not state what cause
shall be considered sufficient for the purpose.
It is left to the discretion of the court to
determine the sufficiency thereof and the
appellate court cannot reverse or set aside the
action of the lower court UNLESS the latter
has abused its discretion (Quisumbing vs.
Guison, G.R. No. 49022, May 31, 1946).
2. Claims which may be set up as counterclaims
by the creditor in any action that the executor
or administrator may bring against said
creditor (Rule 86, Sec. 5).
Bar Operations C ommissions 289
 Purple Notes
Remedial Law
Claims which must be filed under the notice
1. All claims for money against the decedent,
arising from contract, express or implied,
whether the same be due, not due, or
contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the
decedent; and,
4. Judgment for money against the
decedent(Rule 86, Sec. 5).
Note: The judgment referred to above must be
presented as a claim against the estate where
the judgment debtor dies before levy on
execution of his properties (Evangelista vs. La
Proveedora, .(Evangelista vs. La Proveedora, G.R.
No.No. L-32824, March 31, 1971).
It is clear that Section 1 of Rule 74 does not
apply to the partition in question which was null
and void as far as the plaintiffs were concerned.
Under the Rules, "no extrajudicial settlement
shall be binding upon any person who has not
participated therein or had no notice thereof." As
the partition was a total nullity and did not affect
the excluded heirs, it was not correct for the trial
court to hold that their right to challenge the
partition had prescribed after two years from its
execution (Neri vs. Heirs of YusopUy and Uy, G.R. No.
194366, October 10, 2012).
On the issue of prescription, the Court agrees
with petitioners that the present action has not
prescribed in so far as it seeks to annul the
extrajudicial settlement of the estate. Contrary to
the ruling of the CA, the prescriptive period of 2
years provided in Section 1, Rule 74 of the Rules
of Court reckoned from the execution of the
extrajudicial settlement finds no application to
petitioners Eutropia, Victoria and Douglas, who
were deprived of their lawful participation in the
subject estate. Besides, an "action or defense for
the declaration of the inexistence of a contract
does not prescribe" in accordance with Article
1410 of the Civil Code (Neri vs. Heirs of YusopUy
and Uy, G.R. No. 194366, October 10, 2012).
The filing of a money claim against the
decedent‘s estate in the probate court is
mandatory. The law strictly requires the prompt
presentation and disposition of the claims against
the decedent's estate in order to settle the affairs
290 Center for Legal Education and Research
of the estate as soon as possible, pay off its
debts and distribute the residue (Union Bank of the
Philippines vs. Santibañez, G.R. No. 149926, February
23, 2005).
6.F.2 Statute of Non-claims
It is the period fixed for the filing of claims
against the estate, such that claims not filed
within the said period are barred forever.(Rule 86,
Secs. 2 and 5).
Guidelines:
1. The period fixed by the probate court must
not be less than six (6) months nor more than
12 months from the date of first publication of
the notice.
2. Such period once fixed by the court is
mandatory and it cannot be shortened.
3. The statute of non-claims supersedes the
statute of limitations(Sikat vs. Villanueva, G.R.
No. L-35925, November 10, 1932).
Statute of Non-claims supersedes Statute
of Limitations
Even if a claim has not yet prescribed under the
statute of limitations, if such claim is not made
with the probate court within the time set forth in
the notice, the creditor may no longer collect
because of the statute of non-claims. In other
words, the statute of non-claims effectively
shortens the statute of limitations as regards the
right of action to pursue the debtor is concerned.
The statute of limitations and non-claims must
both concur before a creditor may collect against
the estate (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, 2015,
p.131).
The rule requires certain creditors of a deceased
person to present their claims for examination
and allowance within a specified period, the
purpose thereof being to settle the estate with
dispatch, so that the residue may be delivered to
the persons entitled thereto without their being
afterwards called upon to respond in actions for
claims, which, under the ordinary statute of
limitations, have not yet prescribed (Santos vs.
Manarang, G.R. No. L-8235, March 19, 1914).
 Purple Notes
A claim filed two days after the period fixed by
the order of the probate court could still prosper.
In deciding in favor of the creditor, the Court
declared that the administratrix was estopped
and that laches had already set in considering
that the issue of the timeliness of the claim was
made after seven (7) years (Danan vs. Buencamino,
G.R. No. L-57205, December 14, 1981).
Waiver of Statute of Non-claims
Though presentment of probate claims is
imperative, it is generally understood that it may
be waived by the estate‘s representative. Such
waiver is to be determined from the
administrator‘s ―acts and conduct‖. Certainly, the
administrator‘s failure to plead the statute of non-
claims, his active participation and resistance to
plaintiff‘s claim in the civil suit amount to such
waiver (Ignacio vs. Pampanga Bus Company, Inc.,
G.R. No. L-18936, May 23, 1967).
6.F.3 Claim of executor or administrator
Procedure to follow if the executor or
administrator has a claim against the
estate he represents
1. Executor/Administrator shall give notice
thereof, in writing, to the court;
2. The court shall appoint a special administrator
who shall have the same powers and liabilities
as the general executor/administrator in the
adjustment of such claim.
3. The court may order the executor or
administrator to pay to the special
administrator necessary funds to defend such
claim(Rule 86, Sec. 8).
Claims which survive death
Claims for civil liability survive notwithstanding
the death of the accused if the same may also be
based on a source of obligation other than delict,
such as contract, law, quasi-contract and quasi-
delict.
A separate civil action may be enforced either
against:
1. The estate of the accused - in case of a
contract; or,
Remedial Law
2. The executor or administrator - in case of law,
quasi-contract and quasi-delict(Ruiz vs. CA, G.R.
No. 116909, February 25, 1999).
6.F.4 PAYMENT OF DEBTS OF THE ESTATE
Requisites before a claim against the estate
may be paid
1. Hearing is conducted;
2. Amounts of claims are ascertained; and,
3. There are sufficient assets to pay the claims
The provision in a will for the payment of a
specific debt does not dispense with the
requirement that a claim should be filed against
the estate (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, 2015,
p.163).
In any case where the provision in the will is
insufficient to cover the entire debt, that part of
the decedent‘s estate not disposed of by will shall
answer for such deficiency (Rule 88, Sec. 2).
How should the debts of the estate be paid
General Rule: The payment of the debts of the
estate must be taken, by order of preference:
1. From the portion or property designated in
the will;
2. From the personal property; and,
3. From the real property
In case of a deficiency after the exhaustion
of the decedent‘s estate, the debts shall be
satisfied from the contribution of devisees,
legatees or heirs who have been in
possession of portions of the estate before
the debts and expenses have been settled
and paid (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, 2015,
p.164).For this purpose, the court having
jurisdiction may, by order and after hearing,
settle the amount of their several liabilities
and order how much and in what manner
each person shall contribute. The court may
also issue execution as circumstances require
(Rule 88, Sec. 6).
Applicable provisions if the decedent is
insolvent
Bar Operations C ommissions 291
 Purple Notes
Remedial Law
If the assets of the estate of a decedent
which can be applied to the payment of debts
are not sufficient for that purpose, the
provisions of Articles 2239 to 2251 of the
Civil Code on Preference of Credits shall
be observed, provided that the expenses
referred to in Article 2244, No. 8, shall be
those involved in the administration of the
decedent's estate (Art. 1059, Civil Code).
Exceptions: Instances when realty can be
charged first, on application by executor or
administrator, with written notice to persons
interested and after hearing:
1. When the personal property is not sufficient
(Rule 88, Sec. 3);
2. When the sale of personal property would be
detrimental to the participants of the estate
(Rule 88, Sec. 3);
3. When sale of personal property may injure
the business or interests of those interested
in the estate (Rule 88, Sec. 2);
4. When the testator has not made sufficient
provision for payment of such debts,
expenses and legacies (Rule 88, Sec. 2);
5. When the decedent was, in his lifetime,
under contract, binding in law, to deed real
property to beneficiary (Rule 88, Sec. 8); and,
6. When the decedent during his lifetime held
real property in trust for another (Rule 88,
Sec. 9)
Requisites for Exceptions to Apply
(a) Application by executor/administrator;
(b) Written notice to persons interested;
(c) Hearing
The same principles apply if the debt of the
estate is in another country (Special Proceeding Bar
Review, Justice Magdangal De Leon).
When Writ of Execution May Issue
Execution may issue only where the devisees,
legatees or heirs have entered into possession of
their respective portions in the estate PRIOR to
the settlement and payment of the debts and
expenses of administration and it is later
ascertained that there are such debts and
expenses to be paid (Domingo vs. Garlitos, G.R. No.
L-18994, June 29, 1963).
292 Center for Legal Education and Research
Several Creditors of the Same Preference
Where there are several creditors entitled to the
same preference and the assets are insufficient
to pay all of them, the proceeds shall be prorated
among the creditors of the same preference.
This, of course, assumes that the claim of other
creditors entitled to a higher preference have
been satisfied (Rule 88, Sec. 8).
Time for Paying Debts(Rule 88, Sec. 15 and 16)
1. Initial period. The executor or
administrator has one (1) year from the
issuance of letters testamentary or
administration to dispose of the estate; and,
to pay the debts and legacies of the
deceased.
2. Extension. After hearing and notice to all
persons interested, the executor or
administrator may apply for an extension not
exceeding six (6) months for a single
extension.
3. Whole period allowed to original
executor/administrator shall not exceed
two (2) years.
4. Extension by Successor. The successor of
an executor/administrator who dies may have
the time extended on notice, not exceeding
six (6) months at a time and not exceeding
six (6) months beyond the time allowed to
original executor/administrator.
5. The total allowable period if the
executor/administrator dies is two and a half
years (2.5 years).
Sale of property levied for satisfaction of
decedent’s debts
If judgment debtor dies after such levy, property
may be sold. If judgment debtor dies before levy,
the property may not be sold but must be
presented as money claim against the estate of
deceased judgment debtor.
6.G. ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
6.G.1 Actions that may be brought against
Executors and Administrators:
 Purple Notes
a) For the recovery or protection of the property
or rights of deceased(real and personal
property or interest therein) (Rule 87, Sec. 2)
b) Action to enforce a lien damages for an injury
to a person or property (Aguas v. Llenos, G.R.
No. L-18107, 1962)
c) Actions to recover damages for an injury to a
person or property (Sec. 1, Rule 87)
The aforementioned instances are deemed
actions that survive the death of the
decedent(Aguas v. Llenos, G.R. No. L-18107,1962).
Actions which may NOT be brought against
Administrators
Claim for the recovery of money or debt or
interest cannot be brought against executors or
administrators. [(Aguas v. Llenos, G.R. No. L-18107,
1962); Sec. 1, Rule 87)]
Executor or Administrator May Bring or
Defend Actions Which Survive Death
For the recovery or protection of the property or
rights of the deceased (Sec. 2, Rule 87).
Covers injury to property i.e. n o t only limited to
injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. (Aguas v. Llenos, G.R. No.L-18107,
1962).
A mortgage belonging to the estate may be
foreclosed by the executor or administrator. (Sec.
5, Rule 87)
General Rule: Heirs may not sue for the recovery
of property of the estate against the executor or
administrator during the pendency of the
administration proceedings. (Sec. 3, Rule 87)
Exceptions:
a) If executor or administrator is unwilling to
bring a suit;
b) When the executor or administrator is made a
party defendant where he is alleged to have
participated in the act complained of;
c) Where there is no appointed administrator
(Atty. GemyLinoFestin, Special Proceedings: A
Foresight to the Bar Exam, 2011 ed.)
Remedial Law
6.G.2 Requisites before Creditor may bring
an Action for Recovery of Property
Fraudulently Conveyed by the Deceased:
For the creditor to file an action to recover
property fraudulently conveyed by the deceased,
the following requisites must be present:
1. There is a deficiency of assets in the hands of
an executor or administrator for the payment
of debts and expenses of administration (Rule
87 Sec. 9);
2. The deceased in his lifetime had made or
attempted to make a fraudulent conveyance
of his real or personal property, or a right or
interest therein, or a debt or credit, with
intent to defraud his creditors or to avoid any
right, debt or duty; or had so conveyed such
property, right, debt, or credit that by law the
conveyance would be void as against his
creditors (Rule 87, Sec. 9);
3. The subject of the attempted conveyance
would be liable to attachment by any of them
in his lifetime (Rule 87, Sec. 9);
4. The executor or administrator has shown to
have no desire to file the action or failed to
institute the same within a reasonable time;
5. Leave is granted by the court to the creditor
to file the action;
6. A bond is filed by the creditor as prescribed
in the Rules; and
7. The action by the creditor is in the name of
the executor or administrator (Rule 87, Sec.
10).
Note:
The last three requisites are unnecessary where
the grantee is the executor or administrator
himself, in which case the action should be in the
name of all the creditors(Rule 87, Sec. 10).
Bar Operations C ommissions 293
 Purple Notes
Remedial Law

How To File A Claim

(Rule 86, Sec. 9 to 14)

Form of Claim

Claim founded on a
bond, bill, note or any
other instrument.

Original need not On demand of the

be filed, but a copy executor or
thereof with all administrator, or
indorsements shall by order of the
be attached to the court or judge.
claim and filed
therewith.

If not lost or If lost or

destroyed destroyed

Original shall be Claimant must

exhibited accompany his
claim with
affidavit or
affidavits
containing a copy
or particular
description of the
instrument and
stating its loss or
destruction

294 Center for Legal Education and Research

 Purple Notes
Remedial Law

How to File a Claim

Delivering the same with the necessary

Filing of a Claim
vouchers to the clerk of court

Serve a copy on the

executor or administrator

Claim is due Claim not due/Contingent

Must be supported by affidavit Supported by affidavit

stating: stating the particulars
1. The amount justly due; thereof
2. That no payments have
been made thereon which
are not credited;
3. That there are no offsets to
the same, to the knowledge
of the affiant

Claim one filed shall be attached to the record

of the case in which the letters testamentary or
of administration were issued
The court in
its discretion
Within fifteen (15) days after service of a copy
may extend
the time for of the claim on the executor or administrator
filing such on the claimant
answer
A copy of the answer shall be served by the
executor or administrator on the claimant

Admitted Claim Contested Claim

With notice to
both parties
Clerk submits to The Court, in its Trial
the court and discretion, before Court may refer
approved approving the claim, may the claim to a
without hearing order that known heirs, Judgment filed with the commissioner
legatees, or devisees be record of the
notified and heard. administration
proceedings with notice
to both parties.
If an heir, legatee, or devisee
opposes the claim, the court may, Appeal: Record on Appeal filed within
in its discretion, allow him fifteen 30 days from notice of judgment
(15) days to file an answer to the
claim

Bar Operations C ommissions 295

 Purple Notes
Remedial Law
Note: When the affidavit is made by a person
other than the claimant, he must state the reason
why it is not made by the claimant.
SALES, MORTGAGES AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT
Note: All actions must be done through an
ADMINISTRATOR or EXECUTOR.
Sale of decedent’s personal property
without court order prohibited
An executor or administrator may be held
answerable for selling the decedent‘s property
without a court order. The assent of the heirs is
insufficient to vest in him the power to dispose of
the decedent‘s property (De Leon and Wilwayco,
Special Proceedings Essentials for Bench and Bar,
p.171, 2015 ed.).
Court cannot motuproprio order the sale of
personal property
It is essential that the executor or administrator
applies for such sale with the court and gives
written notice to the heirs and other persons
interested. It must also be shown that the sale is
necessary for the payment of the debts,
expensesof administration or legacies, or the
preservation of the property (De Leon and
Wilwayco, Special Proceedings Essentials for Bench
and Bar, p.171, 2015 ed.)
Order of sale of personalty, when proper
The court may order the whole or part of the
personal estate to be sold if it appears necessary
for:
a) paying debts, expenses of administration or
legacies; or,
b) preservation of the property(Rule 89, Sec. 1)
Sale, mortgage, or other encumbrance
(SME) of realty through personalty NOT
exhausted (Rule 89, Sec. 2)
When may be authorized by the court
a. When personal property is not sufficient to
cover the debts, expenses of administration
and legacies; OR
296 Center for Legal Education and Research
b. When sale of personal estate may injure the
business interests of those interested in the
estate; AND
c. Testator has not made sufficient provision for
the payment of debts, expenses, and legacies
Requisites
1) Court application of executor or administrator;
2) Written notice to the heirs, devisees and
legatees residing in the Philippines
3) SME clearly appears beneficial to persons
interested
General Rule: Only so much as may be
necessary of the real estate need be sold,
mortgaged or encumbered.
Exception: When whole property may be sold:
1. If the SME of a part will injure those
interested in the remainder; and
2. If it is necessary under the circumstances
Any person interested in the estate may prevent
the sale, mortgage or encumbrance of real or
personal property part of the estate by giving a
bond in an amount fixed by the court,
conditioned on the payment of debts, expenses
of administration and legacies, as well as security
of the creditors, executor or administrator (Rule
89, Sec. 3)
Sale of estate as beneficial to interested
persons (Rule 89, Sec. 4)
The primary consideration of the court for
authorizing the sale under this provision is the
interest and benefit to the heirs, devisees,
legatees and other interested persons.
General Rule: Purpose of the sale of estate
under Rule 89 must be for the payment of debts,
expenses of administration or legacies, or for
preservation of property.
Exception: Sale of estate may be authorized by
the court even if not necessary for the
abovementioned purposes, provided such sale is
beneficial to interested persons.
 Purple Notes
Any proceeds derived from the sale shall be
assigned to the persons entitled to the estate in
the proper proportions.
Exception to the Exception: Authority to sell
estate as beneficial to interested persons shall
NOT be granted if inconsistent with the
provisions of a will.
Sale, mortgage or other encumbrance of
estate to pay debts and legacies in other
countries
The court in the Philippines may authorize the
executor or administrator to sell the personal
estate or to sell, mortgage or encumber the real
estate for the payment of debts or legacies in
another country if it appears from the records
and proceedings of a probate court in another
country that the estate of the deceased in such
other country is insufficient to pay the debts,
expenses of administration, and legacies there
(Rule 89, Sec. 5).
Sale, mortgage, or other encumbrance of
realty acquired on execution or foreclosure
This is allowed under the same circumstances
and under the same regulations prescribed for
the sale, mortgage or other encumbrance of
other real estate (Rule 89, Sec. 6).
Regulations for granting authority to sell,
mortgage, or encumber estate (Rule 89, Sec.
7).
The court having jurisdiction of the estate of the
deceased may authorize the executor or
administrator to sell personal estate or to sell,
mortgage, or otherwise encumber real estate:
1) In cases provided by these rules; and,
2) When it appears necessary or beneficial
under the following regulations:
a. The executor or administrator shall file a
written petition setting forth the
following:
 Debts due from the deceased
 Expense of Administration
 Legacies
Remedial Law
 Value of the personal estate
 Situation of the estate to be sold,
mortgaged or encumbered
 Other facts showing that the SME is
necessary or beneficial [Rule 89, Sec.
7(a)].
b. The court shall fix the time and place for
hearing the petition, with notice to the
persons interested.
The notice shall state the following:
 nature of the petition
 reasons for the petition
 time and place of the hearing
Note: The notice must be given
personally or by mail to the persons
interested. The court may also cause
such further notice to be given by
publication or otherwise as it shall deem
proper [Rule 89, Sec. 7(b)].
c. The executor or administrator shall give
an additional bond if so required by the
court.
The bond must be in such sum as the court
directs, and conditioned that the executor or
administrator will account for the proceeds of the
sale, mortgage or other encumbrance [Rule 89,
Sec. 7(c)].
Effect of compliance with the foregoing
regulations
The court, by order stating such compliance, may
authorize the executor or administrator to sell,
mortgage or encumber such part of the estate as
is deemed necessary. The executor or
administrator shall be furnished with a certified
copy of such order [Rule 89, Sec. 7(d)].
In case of sale, the court may authorize it to be
in public or private, as would be most beneficial
to all parties concerned [Rule 89, Sec. 7(d)].
In case of sale at auction, the mode of giving
notice of the time and place of the sale shall be
governed by the provisions on notice of execution
sale [Rule 89, Sec. 7(e)].
Bar Operations C ommissions 297
 Purple Notes
Remedial Law
Record in the Registry of Deeds
A certified true copy of the order of the court,
together with the deed of the executor or
administrator for such real estate, shall be
recorded in the registry of deeds of the
province where the real estate is situated. The
deed shall be as valid as if it had been executed
by the deceased in his lifetime [Rule 89, Sec.
7(f)].
Conveyance of realty which deceased
contracted to convey (Rule 89, Sec. 8)
Requisites
1. The deceased, during his lifetime, was under
a contract to deed real property or an
interest therein;
2. The contract is valid and binding;
3. Application to authorize the executor or
administrator to convey the property
according to the contract;
4. If there be modifications in the contract, the
same should be agreed upon by the parties
and approved by the court;
5. Notice of the application given personally or
by mail to all persons interested;
6. Further notice given by publication or
otherwise, as the court deems proper; and,
7. The conveyance must not reduce the value
of the estate to the extent of depriving
creditors payment of their claims
Note: If the contract is to convey real property
to the executor or administrator, the clerk of
court shall execute the deed.
The deed executed by the executor,
administrator or the clerk of court, as the case
may be, shall be as effectual as if executed by
the deceased in his lifetime.
Conveyance of lands which deceased held
in trust (Rule 89, Sec. 9)
Requisites
1. The deceased, during his lifetime, held real
property in trust for another person;
2. Application to authorize the executor or
administrator to convey the property;
298 Center for Legal Education and Research
3. Notice of the application given personally or
by mail to all persons interested;
4. Further notice given by publication or
otherwise, as the court deems proper;
The court may order the execution of such trust,
whether created by deed or by law.
Note: The fact that creditors would be affected
would not prevent the conveyance since the
property does not form part of the estate.(MBTC
vs. S.F. Naguiat Enterprises, G.R. No. 178407, March
18, 2015),
6.H DISTRIBUTION AND PARTITION
The settlement of a decedent‘s estate is a
proceeding in rem which is binding against the
whole world. All persons having interest in the
subject matter involved, whether they were
notified or not, are equally bound (DBP vs. Labor
Arbiter Santos, G.R. No. 78261-62, March 8, 1989).
When order for distribution of residue
made (Rule 90, Sec. 1)
An order for distribution of the residue shall be
made after payment of all:
1. Funeral expenses
2. Inheritance Tax
3. Debts
4. Expenses for administration
5. Allowance of the widow
General Rule: No distribution shall be allowed
until the payment of the obligations above
mentioned has been made or provided for.
Exception:Distributees, or any of them, give a
bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations
within such time as the court directs.
Note: What the court is enjoined from doing is
the distribution of the residue of the estate
before its obligations are first paid. The court is
not enjoined from making the declaration of heirs
(Ngo ThaHua vs. Chung KiatHua, G.R. No. L-17091,
September 30, 1963).
The widow and minor or incapacitated children of
a deceased person, during the settlement of the
 Purple Notes
estate, shall receive therefrom under the
direction of the court, such allowance as are
provided by law (Section 3, Rule 83, Special
Proceedings, 1964 Rules on Civil Procedure).
It is settled that allowances for support under
Section 3 of Rule 83 should not be limited to the
"minor or incapacitated" children of the
deceased. Article 188 of the Civil Code of the
Philippines, the substantive law in force at the
time of the testator's death, provides that during
the liquidation of the conjugal partnership, the
deceased's legitimate spouse and children,
regardless of their age, civil status or gainful
employment, are entitled to provisional support
from the funds of the estate. The law is rooted
on the fact that the right and duty to support,
especially the right to education, subsist even
beyond the age of majority (Pilapil vs. Heirs of
Briones, G.R. No. 150175, February 5, 2007).
Be that as it may, grandchildren are not entitled
to provisional support from the funds of the
decedent's estate. The law clearly limits the
allowance to "widow and children" and does not
extend it to the deceased's grandchildren,
regardless of their minority or incapacity. It was
error, therefore, for the appellate court to sustain
the probate court's order granting an allowance
to the grandchildren of the testator pending
settlement of his estate (Ruiz vs. CA, G.R. No.
118671, January 29, 1996).
Two (2) requisites before distribution of
Estate:
1. Liquidation - determination of all assets of
the estate and payment of all debts and
expenses.
2. Declaration of heirs - undertaken to
determine to whom the residue of the estate
should be distributed.
A separate action for the declaration of heirs is
not proper. It is made in the same
proceeding(Vda. de Kilayko vs. Tengco, G.R. No.
45425, April 29, 1939).
The net estate of the decedent must be
ascertained by deducting all payable obligations
and charges from the value of the property
owned by the deceased at the time of his death;
then, all donations subject to collation would be
Remedial Law
added to it. With the partible estate thus
determined, the legitime of the compulsory heir
or heirs can be established; and only then can it
be ascertained whether or not a donation had
prejudiced the legitimes(Heirs of Doronio vs. Heirs
of Doronio, G.R. No. 169454, December 27, 2007).
Payment of obligations, liquidation of estate and
distribution of a decedent‘s assets may only be
ordered under any of the following three
circumstances:
a) when the inheritance tax, among others, is
paid;
b) when a sufficient bond is given to meet the
payment of the inheritance tax and all other
obligations; and
c) when the payment of the said tax and all
other obligations has been provided for(Rule
90 Sec. 1).
Other matters that may be determined by
the probate court in the declaration of
heirs:
1. Whether or not a person is acknowledged
natural child of decedent (Conde vs. Abaya, G.R.
No 4725, March 23,1909)
2. Validity of disinheritance effected by the
testator (Hilado vs. Ponce De Leon, G.R. No. 8020,
October 27, 1953)
3. Status of a woman who claims to be the
lawful wife of the decedent (Torres vs. Javier,
GR No. L-10560, March 24, 1916)
An adoption decree cannot be assailed collaterally
in settlement proceedings (Santos vs. Aranzanso
G.R. No. L-26940, August 21, 1982).
Note: when a petitioner‘s claim is anchored on a
sale of the property to her predecessor-in-
interest and not on any filiation with the original
owner, no judicial declaration of heirship is
necessary (Pas Capablanca vs.Heirs of Pedro Bas,
G.R. No. 224144, June 28, 2017).
Conditions precedent for the issuance of an
order for distribution of residue (Rule 90, Sec.
1)
1. Application by the executor, administrator or
person interested in the estate; and
Bar Operations C ommissions 299
 Purple Notes
Remedial Law
2. Fulfilment of notice and hearing upon such
application.
The court acquires jurisdiction over all persons
interested through publication of notice and any
order that may have been entered thereafter
shall be binding against all of them (Manalo vs.
Paredes GR No 24168 September 22, 1925).
6.H.1 Liquidation
General Rule: Before an order of distribution or
assignment, it must be shown that the ―debts,
funeral expenses and expenses of administration,
allowances, taxes, etc., chargeable to the estate‖
have been paid.
Exception: If the distributees give a bond
conditioned on the payment of above obligations
(Rule 90, Sec. 1). Thepart distributed must not be
subject to any controversy or appeal. (Rule
109.Sec. 2)
6.H.2 Project of partition
It isa document prepared by the executor or
administrator setting forth the manner in which
the estate of the deceased is to be distributed
among the heirs. It is a proposal for distribution
of the hereditary estimates and determines the
persons entitled thereto (Moran, Comments on the
Rules of Court, 1997 ed., Vol. 3, pp. 688-689).
The probate court, in the exercise of its
jurisdiction to distribute the estate, has the
power to determine the proportion or parts to
which each distributee is entitled (Vda. de Kilayko
vs. Tengco G.R. No. 45425 March 27, 1992).
Towards the end of the proceedings in a
settlement of estate petition, a project of
partition is usually prepared and presented to the
court.
If the estate is a testate estate, the project of
partition must conform to the terms of the will; if
intestate, the project of partition must be in
accordance with the provisions of the Civil Code
(Camia de Reyes vs. Reyes de Ilano, G.R. No. 42092,
October 28, 1936)
Finality of the approval of project of partition, by
itself, does not terminate probate proceeding
(Timbol vs. Cano, G.R. No. L-15445, April 29, 1961).As
300 Center for Legal Education and Research
long as the order of the distribution of the estate
has not been complied with, the probate
proceedings cannot be deemed closed and
terminated (Lee vs. CA, G.R. No. L-37135, December
28, 1973).
Probate court loses jurisdiction of an estate under
administration only after payment of all debts
and remaining estate delivered to heirs entitled
to receive the same (Guilas vs. Judge of CFI of
Pampanga, G.R. No. L-26695, January 31, 1972).
A judicial partition is not final and conclusive and
does not prevent the heir from bringing an action
to obtain his share, provided the prescriptive
period has not closed (Mari vs. Bonilla, G.R. No. L-
852, March 19, 1949).
A probate court has the power to enforce an
accounting as a necessary means to its authority
to determine the properties included in the
inventory of the estate to be administered,
divided up, and distributed. Beyond this, the
determination of title or ownership over the
subject shares may be conclusively settled by the
probate court as a question of collation or
advancement (Reyes vs. RTC Makati, Branch 142,
G.R. No. 165744, August 11, 2008).
Partial distribution of the estate should not have
been allowed. There was no determination on
sufficiency of assets or absence of any
outstanding obligations of the estate of the late
Raymond Triviere made by the RTC in this case.
In fact, there is a pending claim by LCN against
the estate, and the amount thereof exceeds the
value of the entire estate (Peña and Nolasco Law
Office vs. LCN Construction Corp., G.R. No. 174873,
August 26, 2008).
Although the right of an heir over the property of
the decedent is inchoate as long as the estate
has not been fully settled and partitioned, the law
allows a co-owner to exercise rights of ownership
over such inchoate right.
Once an action for the settlement of an estate is
filed with the court, the properties included
therein are under the control of the intestate
court. And not even the administrator may take
possession of any property that is part of the
estate without the prior authority of the
Court(Silverio, Jr. vs. CA, G.R. No. 178933, September
16, 2009).
 Purple Notes
6.H.3 Remedy of an heir entitled to residue
but not given his share
If there is a controversy before the court as to
who are the lawful heirs of the deceased person
or as to the distributive shares to which each
person is entitled under the law, the controversy
shall be heard and decided as in ordinary
cases (Rule 90, Sec. 1).
Remedies available, when proper
1. Motion for Reconsideration or Appeal.
Where an heir who has been duly notified of
the proceedings is not included or not given
any share in the order of distribution, he must
move for reconsideration or appeal therefrom
within 30 days from notice. Otherwise, the
order becomes final.
It has been held that an order which
determines the distributive share of the heirs
of a deceased person is appealable. If not
appealed within the reglementary period, it
becomes final (Imperial vs. Muñoz, G.R. No. L-
30787, August 29, 1974).
2. Action to Annul the Judgment. Where the
heir and his address is known to the
petitioner, but no notice was given to him, the
heir can file an action to annul the judgment.
The failure to notify him deprives the probate
court of jurisdiction to render a valid
judgment(Pinausukan Seafood House vs. FEBTC,
G.R. No. 159926, January 20, 2014).
3. Motion for Delivery of Share or to Re-
Open the Proceedings. Where the heir or
his address is unknown and no notice was
given to him, he can file a motion with the
probate court for the delivery of his share or
to re-open the proceedings if the order of
closure is not yet final.
Where the heir is given a share in the order of
distribution, he may move for the delivery of
the same to him, even after the closure of the
proceedings. The provisions of Rule 39, Sec. 6
do not apply to special proceedings.(Jerez vs.
Nietes, G. R. No.L-26876, December 27, 1969).
4. Action for Reconveyance. If the order of
closure has become final, the remedy of the
heir is to file an action for reconveyance
Remedial Law
against the distributees, subject to acquisitive
prescription (Rodil vs. Benedicto, G.R. No. L-
28616, January 22, 1980).
The heir may demand his share through:
a. A proper motion in the same probate or
administration proceedings, or
b. Motion to reopen if it had already been closed,
and not through an independent action which
would be tried by another court or judge
which might reverse a decision or order of the
probate court already final and executed and
reshuffle properties long ago distributed and
disposed of (Guilas vs. Judge of CFI of Pampanga,
G.R. No. L-26695, January 31, 1972).
The better practice for the heir who has not
received his share is to demand his share
through a proper motion in the same probate
or administration proceedings, or for
reopening of the probate or administrative
proceedings if it had already been closed, and
not through an independent action, which
would be tried by another court or judge
(Ramos vs. Ortuzar, G.R. No. L-3299, August 29,
1951).
Four cases illustrate the proper remedy:
1. Vda. de Lopez vs. Lopez (35 SCRA 81)
2. Divinagracia vs. Rovira(72 SCRA 307)
Both involved the issue of the reglementary
period within which non-parties to the
partition, heir, devisee or any person
interested in the estate, can reopen the case.
Conclusion: If proceeding already closed,
motion to reopen may be filed by a non-party
deprived of his lawful participation, as long as
it is within 30 days (now 15 days) or before
order closing the proceedings becomes final.
3. Guillas vs. Judge of CFI of Pampanga (43
SCRA 111)
4. Heirs of Jesus Fran vs. Salas (210 SCRA
303)
Both involved parties who have not received their
shares.
Bar Operations C ommissions 301
 Purple Notes
Remedial Law
Conclusion: Parties to partition agreement who
have not received their shares can file a motion
for execution within 5 YEARS. But if other
grounds such as forgery of will are raised, final
judgment cannot be attacked EXCEPT through a
separate action. The validity of a final judgment
can be assailed through a petition for relief under
Rule 38, annulment of judgment under Rule 47,
and petition for certiorari under Rule 65,
assuming the judgment is void for want of
jurisdiction (Special Proceeding Bar Review, Justice
MagdangalDe Leon).
Remedy of a Preterited Heir
The intestate proceedings, although closed and
terminated, can still be opened within the
prescriptive period upon petition by the preterited
heir (Solivio vs. CA, G.R. No. 83484, February 12,
1990).
Action upon an obligation created by law must be
brought within 10 years from the time the right
of action accrues (Art. 1144, Civil Code).
� After the decision became final and
executory, the trial judge lost jurisdiction
over the case. Any modification that he
would make, i.e., the inclusion of Mary Lyon
Martin would be in excess of his authority.
The remedy of Mary is to file an independent
suit against the parties and all other heirs for
her share in the subject property, in order
that all the parties in interest can prove their
respective claims (Nunal vs. CA, G.R. No. 94005,
April 6, 1993).
6.H.4 Instances when probate court may
issue Writ of Execution
General Rule: As a general rule, a probate court
cannot issue a writ of execution.
It is not supposed to issue a writ of execution
because its orders usually refer to the
adjudication of claims against the estate which
the executor or administrator may satisfy without
the necessity of resorting to a writ of execution.
The probate court, as such, does not render any
judgment enforceable by execution (De Valera vs.
Ofilada, G.R. No. L-26, September 12, 1974)
302 Center for Legal Education and Research
Exceptions:
1. Partition Expenses - to enforce payment of
expenses of partition (Rule 90, Sec. 3)
2. Examination Costs - to satisfy the costs when
a person is cited for examination in probate
proceedings (Rule 132, Sec. 13)
3. Contributive Shares - to satisfy the
contributive shares of devisees, legatees and
heirs in possession of the decedent‘s
assets (Rule 88, Sec. 6)
4. Surety‘s liability on bonds - to enforce liability
of sureties under bonds filed with the probate
court (De Mendoza v. Pacheco,G.R. No. 43351,
February 26, 1937).
Seven Stages in Settlement of Estate
1. Petition
2. Hearing
3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate
6. Distribution and Partition of Estate(Rule 90,
Secs. 1 and 3)
7. Closing
Questions as to advancement to be
determined
Questions as to advancements made, or alleged
to have been made, by the deceased to any heir
may be heard and determined by the court
having jurisdiction of the estate proceedings (Rule
90 Section 2).
Final order thereon shall be binding on:
1. The person raising the questions; and
2. Heirs (Gregorio vs. Madarang, G.R. No. 185226,
February 11, 2010)
By whom expenses for partition paid (Rule
90 Section 3)
1. Executor or Administrator, if he has sufficient
effects in his hands and when equitable and
not inconsistent with the testator‘s intention;
otherwise,
2. Parties, in proportion to their respective
shares or interest in the premises.
 Purple Notes
Remedial Law
Recording the order of partition of estate bond even if the will to file a bond shall be
(Rule 90 Section 4) provides for exemption. deemed a refusal or
Where the will exempts resignation from the
Certified copies of final orders and judgments of the executor from filing a trust
the court relating to the real estate or the bond, a bond shall Exemptions:
nevertheless be filed Trustee under a will may
partition thereof shall be recorded in the registry
conditioned on the be exempted from giving
of deeds of the province where the property is payment of the decedent‘s a bond when the testator
situated. debts has directed or
requested such
6.I TRUSTEES exemption
When all persons
6.I.1 Distinction Between a Trustee and an beneficially interested in
Executor/Administrator the trust, being of full
age, request the
exemption
Executor/ Trustee
Administrator Termination
Accounts Upon payment of the Upon turning over the
debts of the estate and the property to the
Accounts are filed only at Accounts must be filed
distribution of the property beneficiary after the trust
such times as may be annually and must be
to the heirs has expired.
required by the court. Only under oath.
the initial and final Obligation to pay debts
accounts are required to Required to pay debts of No obligation to pay the
be made under oath. estate debts of the beneficiaries
or the trustor
Venue
Municipal Trial Court or Will: Regional Trial Court (De Leon and Wilwayco, Special Proceedings Essentials
Regional Trial Court, which admitted the will for Bench and Bar, pp.254-261, 2015 ed.)
depending on the gross to probate
value of the estate. Written instrument: NOTE:
Regional Trial Court of
the province where the A trustee, like an executor/administrator, holds
property is situated
an office of trust, particularly when the trustee
Acts of Administration
acts as such under judicial authority (Trusteeship
Upon application to the On petition and after due
of the Minors Benigno, Angela and Antonio Perez y
court with written notice to notice and hearing, the
Tuazon, G.R. Nos. L- 16185-86, 1962).
the heirs, the executor court may order the sale
may sell, encumber or or encumbrance of the
mortgage the property if it property held in trust if it The duties of executor/administrator are
is (1) necessary for the is necessary or however, fixed and/or limited by law whereas
purpose of paying: (a) expedient. The proceeds those of the trustee of an express trust are,
debts (b) expenses of shall be reinvested or usually governed by the intention of the trustor
administration (c) legacies applied in such a manner or the parties, if established by contract. Besides,
or (2) for the preservation as will best effect the the duties of trustees may cover a wider range
of the property, or (3) objects of the trust. than those of executor/administrator of the
beneficial to the heirs,
estate of deceased persons (Araneta v. Perez, G.R.
legatees, or devisees.
No. L-16962, 1962).
Order of Sale
No time limit. No time limit.
6.I.2 Conditions of the Bond
When Appointment made
For the settlement of the To carry into effect the General Rule: Before entering the duties of his
decedent‘s estate. provision of a will or a trust a trustee shall file with the clerk of court
written instrument. having jurisdiction of the trust a bond in the
Bond amount fixed by court.
Executor administrator is General rule: Trustee
exempted from filing a must file a bond. Failure Exception: The trustee may be exempted from

Bar Operations C ommissions 303

 Purple Notes
Remedial Law
giving a bond when requested by: Removal

a) Testator; a) The removal appears essential in the interest

b) All persons beneficially interested in the of the petitioners
trust(Sec. 5, Rule 98). b) The trustee is insane
c) The trustee is otherwise incapable of
CONDITIONS discharging the trust or is evidently unsuitable
to act as one
1. Inventory
Resignation
Make and return to the court a true inventory of
all real and personal estate that at the time of A trustee may resign his trust if it appears to the
the inventory shall have come to his possession court proper to allow such resignation(Sec.8 Rule
or knowledge; 98,).

2. Faithful Management 6.I.5 Extent of Authority of Trustee

Manage and dispose of all such estate according Nature of Possession

to law and the will of the testator or provisions of
the instrument or order under which he was
appointed;
3. Accounting
The possession of the property by the trustee is
not an adverse possession, but only a possession
in the name and in behalf of the owner of the
same.

Render a true account of the property in his A trustee may acquire the trust estate by
hands; and prescription provided there is a repudiation of the
trust, such repudiation being open, clear and
4. Settlement of account and delivery of unequivocal, known to the cestuique trust. In
estate. that case, prescription will commence to run from
and after said repudiation and the knowledge
At the expiration of the trust, settle his accounts thereof by the cestui(Salinas v. TuazonG.R. No. L-
in court and pay over and deliver all the estate 33626, March 2, 1931).
remaining in his hands, or due from him on such
settlement, to the person or persons entitled Territoriality of Authority of Trustee
thereto
The powers of a trustee appointed by a Philippine
6.I.3 Requisites for the Removal or court cannot extend beyond the confines of the
Resignation of a Trustee territory of the Republic of the Philippines.

The proper Court of Instance may remove a
Trustee:
1. Upon petition of the parties beneficially
interested
2. Due notice to the trustee
3. Hearing(Sec.8, Rule 98).
6.I.4 Grounds for Removal and Resignation
of a Trustee
In the execution of trusts, the trustee is bound to
comply with the directions contained in the trust
instrument defining the extent and limits of his
authority, and the nature of his power and
duties(De Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, pp.254-261, 2015).
6.J ESCHEAT
Escheat is a proceeding whereby the real and
personal property of a deceased person in the
Philippines become the property of the state
upon his death, without leaving any will or legal
heirs (21 CJS, Sec. 1, p. 848).

304 Center for Legal Education and Research

 Purple Notes
Escheat is an incident or attribute of sovereignty,
and rests on the principle of the ultimate
ownership by the state of all property within its
jurisdiction (30 C.J.S., 1164.).
KINDS OF ESCHEAT
a) Unclaimed Balances Act -Unclaimed/Dormant
balances in banks (Act No. 3936)
b) Reversion Proceedings - A petition for
reversion of property alienated in violation of
the Constitution or statute (Rule 91, Sec. 5)
c) Intestate leaving no heir - A petition may be
filed when a person dies intestate, with real
properties within the Philippines, leaving no
heir entitled to the same (Rule 91, Sec. 1)
PARTIES IN ESCHEATPROCEEDINGS
The action must be initiated by the Solicitor
General or officer acting in his stead, in behalf of
Republic of the Philippines since it is the real
party in interest in the escheat proceedings.
(Manese vs. Spouses Velasco, G.R. No. 164024
January 29, 2009)
All interested parties, especially the actual
occupant and the adjacent lot owners shall be
personally notified of the proceedings and given
the opportunity to present their valid claims.
Otherwise, the property will be reverted to the
State (Tan vs. City of Davao, G.R. No. L-44347,
September 26, 1988).
―Interested party‖ is any person alleging to
have a direct right or interest in the property
sought to be escheated (Republic vs. CA and
Solano, G.R. No. 143483, January 31, 2002).
6.J.1 When to file
When a person dies intestate, seized of real or
personal property in the Philippines, leaving no
heir or person by law entitled to the same, the
Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition
in the Court of First Instance of the province
where the deceased last resided or in which he
had estate, if he resided out of the Philippines,
setting forth the facts, and praying that the
estate of the deceased be declared
escheated (Rule 91, Sec. 1).
Remedial Law
6.J.2 Requisites for filing of petition
1. That a person died intestate;
2. That he left no heirs or person by law entitled
to the same; and
3. That the deceased left properties in the
Philippines (City of Manila vs. Archbishop of
Manila, G.R. No. 10033, August 30, 1917).
6.J.2.a. Escheat of Estates
Where to File
Regional Trial Court of the place where the
deceased was resident, or in which he had
estate, if he was a nonresident. (Rule 91, Sec 1)
Notice and Publication (Rule 91, Sec. 2)
1. entry of order.
2. Publication of order at least once a week for 6
consecutive weeks in a newspaper of general
circulation in the province.
3. Date of hearing not more than 6 months after
publication of the notice of hearing is a
jurisdictional requisite, non-compliance with
which affects the validity of the proceedings
(Divino v. Hilario, 62 Phil. 926).
Escheat proceedings cannot be converted to
settlement of the estate because the court
acquired jurisdiction to hear petition for escheat
by virtue of publication of the petition for
escheat. The jurisdiction acquired cannot be
converted into one for the distribution of the
properties of the said decedents. For such
proceedings (distribution of the estate of the
decedent) to be instituted, the proper parties
must be presented and the proceedings should
comply with the requirements of the Rule (In the
Matter of Escheat Proceedings of the Estate of the
Deceased Anne Fallon Murphy vs. Bezore, L-14157,
October 26, 1960).
General Rule: A judgment in escheat
proceedings, when rendered by a court of
competent jurisdiction, is conclusive against all
persons with actual or constructive notice.
Exception: Those who are not parties or privies
thereto are not bound by such judgment (Republic
Bar Operations C ommissions 305
 Purple Notes
Remedial Law
vs. CA and Solano, G.R. No. 143483, January 31,
2002).
6.J.2.b. Escheat of Unclaimed Balances
Unclaimed balances which include credits or
deposits of money, bullion, security or other
evidence of indebtedness of any kind, and
interest thereon with banks in favor of any
person unheard from for a period of ten (10)
years or more, together with the interest and
proceeds thereof shall be deposited with the
Insular Government of the Philippines as the
Philippine Legislature may direct (Act No. 3936,
Unclaimed Balances Act, Sec. 1)
Action to recover unclaimed balances shall be
commenced by the Solicitor General in an action
for escheat in the name of the People of the
Philippines in the Regional Trial Court of the
province where the bank is located, in which shall
be joined as parties the bank and such creditors
or depositors. All or any member of such
creditors or depositors or banks, may be included
in one action (Republic vs. CFI of Manila and Pres.
Roxas Rural Bank, Inc., G.R. No. L-30381, August 30,
1988).
6.J.3 Remedy of respondent against
petition; period for filing a claim
Motion to Dismiss
When a petition for escheat does not state facts
which entitle the petitioner to the remedy prayed
for, and even admitting them hypothetically, it is
clear that there is no ground for the court to
proceed to the inquisition provided by law, an
interested party should not be disallowed from
filing a motion to dismiss the petition which is
untenable from all standpoints. And when the
motion to dismiss is entertained upon this
ground, the petition may be dismissed
unconditionally and the petitioner is not entitled
to be afforded an opportunity to amend his
petition (Go Poco Grocery vs. Pacific Biscuit Co., 65
Phil. 443)
Motion to Dismiss as Demurrer
While the Rules do not in fact authorize the filing
of a motion to dismiss the petition presented for
that purpose, and the Rules permitting the
306 Center for Legal Education and Research
interposition of a motion to dismiss to the
complaint and answer, respectively, are not
applicable to special proceedings, nevertheless,
there is no reason of a procedural nature which
prevents the filing of a motion to dismiss based
upon any of the grounds provided for by law for
a motion to dismiss the complaint. In such a
case, the motion to dismiss plays the role of a
demurrer and the court should resolve the legal
questions raised therein (Municipal Council of San
Pedro, Laguna vs. Colegio de San Jose, 65 Phil. 318).
PERIOD FOR FILING OF CLAIM
If a devisee, legatee, heir, widow, widower, or
other person entitled to such estate appears and
files a claim thereto with the court within five (5)
years from the date of such judgment, such
person shall have possession of and title to the
same, or if sold, the municipality or city shall be
accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate; but a claim not made within the said time
shall be forever barred (Rule 91, Sec 4).
Note: Five-year period is prescribed to
encourage would-be claimants to be punctilious
in asserting their claims; otherwise, they may
lose them forever in a final judgment (Republic vs.
CA, G.R. No. 143483, January 31, 2002)
DISTRIBUTION OF PROPERTIES
Resident of the Non-resident of the
Philippines Philippines
Personal Property Respective
 municipality or city municipalities or cities
where the decedent where the properties
last resided in the are located.
Philippines.
Real Property
 municipality or city in
which the property is
situated.
WHEN ESCHEAT PROCEEDINGS WILL NOT
PROSPER
The Municipality based their claims to escheat a
certain Hacienda de San Pedro Tunasan on the
fact that certain properties including the
Hacienda were confiscated by the Crown of
 Purple Notes
Spain, which later passed on title to the property
to the Government of the Philippines. The Court
ruled that the petition for escheat cannot prosper
because it is no longer the case of real property
owned by a deceased person who has not left
any heirs or person who may legally claim it
(Municipal Council of San Pedro, Laguna vs. Colegio de
San Jose, G.R. No. L-45460, February 25, 1938).
Rule 91 does not cover properties taken from
enemy nationals as a result of World War II and
required to be transferred to the Republic of the
Philippines by the United States in accordance
with the Philippine Property Act of 1946. Such
properties belong to the Philippine government
not by virtue of the escheat proceedings but on
the strength of the transfer authorized and
required by the said Act (Republic vs. IAC, G.R. No.
73831, February 27, 1987).
The right to escheat may be waived, either
expressly or impliedly (Roman Catholic Archbishop
of Manila vs. Monte de Piedad, G.R. No. L-45496, May
5, 1939).
6.K. GUARDIANSHIP
A guardianship is a trust relation of the most
sacred character, in which one person, called a
"guardian" acts for another called the "ward"
whom the law regards as incapable of managing
his own affairs (Oropesa vs. Oropesa, G.R. No.
184528, April 25, 2012).
Governing Law
A.M. No. 03-02-05- Rule 92 to Rule 97 of
SC (May 1, 2003) the Rules of Court
Governs guardianship Governs guardianship of
over the person, incompetents who are
property or both of not minors.
minors.
Other rules in relation to Minors:
1. Rule on Examination of a Child
Witness(A.M. No. 00-4-07-SC), effective
December 15, 2000.
2. Rule on Juveniles in Conflict with the
Law(A.M. No. 02-1-18-SC), effective April 15,
2002.
3. Rule on Commitment of Children(A.M. No.
02-1-19-SC), effective April 15, 2002.
Remedial Law
4. Rule on Domestic and Inter-Country
Adoption (A.M. No. 02-6-02-SC), effective
August 22, 2002.
5. Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of
Voidable(A.M. No. 02-11-10-SC), effective
March 15, 2003.
6. Rule on Legal Separation(A.M. No. 02-11-
11-SC), effective March 15, 2003.
7. Rule on Provisional Orders(A.M. No. 02-
11-12-SC), effective March 15, 2003.
8. Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Minors(A.M.
No. 03-04-04-SC), effective May 15, 2003.
9. Rule on Violence against Women and
Their Children(A.M. No. 04-10-11-SC),
effective November 15, 2004 (following the
enactment of R.A. No. 9262, An Act Defining
Violence against Women and their Children,
Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other
Purposes, or Anti-VAWCI Law, effective March
27, 2004).
Basis of Guardianship
Where minors are involved, the State acts as
parenspatriae. It is the duty of protecting the
rights of persons or individuals who because of
age or incapability are in an unfavorable position
vis-à-vis other parties (Nery vs. Lorenzo, G.R. No. L-
23096, April 27, 1972).
Purpose of Guardianship
It is intended to preserve the ward‘s property, as
well as to render any assistance that the ward
may personally require. It has been stated that
while custody involves immediate care and
control, guardianship indicates not only those
responsibilities, but those of one in loco parentis
as well (Oropesa vs. Oropesa, G.R. No. 184528, April
25, 2012).
Kinds of Guardian
1. Legal guardian - a guardian by provision of
law, without the need for judicial
appointment.
Parents are the the legal guardian over the
persons of their minor children or in respect of
their minor children‘s property where the
value does not exceed Php.50,000.00.
Bar Operations C ommissions 307
 Purple Notes
Remedial Law
When the market value of the property or the
annual income of the child exceeds
Php.50,000.00, the parent concerned shall be
required to furnish a bond in such amount as
the court may determine to guarantee the
performance of the obligations prescribed for
general guardians.
The amount of the bond shall in no case be
less than 10% of the value of the property or
annual income of the child (Rule on
Guardianship of Minors, Sec. 16).
2. Guardian ad litem - a competent person
appointed by the court for purposes of a
particular action or proceeding involving a
minor.
In resolving whether to appoint a guardian ad
litem for the respondent, the court only
needed to make a finding that based on clear
and convincing evidence, the respondent is
incompetent and that it is more likely than not
that his welfare requires the immediate
appointment of a temporary guardian (Rivero
vs. CA, G.R. No. 141273, May 17, 2005).
3. Judicial guardian - a person appointed by
the court for the person, property or both of
the ward to represent the latter in all acts and
litigations.
6.K.1. VENUE
Where to institute guardianship
proceedings (Rule 92, Sec. 1)
1. Guardianship over incompetent – it is
filed with theRTC of the place where the
incompetent resides. If the incompetent is
anon-resident, it is filed with the RTC of the
place where the incompetent‘s property or
part thereof is situated.
―Incompetent‖ includes:
a. Those suffering the penalty of civil
interdiction;
b. Hospitalized lepers;
c. Prodigal;
d. Deaf and dumb who is unable to read and
write;
308 Center for Legal Education and Research
e. Those of unsound mind though they may
have lucid intervals;
f. Those not of unsound mind, but by reason of
weak mind, age, disease and other similar
causes, cannot, without outside aid, take care
of themselves and manage their own property
(Rule 92, Sec. 2)
2. Guardianship over a minor – it is filed with
the Family Court of the place where the
minoractuallyresides. If a non-resident, with
the Family Court of the place where the
minor‘s property or part thereof is situated.
Note: In the City of Manila, the proceedings shall
be instituted in the Juvenile and Domestic
Relations Court (Rule 92, Sec. 1).
Transfer of Venue
The court taking cognizance of a guardianship
proceeding may transfer the same to the court of
another province or municipality wherein the
ward has acquired real property, if he has
transferred thereto his bona fide residence. The
latter court shall have full jurisdiction to continue
the proceedings without requiring payment of
additional court fees (Rule 92, Sec. 3).
6.K.2. APPOINTMENT OF GUARDIANS
A creditor and mortgagee of the estate of a
minor cannot be appointed as guardian of the
person as well as the property of the latter. No
man can serve two masters (Garchitorena vs.
Sotelo G.R. No. L-47867, November 13, 1942).
Factors in selecting guardian
1. Financial situation;
2. Physical condition;
3. Sound judgment, prudence and
trustworthiness;
4. Moral character and conduct;
5. Present and past history of a prospective
appointee; and
6. Probability of his being able to exercise the
powers and duties of guardian for the full
period during which guardianship will be
necessary (Francisco vs. CA, G.R. No. L-57438,
January 31, 1984)
 Purple Notes
Remedial Law
Who may file (Rule 93, Sec. 1) persons having him of the minor or the
in their care; termination,
Guardianship Guardianship Over a non- deprivation or
over an over a Minor resident 4. Probable value and suspension of
Incompetent incompetent character of estate; parental authority;
or minor (Rule and,
93 Sec. 6) 5. Remarriage of the
5. Name of the person minor‘s surviving
1. Any relative; 1. Any relative; 1. Any relative; for whom letters of parent;
guardianship are
2. Friend; 2. Other person 2. Friend; or prayed. 6. Names, ages and
on behalf of residences of
3. Other person the minor; 3. Interested relatives within the
on behalf of person in the 4th civil degree of the
the resident 3. The minor estate. minor and of persons
incompetent himself, if 14 having him in their
who has no years of age Note: Notice care and custody;
parents or or over; shall be given
lawful through 7. Probable value,
guardian; 4. Secretary of publication. character and
DSWD and location of the
4. Director of Secretary of property of the
Health in DOH in case minor; and,
favor of of an insane
insane minor who 8. Name, age and
person who should be residence of the
should be hospitalized or person for whom
hospitalized in favor of letters of
or in favor of isolated leper; guardianship are
isolated or, prayed.
leper; or,
5. Any one
5. Any one interested in Source: De Leon and Wilwayco, Special Proceedings
interested in the estate of a Essentials for Bench and Bar, p.217, 2015 ed.
the estate non-resident
minor Note: Jurisdictional Facts that must be alleged:

Source: (De Leon and Wilwayco, Special Proceedings  Incompetency or minority of person for
Essentials for Bench and Bar, p.216, 2015 ed.) whom guardianship is sought; and
 Fact of residence of ward where the court has
Contents of verified petition (Rule 93 Sec. 2) jurisdiction.
Guardianship over Guardianship over
an Incompetent a Minor The petition shall be verified but no defect in the
petition or verification shall render void the
1. Jurisdictional facts; 1. Jurisdictional facts; issuance of letters of guardianship (Rule 93, Sec.
2).
2. Incompetency 2. Name, age and
rendering such residence of the Procedure after the filing of the petition
appointment prospective ward;
necessary or 1. The court shall fix a time and place for
convenient; 3. Ground rendering the hearing the petition (Rule 93, Sec. 3)
appointment 2. The court shall cause reasonable notice to be
3. Names, ages and necessary or
given and may direct other general or special
residences of convenient;
relatives of the notice thereof (Rule 93, Sec. 3)
incompetent, and of 4. Death of the parents 3. Any opposing party may file a written
opposition (Rule 93, Sec. 4)

Bar Operations C ommissions 309

 Purple Notes
Remedial Law
4. The court shall hear the evidence of the
parties in support of their respective
allegations (Rule 93, Sec. 5)
5. Final orders or judgment shall be served (Rule
93, Sec. 8)
Court to set the petition for hearing notice
(Rule 93, Sec. 3)
General Rule: Publication is not required, only
notice.
Exception: In case of non-resident incompetent.
To whom notice served
1. Persons residing in the Philippines mentioned
in the petition; and
2. Incompetent or minor if 14 years of age or
over.
Creditors need not be identified and
notified
The rules do not necessitate that creditors of the
minor or incompetent be identified and notified.
Rationale: Presence of creditors is not essential
to the proceedings for appointment of a guardian
because they will only insist that the supposed
minor or incompetent is actually capacitated to
enter into contracts, so as to preserve the validity
of said contracts and keep the supposed minor or
incompetent obligated to comply therewith
(Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008).
Opposition to petition(Rule 93, Sec. 4)
Note: The written opposition need not be
verified.
Grounds
1. Competency of alleged incompetent or
majority of the alleged minor; or
2. Incompetency of person for whom letters are
prayed.
In addition, oppositor may likewise pray for
the dismissal of the petition; or that letters of
guardianship be issued in his favor or any
person suitable named in the opposition.
310 Center for Legal Education and Research
The ground of majority of the alleged minor
can only be raised before the Family Court
which has exclusive jurisdiction over
guardianship of minors (Rule on Guardianship of
Minors, Sec. 10).
Hearing and order for issuance of letters of
guardianship (Rule 93 Sec. 5)
During the hearing:
1. Alleged incompetent must be present, if able
to attend;
2. Required notice must be shown to have been
given; and
3. Court shall receive evidence.
If person is indeed incompetent, the court shall
appoint a suitable guardian and issue letters of
guardianship.
Parents as guardians (Rule 93, Sec. 7)
1. If the value of the property or the annual
income of the child is Php. 50,000 or less -
joint exercise of legal guardianship by the
father and mother
In case of disagreement, the father‘s decision
prevails, unless there is judicial order to the
contrary.
2. If the value of the property or the annual
income of the child exceeds Php.50,000 pesos
- verified petition must be filed for approval of
bond by the concerned parent
The amount of such bond, which must not be
less than 10% of the value of the property or the
annual income of the child, is to be determined
by the court (Rule on Guardianship of Minors, Sec.
16).
Service of judgment
Final orders or judgments shall be served upon
the civil registrar of the municipality or city where
the minor or incompetent person resides or
where his property or part thereof is situated
(Rule 93, Sec. 8).
 Purple Notes
6.K.3. GENERAL POWERS AND DUTIES OF
GUARDIANS
1. To have the care and custody of the person of
his ward, and the management of his estate,
or the management of the estate only, as the
case may be (Rule 96, Sec. 1).
Note: That right to manage the ward's estate
carries with it the right to take possession
thereof and recover it from anyone who
retains it, 36 and bring and defend such
actions as may be needful for this purpose
(Caniza vs CA, G.R. No. 110427 February 24,
1997).
2. To pay the ward's just debts (Rule 96, Sec. 2).
3. To settle accounts, collect debts, and appear
in actions for the ward (Rule 96, Sec. 3).
4. To manage the estate of his ward frugally and
without waste, and apply the income and
profits thereon to the maintenance of the
ward (Rule 96, Sec. 4).
5. To join in an assent to a partition of real or
personal estate held by the ward jointly or in
common with others when authorized by the
court (Rule 96, Sec. 5).
6. To initiate a complaint when anyone is
suspected of having embezzled, concealed or
conveyed away any money, goods or interest,
or a written instrument belonging to the ward
or his estate so that the court may cite the
suspected person to appear for examination
and make such orders as will secure the
estate (Rule 96, Sec. 6).
7. To render to the court an inventory of the
estate of his ward within three (3) months
after his appointment, and annually after such
appointment an inventory and account, the
rendition of any of which may be compelled
upon the application of an interested person
(Rule 96, Sec. 7).
8. To initiate proceedings for securing an
inventory and appraisement whenever any
property of the ward not included in an
inventory already rendered is discovered, or
succeeded to, or acquired by the ward within
three (3) months after such discovery,
succession, or acquisition(Rule 96, Sec. 7).
9. To present his account to the court for
settlement and allowance upon the expiration
of a year from the time of his appointment,
Remedial Law
and as often thereafter as may be required
(Rule 96, Sec. 8).
6.K.4. TERMINATION OF GUARDIANSHIP
Over an Incompetent Over a Minor
1. Ward has been 1. Ward attains the age
determined to be of majority.
competent by the 2. Ward has died.
guardianship court.
2. Guardianship is no
longer necessary.
Source: De Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, 2015, p.231
Proceedings for the Determination of
Present Competency of the Ward
1. Filing by the ward, his guardian, relative or
friend of a petition that competency of the
ward be judicially determined.
The petition shall be verified by oath and shall
state that such person is then competent.
2. Upon receipt of the petition, the court shall fix
a time for hearing the questions raised
thereby and cause reasonable notice thereof
to be given to the guardian of the person so
declared incompetent, or to the ward.
3. On the trial, the right to the relief demanded
may be contested by the guardian or relatives
of the ward and, in the discretion of the court,
by any other person. Witnesses may also be
called and examined by the parties or by the
court on its own motion.
4. If it be found that the person is no longer
incompetent, his competency shall be
adjudged and the guardianship shall cease.
Note: The guardian or the ward need not
institute another proceeding for the declaration of
the ward‘s competency. The petition for such
declaration is merely a continuation of the
guardianship proceedings.
Other grounds
1. Removal of incompetent guardian
Bar Operations C ommissions 311
 Purple Notes
Remedial Law
A guardian, once appointed, may be removed Legal When the The father and the
in case he: guardian- property of the mother shall jointly
ship of child under exercise legal
a. Becomes physically disabled or parents parental guardianship over
incapacitated; authority is the person and
b. Becomes insane or mentally incapacitated; worth property of their
c. Mismanaged or wasted the estate; Php.2,000 or unemancipated
d. Failed to render account or make return for less, the father common child
or the mother, without the
30 days after it is due;
without the necessity of a
e. Convicted of crime; or, necessity of court appointment.
f. Becomes moral delinquent (Francisco vs. CA, court appoint-
G.R. No. L-57438 January 31, 1984) ment, shall be
his legal
2. Resignation of guardian guardian.

A guardian may resign when it appears proper When the

to allow the same (Rule 97, Sec. 2). property of the
child is worth
more than
Upon the guardian‘s resignation or removal, the
Php.2,000, the
court may appoint another in his place (Rule 97, father or the
Sec. 2). mother shall
be considered
Amendments to Provisions of Rules of guardian of the
Court child's property

Case Study Not required Required

Rules of A.M. NO. 03-02-
Court 05

Scope Minors and Minors.

Incom-petents Manner of No express At the discretion of
Hearing provision. the court, the
hearing on
Venue RTC or MTC Family Court of the guardianship may
province or city be closed to the
where the minor public and the
actually resides or records of the case
if non-resident, of shall not be
the province or city released without
where his property its approval.
or any part thereof
is situated. Order of No order of Section 6 provides
preference preference. for order of
preference which
may be observed
as far as
practicable.

Qualifications No express Section 5 provides

of Guardian provision. for qualifications of
guardians.

Grounds for Minority or Section 4 provides

petition incompetency for specific
grounds for the

312 Center for Legal Education and Research

 Purple Notes
Remedial Law
appointment of a
c.) Adopter is married to a Filipino citizen and
guardian over the seeks to adopt jointly with his/her spouse a
person or relative of the latter within the 4th civil
property, or both, degree of consanguinity or affinity. (Sec.
of a minor 7(b), R.A. 8552)

6.L. ADOPTION State policy prefers adoption by the child‘s

extended family over adoption by an unrelated
Adoption is the process of making a child, personSec. 2(a), R.A. 8552).
whether related or not to the adopter, possess in
general, the rights accorded to a legitimate child. Domestic adoption is likewise preferred to
It is a juridical act, a proceeding in rem which preserve the child‘s identity and culture(Sec.
creates between two persons a relationship 2(c)(iv), R.A. 8552).
similar to that which results from legitimate
paternity and filiation(Atty. Elmer Rabuya, Civil Law WHO MAY BE ADOPTED
Reviewer Vol. 1, p.231, 2017 ed.).
Domestic Adoption Inter-Country
Adoption
6.L.1. Distinguish domestic adoption from (a) A child legally (a) A child legally
inter-country adoption(Atty. Elmer Rabuya, Civil available for available for
Law Reviewer Vol. 1, p.232, 2017 ed.) adoption; or adoption; or (b) a
(b) a child in whose child in whose favor
favor a DSWD a DSWD
Domestic Adoption Inter-Country
certification to be certification to be
Adoption
legally available for legally available for
Applicability adoption has been adoption has been
Entire adoption process Petition for adoption is issued; or issued; or (c) one
takes place in the filed, supervised custody (c) one who has who has voluntarily
Philippines is undertaken and decree voluntarily committed by his or
of adoption is issued committed by his or her parents or legal
outside the Philippines her parents or legal guardian.(Sec.7 (a),
Adopter is a Filipino Adopter is a Filipino guardian. Domestic Adoption
citizen permanently citizen permanently Act)
residing in the Philippines residing abroad
Applies to a foreigner Applies to a foreigner The legitimate
who has been residing in who does not satisfy the son/daughter of one of
the Philippines for at least residency requirement the spouse by the other
3 continuous years prior under R.A. 8552 spouse (Sec.8 (b),
to the filing of the Domestic Adoption Act)
petition for adoption and
maintained such Illegitimate son/daughter
residency until the by a qualified adopter to
adoption decree has been improve status to
issued legitimate (Sec. 8 (c),
Domestic Adoption Act)
Residency requirement may be waived if:
A person of age, if
consistently considered
a.) Adopter is a former Filipino who seeks to
and treated by the
adopt a relative within the fourth civil degree adopter(s) as his/her
of consanguinity or affinity; own child since
b.) Adopter seeks to adopt the legitimate minority(Sec. 8 (d),
son/daughter of his or her Filipino spouse; Domestic Adoption Act)
or

Bar Operations C ommissions 313

 Purple Notes
Remedial Law
A child whose adoption biological parent of and example to all his
has been rescinded(Sec. adoptee; or children, including the
8 (e), Domestic Adoption child to be adopted;
-Adopter is the
Act) vii. Residing in a country
spouse of the
with whom the
adoptee‘s parents Philippines has diplomatic
A child whose biological
parents have died(Sec. 8 viii. Permanently residing relation and whose
(f), Domestic Adoption in the Philippines government maintains a
Act) similarly authorized and
accredited agency and
that adoption is allowed
by that country;
―Certification Declaring a Child Legally viii. Possesses all the
Available for Adoption‖ applies only to qualifications and none of
surrendered, abandoned, neglected and the disqualifications
dependent children as mentioned in R.A. provided in ICAA and
9523(Sec. 4, IRR of R.A. 9523). other applicable
Philippine laws;
Under Sec. 8 of R.A. 9523, the certification that a ix. At least 27 years of
child is legally available for adoption shall be age at the time of
application; and
issued by the DSWD in lieu of a judicial order,
thus making the entire process administrative in x. At least 16 years older
than the adoptee but this
nature.(Sec. 8, R.A. 9523).
may be waived if:
The law does not prohibit relatives, either by -Adopter is the
blood or consanguinity, to adopt each biological parent of
other(Santos, Jr. vs. Republic, G.R. No. L-22523, adoptee; or
September 29, 1967). -Adopter is the
spouse of the
adoptee‘s parents
WHO MAY ADOPT
Filipino citizens Filipino citizens Aliens Aliens

i. Of legal age; i. Permanent resident of
a foreign country;
ii. In possession of full
civil capacity and legal ii. Has the capacity to act
rights; and assume all the rights
and responsibilities of
iii. Of good moral
parental authority under
character;
Philippine laws;
iv. Not convicted for any
iii. Has undergone the
crime involving moral
appropriate counselling
turpitude;
from an accredited
v. Emotionally and
counselor in the country
psychologically capable of
of domicile;
caring for children;
iv. Not convicted for any
vi. In a position to
crime involving moral
support and care his/her
turpitude;
children in keeping with
the means of the family; v. Eligible to adopt under
Philippine laws;
vii. At least 16 years
older than the adoptee vi. In a position to
but this may be waived provide proper care and
if: support and give
necessary moral values
-Adopter is the
Same qualifications for i. At least 27 years old at
Filipinos;and in addition: the time of application;
i. His/her country has ii. At least 16 years older
diplomatic relations with than the adoptee unless
the Philippines; adopter is the biological
ii. His/her government parent or spouse of such
allows the adoptee to parent;
enter his/her country as iii. Has the capacity to
his/her adopted act and assume all the
son/daughter; rights and responsibilities
of parental authority
iii. Living in the
under Philippine laws;
Philippines for at least 3
consecutive years prior to iv. . Has undergone the
the application and appropriate counselling
maintained such from an accredited
residency until the counselor in the country
issuance of the adoption of domicile;
decree; and iv. Not convicted for any
iv. Certified by his/her crime involving moral
diplomatic or consula turpitude;
office or any appropriate v. Eligible to adopt under
agency that he(s)he has

314 Center for Legal Education and Research

 Purple Notes
the legal capacity to his/her national law;
adopt in his/her (Sec. 9, Inter-Country
country(Sec. 7(b), Adoption Act)
Domestic Adoption Act) vi. Comes from a country
with whom the
Philippines has diplomatic
relations and whose
government maintains a
similarly authorized and
accredited agency and
that adoption is allowed
under his/her national
law; and
vii. Possesses all the
qualifications and none of
the disqualifications
provided in ICAA and
other applicable
Philippine laws.
Remedial Law
and
5. Spouse.
(Atty. Elmer Rabuya, Civil Law Reviewer Vol. 1, p.236-
246, 2017 ed.)
6.L.2. Domestic Adoption
The governing law is R.A. 8552 or the Domestic
Adoption Act of 1998. The procedure is governed
the Rule on Adoption (A.M. 02-06-02-SC), which
took effect on August 22, 2002.
In domestic adoption, the entire adoption process
beginning from the filing of the petition up to the
issuance of the adoption decree takes place in
the Philippines(Atty. Elmer Rabuya, Civil Law
Reviewer Vol. 1, p.232, 2017 ed.).

Procedure(Atty. Elmer Rabuya, Civil Law Reviewer

Requirement for joint adoption of spouses Vol. 1, p.242-245, 2017 ed.)
GR: Husband and wife If adopter is married.
shall jointly adopt. His/her spouse must
Exception: jointly file for the Order of Hearing
adoption.(Sec. 9 (b),
1. If one spouse seeks to
Inter-Country Adoption
adopt the legitimate Publication at least once a week for three consecutive weeks
Act)
son/daughter of the in newspaper of general circulation in province or city where
other; the court is situated. Court shall notify the Solicitor General if
the petition prays for a change of name.
2. If one spouse seeks to
adopt his/her own
illegitimate son/daughter Child and Home Study Report
but the other spouse
must give his/her
consent; Hearing within six (6) months from issuance of order
3. If the spouses are
legally separated from
each other.(Sec. 7, Supervised Trial Custody for at least six (6) months
Domestic Adoption Act)
Consent required
1. Adoptee, if 10 years of 1. Adopter‘s biological or Decree of Adoption
age or over; adopted children above
2. Biological parent(s) of 10 years old (Sec. 10,
Inter-Country Adoption Amendment of Birth Certificate
the child, if known, or
legal guardian, or the Act); and
proper government 2. DSWD, if a successful
instrumentality which has pre-adoptive relationship 1. Administrative Proceedings
custody over the child; is formed between the
3. Legitimate and applicant and the The process declaring a child legally available for
adopted children, 10 child.(Sec. 48, IRR of adoption is entirely administrative and under the
years of age or over, if Inter-Counrty Adoption present law, only DSWD has the authority to
any; Act) issue such certification.
4. Illegitimate children,
10 years of age or over, if
living with said adopter
and the latter‘s spouse;

Bar Operations C ommissions 315

 Purple Notes
Remedial Law
The following are exempted from the
requirement of a Certification Declaring a
child legally available for adoption:
a) Adoption of a illegitimate child by any of
his/her biological parents;
b) Adoption of the child by his/her step-
parent;and
c) Adoption of a child by a relative within the 4th
degree of consanguinity or affinity.(Sec. 4, IRR
of R.A. 9523)
2. Judicial Proceedings
Venue of Filing the Application
In the Family Court of the province or city where
the prospective parents reside.(Sec. 6, Rule on
Adoption)
After filing
The petition shall not be set for hearing without a
case study report by a licensed social
worker.(Sec. 11, R.A. 8552)
Supervised Trial Custody
1. Temporary parental authority is vested in
prospective adopter for atleast 6 months.
2. If adopter is an alien, the completion of the
six-month mandatory trial custody is
mandatory except:
a. Former Filipino who seeks to adopt a
relative within the fourth civil degree of
consanguinity or affinity;
b. One seeks to adopt the legitimate
son/daughter of his or her Filipino spouse;
or
c. One is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative of the latter within the 4th civil
degree of consanguinity or affinity.
3. Under the R.A. 10165, in case the adoption of
a foster child by the designated foster
parents, trial custody may be partially
waived(Atty. Elmer Rabuya, Civil Law Reviewer
Vol. 1, 2017, p.242-245).
316 Center for Legal Education and Research
6.L.2.aEffects of adoption
1. Transfer of Parental authority
All legal ties between the biological parent(s) and
the adoptees shall be severed and the same shall
be vested to the adopters, except when the
biological parent is the spouse of the adopter (Sec.
16, R.A. 8552).
However, when the adopter dies during the time
the adopted is still a minor or incapacitated; the
parental authority of the biological parent is
deemed to have been restored(Bartolome vs. SSS,
740 SCRA 78, 2014).
2. Legitimacy
The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights
and obligations provided by law to legitimate
children born to them without discrimination.
(Bartolome vs. SSS, 740 SCRA 78, 2014)
But the relationship established is by the
adoption is only limited to the adopting parents
and does not extend to their other relatives,
except as expressly provided by law(Santos, Jr. vs.
Republic, G.R. No. L-22523 ; September 29, 1967).
3. Successional Rights
In legal and instestate succession, the adopter(s)
and adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation.However, if the adoptee and his/her
biological parent(s) had left a will, the law on
testamentary succession shall govern.(Sec. 18,
DAA)
Article 189 (3) of the Family and Section 18,
Article V of R.A. 8552 provide that the adoptee
remains an intestate heir of his/her biological
parent. Likewise, the biological parents retain
their rights of succession to the estate of the
adopted child pursuant to Art. 190 (2) of the
Family Code.
 Purple Notes
4. Right to use surname of adopter
The adopted child has the right to use the
surname of the adopter(s). But such surname
refers to the adopter‘s own surnmane and not to
her surname acquired by virtue of marriage
because adoption created a personal relationship
only between the adopter and the adopted. [Art.
189(1), Family Code]
5. Issuance of new certificate and First
Name and Surname of the Adoptee(Sec. 14,
R.A. 8552)
The adoption decree shall state the name by
which the child is to be known. An amended
certificate of birth shall be issued by the Civil
Registry attesting to the fact that the adoptee is
the child of the adopter(s) by being registered
with his/her surname(Sec. 13, R.A. 8552).
The original certificate of birth shall be stamped
―cancelled‖ with the annotation of the issuance of
an amended birth certificate in its place and shall
be sealed in the civil registry records. The new
birth certificate to be issued to the adoptee shall
not bear any annotation that it is an amended
issue(Sec. 14, R.A. 8552).
Retroactive effects of Adoption Decree(Sec.
13, R.A. 8552)
The adoption decree ―shall be effective as of the
date the original petition was filed‖ and that this
rule ―shall also apply in case the petitioner(s) dies
before the issuance of the decree of adoption to
protect the interest of the adoptee.
However, no retroactive effect may be given to
the granting of the petition for adoption for the
purpose of imposing a liability upon the adopting
parents accruing at a time when adopting parents
had no actual or physical custody over the
adopted child. (Tamargo vs. CA, 209 SCRA 518,
1992)
6.L.2.b Instances when adoption may be
rescinded
Grounds: (Committed by the adopter)
Remedial Law
a) Repeated physical and verbal maltreatment
by the adopter(s) despite having undergone
counselling;
b) Attempt on the life of the adoptee;
c) Sexual assault or violence; and
d) Abandonment and failure to comply with
parental obligations(Sec 19, R.A. 8552).
Who may rescind?
The adopted child has the sole right to severe the
legal ties created by the adoption. (Sec. 19, R.A.
8552)
Who may file?
a) Adoptee who is over 18 years of age;
b) If the adoptee is a minor, with the assistance
of the DSWD;
c) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.
(Sec. 19, RA 8552)
The remedy of annulment of judgment could be
resorted to if the adoption was found to have
been obtained fraudulently, which action must be
brought within four (4) years from discovery of
the fraud(Castro vs. Gregorio, 738 SCRA 415, 2014).
6.L.2.c Effects of rescission of adoption
1. Restoration of Parental authority of the
adoptee‘s biological parent(s), if known, or the
legal custody of the DSWD if the adoptee is
still a minor or incapacitated;
2. Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other
shall be extinguished;
3. Cancellation of the amended certificate of
birth of the adoptee and restoration of his/her
original birth certificate; and
4. Succession rights shall revert to its status prior
to adoption but only as of the date of
judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be
respected.
6.L.3. Inter-country adoption
The governing law is R.A. No. 8043 or the Inter-
Country Adoption Act of 1995 (ICAA). Its
Bar Operations C ommissions 317
 Purple Notes
Remedial Law
procedure is governed by the Amended
Implementing Rules and Regulations on ICAA.
Procedure
1. Administrative Proceedings
The process declaring a child legally available for
adoption is entirely administrative and under the
present law, only DSWD has the authority to
issue such certification.(Sec. 2(1), R.A. 9523)(Atty.
Elmer Rabuya, Civil Law Reviewer Vol. 1, p.242-245,
2017 ed.)
The following are exempted from the
requirement of a Certification Declaring a child
legally available for adoption:
i. Adoption of a illegitimate child by any of
his/her biological parents;
ii. Adoption of the child by his/her step-parent;
and
iii. Adoption of a child by a relative within the 4th
degree of consanguinity or affinity.
Judicial Proceedings
Venue of Filing the Application
The application may be filed either in –
a) The family court having jurisdiction over the
place where the child resides or may be
found;
b) Inter-Country Adoption Board (ICAB),
through an intermediate agency in the
country of the prospective adopters(Sec. 10,
R.A. 8043).
After filing
1. If filed in the Family Court, it will determine
the sufficiency of the petition, after which the
petition is transferred to ICAB.
2. If petition is already with ICAB, matching of
the applicant with an adoptee is conducted.
3. After matching, the child is personally fetched
by the applicant for the trial custody which will
take place outside of the Philippines(Sec. 40-
42, Implementing Rules on ICAA).
318 Center for Legal Education and Research
Trial Custody
1. It takes place outside of the country and
under supervision of the foreign adoption
agency for six months.
2. If unsuccessful, ICAB shall look for another
prospective applicant. Repatriation of the child
is to be resorted only as a last resort.
3. If unsuccessful, ICAB transmits a written
consent for the adoption to be executed by
the DSWD and the applicant then files a
petition for adoption in his/her country.(Sec.
49, Implementing Rules on ICAA)
6.L.3.a When allowed
Inter-Country Adoption Act (ICAA) is applicable if:
a) Adopter is a Filipino citizen permanently
resides abroad; and
b) A foreigner who does not satisfy the
residency requirement under DAA but is
qualified to adopt under ICAA. (See
discussion under the distinction of Domestic
and Inter-Country Adoption)
6.L.3.b Functions of the Regional Trial
Court
An application to adopt a Filipino child shall be
filed with the Regional Trial Court having
jurisdiction over the child(Sec. 10, R.A. 8043).
6.L.3.c ―Best interest of the child‖ standard
In choosing the parent to whom custody is given,
the welfare of the minors should always be the
paramount consideration. Courts are mandated
to take into account all relevant circumstances
that would have a bearing on the children‘s well-
being and development. Aside from the material
resources and moral and social situations of each
parent, other factors may also be considered to
ascertain which one has the capability to attend
to the physical, educational, social and moral
welfare of the children. Among these factors are
the previous care and devotion shown by each of
the parents; their religious background, moral
uprightness, home environment and time
availability; as well as the children‘s emotional
and educational needs(Pablo-Gualberto vs.
Gualberto, G.R. No. 154994, June 28, 2005).
 Purple Notes
Simulation of birth records
Tampering of the civil registry to make it appear
in the record of birth that a child was born to
person who is not such child‘s biological mother,
causing the loss of the true identity and status of
such child(Sec. 3(f), R.A. 11222).
When is administrative adoption allowed
1. In cases of adoption for the purpose of
rectifying a simulated birth within ten years
from the effectivity of R.A. 11222, provided
that:
2. Reason for adoption is to rectify a simulated
birth;
3. Simulation was done for the best interest of
the child and the child is treated as a child of
the person responsible;
4. Adoption is filed within ten years from the
effectivity of R.A. 11222;
5. The child is declared legally available for
adoption by DSWS; and
6. The child is living with the person who
simulated the birth certificate for atleast
three years before the effectivity of R.A.
11222.(Sec. 4-5, R.A. 11222)
6.M. WRIT OF HABEAS CORPUS
WRIT OF HABEAS CORPUS UNDER RULE
102
Habeas corpus is a writ directed to the person
detaining another, commanding him to produce
the body of the prisoner at a designated time and
place, with the day and cause of his capture and
detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ
shall consider in that behalf (Ilusorio vs. Bildner,
G.R. No. 139789, May 12, 2000).
To what cases the writ extends (Rule 102, Sec.
1)
General Rule: The writ of habeas corpus
extends to all cases of illegal confinement or
detention, involving either of two things:
a) the deprivation of liberty; or,
Remedial Law
b) the rightful custody of any person is withheld
from the person entitled thereto
Exception: When otherwise expressly provided
by law.
Purpose
Specifically, the writ is availed of to:
a) obtain immediate relief from illegal
confinement;
b) liberate those who may be imprisoned without
sufficient cause;
c) deliver them from unlawful custody (De Leon
and Wilwayco, Special Proceedings Essentials for
Bench and Bar, p.283, 2015 ed.)
A writ of habeas corpus is essentially a writ of
inquiry and is granted to test the right under
which a person is detained (Velasco vs. CA, G.R.
No. 118644, July 7, 1995).
The writ is not issued when the person is in
custody because of a judicial process or a valid
judgment (Adonis vs. Tesoro, G.R. No. 182855, June
5, 2013).
Nature
Proceedings in habeas corpus are separate and
distinct from the main case from which the
proceedings spring (Ching vs. Insular Collector of
Customs, G.R. No. L-10972, January 28, 1916).
� A petition for the issuance of a writ of habeas
corpus is a special proceeding governed by
Rule 102 of the Rules of Court, as amended.
In Ex Parte Billings, it was held that habeas
corpus is that of a civil proceeding in
character. It seeks the enforcement of civil
rights. Resorting to the writ is not to inquire
into the criminal act of which the complaint is
made, but into the right of liberty,
notwithstanding that the act and the
immediate purpose to be served is relief from
illegal restraint (Mangila vs. Pangilinan, G.R. No.
160739, July 17, 2013)
� Habeas corpus is not in the nature of a writ of
error; nor intended as substitute for the trial
court‘s function. It cannot take the place of
appeal, certiorari or writ of error. The writ
cannot be used to investigate and consider
Bar Operations C ommissions 319
 Purple Notes
Remedial Law
questions of error that might be raised a. That the person in whose behalf the
relating to procedure or on the merits. The application is made is imprisoned or
inquiry in a habeas corpus proceeding is restrained of his liberty;
addressed to the question of whether the b. The officer or name of the person by whom
proceedings and the assailed order are, for he is so imprisoned or restrained; or, if both
any reason, null and void. The writ is not are unknown or uncertain, such officer or
ordinarily granted where the law provides for person may be described by an assumed
other remedies in the regular course, and in the appellation, and the person who is served with
absence of exceptional circumstances. the writ shall be deemed the person
Moreover, habeas corpus should not be intended;
granted in advance of trial (Mangila vs. c. The place where he is so imprisoned or
Pangilinan, G.R. No. 160739, July 17, 2013) restrained, if known;
� Habeas corpus is a summary remedy. It is d. A copy of the commitment or cause of
analogous to a proceeding in rem when detention of such person, if it can be
instituted for the sole purpose of having the procured without impairing the efficiency of
person of restraint presented before the judge the remedy; or, if the imprisonment or
in order that the cause of his detention may restraint is without any legal authority, such
be inquired into and his statements final. The fact shall appear (Rule 102, Sec. 3).
writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person Return
who holds him in what is alleged to be the
unlawful authority. Hence, the only parties When return is made: when the person to be
before the court are the petitioner (prisoner) produced is imprisoned or restrained by an officer
and the person holding the petitioner in
custody, and the only question to be resolved Who shall make the return:
is whether the custodian has authority to
deprive the petitioner of his liberty. The writ a. the officer or person by whom another
may be denied if the petitioner fails to show person is so imprisoned or restrained; and,
facts that he is entitled thereto ex b. in other cases, the person in whose custody
meritojusticias(Mangila vs. Pangilinan, G.R. No. the prisoner is found (Rule 102, Sec.10)
160739, July 17, 2013).
6.M.2 Contents of the Return
Who may grant the writ (Rule 102, Sec. 2)
The return must be in writing, addressed to the
Court When Enforceability court or judge before whom the writ is
Petition may returnable, and stating plainly and
be Filed unequivocably:
SC or any On any day Anywhere in the
Justice and at any Philippines a. Whether one has or has not the party in his
thereof time custody or power, or under restraint;
CA or any Instances Anywhere in the b. If he has the party in his custody or power, or
Justice authorized by Philippines under restraint — the authority and the true
thereof law and whole cause thereof, set forth at large,
RTC or any On any day Only within the with a copy of the writ, order, execution, or
judge thereof and at any court‘s judicial
other process, if any, upon which the party is
time district
held;
c. If the party is in his custody or power or is
6.M.1 Contents of Petition
restrained by him, and is not produced — the
nature and gravity of the sickness or infirmity
Application for the writ shall be by petition signed
of such party by reason of which he cannot,
and verified either by the party for whose relief it
without danger, be brought before the court
is intended, or by some person on his behalf, and
or judge;
shall set forth:

320 Center for Legal Education and Research

 Purple Notes
d. If he has had the party in his custody or
power, or under restraint, and has transferred
such custody or restraint to another — to
whom, at what time, for what cause, and by
what authority such transfer was made (Rule
102, Sec. 10).
6.M.3 Peremptory Writ and Preliminary
Citation
The writ of habeas corpus may be classified
as:
a. Preliminary citation
Remedial Law
6.M.5 When writ disallowed or discharged
(Rule 102, Sec. 4)
The writ of habeas corpus shall NOT be allowed
when the person alleged to be restrained of his
liberty is in the custody of an officer:
a) under process issued by a court or judge; or,
b) by virtue of a judgment or order of a court
of record; and,
c) the court or judge had jurisdiction to issue
the process, render the judgment or make
the order

In addition, the discharge of the writ of habeas

If the person is detained under
corpus shall NOT be authorized upon showing
governmental authority and the illegality of
that a person is:
his detention is not patent from the petition
for the writ, the court issues the citation to a) charged with an offense;
the government officer having custody to b) convicted of an offense; or
show cause why the habeas corpus writ c) suffering imprisonment under lawful judgment
should not issue(Lee Yick Hon v. The Insular
Collector of Customs, G.R. No. L-16779, March 6.M.6 Distinguish Writ of Habeas Corpus,
30, 1921); Writ of Amparo and Writ of Habeas Data

b. Peremptory writ Habeas Habeas Data Writ of Amparo

Corpus
Extends to Covers Designed to
It is a written document unconditionally
all cases of extralegal protect the image,
commanding the respondent to have the illegal killings and privacy, honor,
body detained person before the court at a confinemen t enforced information, and
time and place specified therein (De Leon and or detention disappearances freedom of
Wilwayco, Special Proceedings Essentials for (deprivation or threats information of an
Bench and Bar, 2015, p.399). of liberty), or thereof individual, and to
6.M.4 When not proper or available: where provide a forum to
rightful enforce one‘s right
a. For asserting or vindicating denial of right to custody is to the truth and to
bail (Galvez vs. CA,GR No. 1140406, Oct. 24, withheld informational
1994)); from person privacy (Vivares v.
b. For correcting errors in appreciation of facts entitled St. Theresa‘s
or appreciation of law. Where the trial court thereto College, G.R. No.
had no jurisdiction over the cause, over the 202666, 2014)
person of the accused, and to impose the (See Annexes for a more detailed comparison)
penalty provided for by law, the mistake
committed by the trial court, in the When Habeas Corpus is not Available:
appreciation of the facts and/or in the
appreciation of the law cannot be corrected � As a general rule, the writ of habeas corpus
by habeas corpus (Sotto vs. Director of Prisons, will not issue where the person alleged to be
May 30, 1962); restrained of his liberty in custody of an
c. Once a person detained is duly charged in officer under a process issued by the court
court, he may no longer file a petition which jurisdiction to do so (Serapio vs.
for habeas corpus. His remedy would be to Sandiganbayan, G.R. No. 148468, 396 SCRA 443,
quash the information or warrant (Rodriguez January 28, 2003).
vs. Judge Bonifacio, A.M. No. RTJ-99-1510, � Restraint that is lawful and pursuant to a
November 26, 2000). court process cannot be inquired into through

Bar Operations C ommissions 321

 Purple Notes
Remedial Law
habeas corpus (Mangila vs. Pangilinan, 701
SCRA 355, G.R. No. 160739, July 17, 2013).
� In exceptional circumstances, habeas corpus
may be granted by the courts even when the
person concerned is detained pursuant to a
valid arrest or his voluntary surrender, for
this writ of liberty is recognized as "the
fundamental instrument for safeguarding
individual freedom against arbitrary and
lawless state action" due to "its ability to cut
through barriers of form and procedural
mazes." Thus, in previous cases, we issued
the writ where the deprivation of liberty,
while initially valid under the law, had later
become invalid, and even though the persons
praying for its issuance were not completely
deprived of their liberty (Serapio vs.
Sandiganbayan, G.R. No. 148468, 396 SCRA 443,
January 28, 2003).
� A release that renders a petition for a writ of
habeas corpus moot and academic must be
one which is free from involuntary restraints.
Where a person continues to be unlawfully
denied one or more of his constitutional
freedoms, where there is present a denial of
due process, where the restraints are not
merely involuntary but appear to be
unnecessary, and where a deprivation of
freedom originally valid has, in the light of
subsequent developments, become arbitrary,
the person concerned or those applying in his
behalf may still avail themselves of the
privilege of the writ (Moncupa vs. Enrile, G.R.
No. L-63345, January 30, 1986).
� And, lastly, it was clear that under Section
5,16 Rule 112 of the Revised Rules of
Criminal Procedure, the resolution of the
investigating judge was not final but was still
subject to the review by the public
prosecutor who had the power to order the
release of the detainee if no probable cause
should beultimately found against her. In the
context of the rule, Mangilahad no need to
seek the issuance of the writ of habeas
corpus to secure her release from detention.
Her proper recourse was to bring the
supposed irregularities attending the conduct
of the preliminary investigation and the
issuance of the warrant for her arrest to the
attention of the City Prosecutor, who had
been meanwhile given the most direct access
to the entire records of the case, including
the warrant of arrest, following Judge
322 Center for Legal Education and Research
Pangilinan‘s transmittal of them to the City
Prosecutor for appropriate action. We agree
with the CA, therefore, that the writ of
habeas corpus could not be used as a
substitute for another available remedy
(Mangila vs. Pangilinan, G.R. No. 160739, 701
SCRA 355, July 17, 2013).
� Moreover, a petition for habeas corpus is not
the appropriate remedy for asserting one's
right to bail. It cannot be availed of where
accused is entitled to bail not as a matter of
right but on the discretion of the court and
the latter has not abused such discretion in
refusing to grant bail, or has not even
exercised said discretion. The proper
recourse is to file an application for bail with
the court where the criminal case is pending
and to allow hearings thereon to proceed
(Serapio vs. Sandiganbayan, G.R. No. 148468, 396
SCRA 443, January 28, 2003).
� No court is empowered as a judicial authority
to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion
of a writ of habeas corpus carried out by
sheriffs or by any other mesne process. That
is a matter beyond judicial authority and is
best left to the man and woman‘s free choice
(Ilusorio vs. Bildner, G.R. No. 139789, 332 SCRA
169, May 12, 2000).
As a Post-Conviction Remedy
� The writ of habeas corpus applies to all cases
of illegal confinement or detention in which
individuals are deprived of liberty. The writ
may not be availed of when the person in
custody is under judicial process or by virtue
of a valid judgment.
However, as a post-conviction remedy, it may
be allowed when, as a consequence of a
judicial proceeding, any of the following
exceptional circumstances is attendant: (1)
there has been a deprivation of a
constitutional right resulting in the restraint
of a person; (2) the court had no jurisdiction
to impose the sentence; or (3) the imposed
penalty has been excessive, thus voiding the
sentence as to such excess. (Go vs.
Dimagiba, G.R. No. 151876, June 21, 2005;
Andal vs. People,G.R. Nos. 138268-69. May 26,
1999)
 Purple Notes
� In Evangelista vs. Sistoza(G.R. No. 143881,
August 9, 2001), the accused filed a petition
for habeas corpus to secure his release from
prison, due to the amendment of PD 1866 by
RA 8249, reducing the penalty for illegal
possession of low powered firearms -- from
reclusion temporal in its maximum period to
reclusion perpetua, to prisioncorrecccional in
its maximum period.The court granted the
petition, as he has already served 9 years in
prison, more than the maximum term of his
imprisonment for robbery. He need not serve
anymore his sentence of 18 years of
reclusion temporal as minimum to reclusion
perpetua as maximum for illegal possession
of firearm, in view of said amendment and
the ruling in People vs. Ladjaalam(G.R. Nos.
136149-51, September 19, 2000).
6.M.7.WRIT OF HABEAS CORPUS
INRELATION TO CUSTODY OF MINORS(A.M.
No. 03-04-04-SC)
A verified petition for the rightful custody of a
minor may be filed by any person claiming such
right.
The petition shall be filed with the Family Court
of the province or city where the petitioner
resides or where the minor may be found.
In custody cases involving minors, the writ of
habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.
The grant of the writ depends on the
concurrence of the following requisites:
1. that the petitioner has the right of custody
over the minor;
2. that the rightful custody of the minor is being
withheld from the petitioner by the
respondents; and
3. that it is to the best interest of the minor
concerned to be in the custody of petitioner
and not that of the respondents (Masbate vs.
Relucio, G.R. No. 253498, July 30, 2018).
General Rule:After trial, the court shall render
judgment awarding custody of the minor to the
proper party considering the best interests of the
minor.
Remedial Law
Under present rules, A.M. No. 03-04-04-SC
explicitly states that "in awarding custody, the
court shall consider the best interests of the
minor and shall give paramount consideration to
the minor‘s material and moral welfare.
The best interests of the minor refer to the
totality of the circumstances and conditions as
are most congenial to the survival, protection,
and feelings of security of the minor encouraging
to her physical, psychological and emotional
development. It also means the least detrimental
available alternative for safeguarding the growth
and development of the minor." (Masbate vs.
Relucio, G.R. No. 253498, July 30, 2018).
Exception:If it appears that both parties are
unfit to have the care and custody of the minor,
the court may designate any of the following to
take charge of such minor, or commit him to any
suitable home for children:
a) the paternal or maternal grandparent of the
minor;
b) his oldest brother or sister; or,
c) any reputable person
Order of Preference (A.M. No. 03-04-04-SC, Sec.
13)
As far as practicable, the following order of
preference shall be observed in the award of
custody:
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the
minor over seven years of age and of
sufficient discernment, unless the parent
chosen is unfit;
3. The grandparent, or if there are several
grandparents, the grandparent chosen by the
minor over seven years of age and of
sufficient discernment, unless the grandparent
chosen is unfit or disqualified;
4. The eldest brother or sister over twenty-one
years of age, unless he or she is unfit or
disqualified;
5. The actual custodian of the minor over
twenty-one years of age, unless the former is
unfit or disqualified; or
Bar Operations C ommissions 323
 Purple Notes
Remedial Law
6. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor
The court may issue any order that is just and
reasonable permitting the parent who is deprived
of the care and custody of the minor to visit or
have temporary custody (De Leon and Wilwayco,
Special Proceedings Essentials for Bench and Bar,
p.419, 2015 ed.).
It is only after trial, when the court renders its
judgment in awarding the custody of the minor to
the proper party considering the best interests of
the minor, that the court may likewise issue "any
order that is just and reasonable permitting the
parent who is deprived of the care and custody of
the minor to visit or have temporary custody"
(A.M. No. 03-04-04-SC, Sec. 18)
In its judgment, the court may order either or
both parents to give an amount necessary for the
support, maintenance and education of the
minor, irrespective of who may be its custodian.
Factors to consider in determining the
amount of support:
1. financial resources of the custodial and non-
custodial parent and those of the minor;
2. physical and emotional health, special needs,
and aptitude of the minor;
3. standard of living the minor has been
accustomed to; and,
4. the non-monetary contributions that the
parents would make toward the care and well-
being of the minor (A.M. No. 03-04-04-SC, Sec.
18)
Note: Section 15 of A.M. No. 03-04-04-SC
provides for temporary visitation rights, not
temporary custody.
The court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court and
non-custodial parent or parents at least five (5)
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than three (3) days provided it does not
324 Center for Legal Education and Research
prejudice the visitation rights of the non-custodial
parent or parents(A.M. No. 03-04-04-SC, Sec. 15)
Note: Judgment on the issue of custody in the
nullity of marriage, regardless of which party
would prevail, would constitute res judicata on
the subsequent petition for habeas corpus of
minors since the former has jurisdiction over the
parties and the subject matter(Yu vs. Yu, G.R. No.
164915, March 10, 2006).
Jurisdiction of the Court of Appeals
� There is nothing in R.A. 8369 which revoked
the Court of Appeals‘ jurisdiction to issue
writs of habeas corpus involving the custody
of minors (In the Matter of Application for the
Issuance of a Writ of Habeas Corpus: Thornton vs.
Thornton, G.R. No. 154598, August 16, 2004). In
fact, the Court of Appeals and Supreme Court
have concurrent jurisdiction with family
courts in habeas corpus cases where the
custody of minors is involved (Madriñan vs.
Madriñan, G.R. No. 159374, July 12, 2007).
6.NWRIT OF AMPARO
(A.M. No. 07-9-12-SC)
6.N.1 Coverage
The petition for a writ of Amparo is a remedy
available to any person whose right to life, liberty
and security is violated or threatened with
violation by an unlawful act or omission of a
public official or employee, or of a private
individual or entity. The writ shall cover extralegal
killings and enforced disappearances or threats
thereof. (Section 1, A.M. No. 07-9-12-SC).
The writ shall cover:
1. EXTRALEGAL KILLINGS which are killings
committed without due process of law.
2. ENFORCED DISAPPEARANCES which are
attended by the following circumstances:
a. arrest/detention/abduction of a person by
a government official or organized groups
or private individuals acting within or with
direct acquiescence of the State;
b. refusal of the State to disclose the fate or
whereabouts of the person concerned, or
refusal to acknowledge the deprivation of
 Purple Notes
Remedial Law
liberty, which places such person or of National Defense v. houses, papers, and
persons outside the protection of law. Manalo |G.R. No. 180906, effects. (Secretary of
(Declaration on the Protection of All Persons October 7, 2008). National Defense v.
from Enforced Disappearances; Secretary of Manalo |G.R. No.
National Defense vs. Manalo| G.R. No. 180906, 180906, October 7, 2008;
October 7, 2008). Section 2, Article III,
1987 Constitution).
Note:In our jurisdiction, the contextual genesis, As to whom it may be invoked against
at least, for the present Amparo Rule has limited  Public official or Government
the remedy as a response to extrajudicial killings employee intrusion(Secretary of
and enforced disappearances, or threats thereof.  Private individual or National Defense v.
entity (Section 1, A.M. Manalo |G.R. No.
While the foregoing rule, as per Section 1 of A.M. 07-9-12-SC). 180906, October 7,
No. 07-9-12-SC's first paragraph, does state that 2008).
the writ is a remedy to protect the right to life,
liberty, and security of the person desiring to 6.N.3 Who may file Writ of Amparo
avail of it, the same section's second paragraph
qualifies that the protection of such rights a.) The aggrieved party himself.
specifically pertain to extralegal killings and b.) In the absence thereof, any qualified person
enforced disappearances or threats thereof, or entity in the following manner:
which are more concrete cases that involve 1. Any member of the immediate family,
protection to the rights to life, liberty and security namely: the spouse, children, and parents
(Santiago vs. Tulfo, G.R. No. 205039, October 21, of the aggrieved party;
2015) 2. Any ascendant, descendant, or collateral
relative of the aggrieved party within the
What is the nature of Writ of Amparo? fourth civil degree of consanguinity or
affinity, in default of those mentioned in
It partakes of the nature of a prerogative writ as the preceding paragraph; or
it is not criminal, civil or administrative in nature. 3. Any concerned citizen, organization,
It does not suspend the filing of criminal, civil or association, or institution, if there is no
administrative actions(Judge Ed Vincent S. Albano known member of the immediate family or
(Ret.), Remedial Law Reviewer, pp. 1313, 2010 ed.). relative of the aggrieved party. (Section 2,
A.M. No. 07-9-12-SC).
6.N.2 Difference between Writ of Amparo
and Search Warrant Where may the petition be filed

Writ of Amparo Search Warrant It may be filed with the Regional Trial Court of
As to its source the place where the threat, act, or omission was
A.M. No. 07-9-12-SC Section 2, Article III, committed or any of its elements occurred; with
 Supreme Court 1987 Constitution the Sandiganbayan, or Court of Appeals, or
exercising its Supreme Court, or any justice of such courts.
enhanced power to
(Section 3, A.M. No. 07-9-12-SC).
promulgate rules to
protect and enforce
constitutional rights. 6.N.4 Contents of petition for the writ of
(Section 5(5), Article Amparo
VIII, 1987
Constitution). The petition shall be signed and verified and shall
allege the following:
As to its coverage of its protection
Amparo production order Protection of the people
1. Personal circumstances of the petitioner;
may be likened to the from the unreasonable
production of documents intrusion of the
2. Personal circumstances of the respondent, or
or things under Section 1, government to the right if the name is unknown or uncertain, the
Rule 27 of the Rules of of the people to be respondent may be described by an assumed
Civil Procedure(Secretary secure in their person, appellation;

Bar Operations C ommissions 325

 Purple Notes
Remedial Law
3. Right violated or threatened to be violated, with supporting affidavits. (Sec.9, A.M. No.07-9-12-
and how violated or threatened; SC).
4. Investigation conducted, if any;
5. Actions and recourses taken by the petitioner 6.N.5 Effects of failure to file a return
to determine the fate or whereabouts of the
aggrieved party and the identity of the The court, justice or judge shall proceed to hear
violator; and the petition ex parte. (Section 13, A.M. No. 07-9-12-
6. Relief prayed for (Section 5, A.M. No. 07-9-12- SC).
SC).
6.N.6 Omnibus Waiver Rule
Contents of Return
All defenses shall be raised in the return,
Within five (5) working days after service of the
otherwise, they shall be deemed waived. (Section
writ, the respondent shall file a verified written
10, A.M. No. 07-9-12-SC).
return together with supporting affidavits which
shall, among other things, contain the following:
6.N.7 Procedure for hearing
a. Lawful defenses of the respondent;
b. Steps or actions taken to determine the fate
The hearing on the petition shall be summary.
or whereabouts of the aggrieved party and
The court, justice or judge may call for a
the violator;
preliminary conference to simplify issues and
c. All relevant information in the possession of
determine possibility of obtaining stipulations and
the respondent; and
admissions.
d. If the respondent is a public official or
employee, the return shall further state the
Hearing will be day to day until completed, and
actions that have been or will still be taken:
has the same priority as habeas corpus petitions.
1. to verify the identity of the aggrieved (Section 13, A.M. No. 07-9-12-SC).
party;
2. to recover and preserve evidence related Judgment
to the death or disappearance of the
person identified in the petition; The court shall render the judgment within ten
3. to identify witnesses and obtain statements (10) days from the time the pretition is submitted
from them concerning the death or for decision.
disappearance;
4. to determine the cause, manner, location, Archiving and Revival of Cases
and time of death or disappearance as well
as any pattern or practice that may have If the case cannot proceed for valid cause, the
brought about the death or disappearance; court shall not dismiss the petition but shall
5. to identify and apprehend the person or archive it. If after the lapse of two (2) years from
persons involved in the death or the notice of archiving, the petition shall be
disappearance; and dismissed for failure to prosecute. (Section 13,
6. to bring the suspected offenders before a A.M. No. 07-9-12-SC).
competent court(Section 9, A.M. No. 07-9-
12-SC). 6.N.8 Institution of Separate Action
The return itself is the comment or answer of the
respondent to the petition(Albano, Remidial Law This Rule shall not preclude the institution of
Reviewer, p.1316, 2010 ed.). separate criminal, civil or administrative actions.
(Section 21, A.M. No. 07-9-12-SC).
When to file a return?
Consolidation
Respondent must file a verified written return
within 72 hours after service of writ, together When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be

326 Center for Legal Education and Research

 Purple Notes
Remedial Law
consolidated with the criminal action. by any accredited property or any relevant
person or private object or operation
When a criminal action and a separate civil action institution capable of thereon.
are filed subsequent to a petition for a writ of keeping and securing
their safety. If the NOTE: A motion for
habeas data, the petition shall be consolidated inspection order shall be
petitioner is an
with the criminal action.(Sec. 21, A.M. No. 08-1-16- organization, supported by affidavits or
SC). association, or testimonies of witnesses
institution referred to in having personal
6.N.9 Effect of filing a criminal action Section 3 ©of this Rule, knowledge of the
the protection may be defenses of the
When a criminal action has been commenced, no extended to the officers respondent.
separate petition for the writ shall be filed. The involved.
b. Production Order.
reliefs under the writ shall be available by motion b. Inspection Order.
in the criminal case. The court, justice or
The court, justice or judge, upon verified
The procedure under this Rule shall govern the judge, upon verified motion and after due
disposition of the reliefs available under the writ motion and after due hearing, may order any
hearing, may order any person in possession,
of amparo(Section 22, A.M. No. 07-9-12-SC).
person in possession or custody, or control of
control of a designated any designated
6.N.10 Consolidation land or other propter, documents, papers,
to permit entry for the books, accounts, letters,
When a criminal action is filled subsequently to purpose of inspection, photographs, objects or
the filing of a petition for the writ, the petition for measuring, surveying, tangible things, or
the writ shall be consolidated with the criminal or photographing the objects in digitized or
action. property or any relevant electronic form, which
object or operation constitute or contain
thereon. evidence relevant to the
When a criminal action and a separate civil action
petition or the return, to
are filed subsequent to a petition for the writ of c. Production Order. produce and permit their
Amparo, the petition for the writ shall be inspection, copying or
consolidated with the criminal action. The court, justice or
photographing by or on
judge, upon verified
After consolidation, the procedure under this Rule behalf of the movant.
motion and after due
shall continue to apply to the disposition of the
hearing, may order any
reliefs in the petition(Section 23, A.M. No. 07-9-12- person in possession,
SC). custody, or control of
any designated
6.N.11 Interim reliefs available to documents, papers,
petitioner and respondent books, accounts,
letters, photographs,
Petitioner Respondent objects or tangible
(Section 14, A.M. No. (Section 15, A.M. No. 07- things, or objects in
07-9-12-SC) 9-12-SC) digitized or electronic
a. Temporary a. Inspection Order form, which constitute
Restraining or contain evidence
Order. The court, justice or relevant to the petition
judge, upon verified or the return, to
The court, justice or motion and after due produce and permit
judge, upon motion or hearing, may order any their inspection,
motuproprio, may order person in possession or copying or
that the petitioner or control of a designated photographing by or on
aggrieved and any land or other propter, to behalf of the movant.
member of the permit entry for the
immediate family be purpose of inspection, d. Witness
protected in a measuring, surveying, or Protection Order.
government agency or photographing the
The court, justice or

Bar Operations C ommissions 327

 Purple Notes
Remedial Law
judge, upon motion or
motuproprio, may refer
the witnesses to the
Department of Justice
for admission to the
Witness Protection,
Security and Benefit
Program, pursuant to
Republic Act No. 6981.
6.N.12 Quantum of proof in application for
issuance of writ of Amparo
The parties shall establish their claims by
substantial evidence(Section 17, A.M. No. 07-9-12-
SC).
If the respondent is a public official or
employee:
1. Must prove that extraordinary diligence as
required as required by the applicable laws,
rules and regulations was observed in the
performance of duty.
2. Cannot invoke the presumption that official
duty has been regularly performed to evade
responsibility or liability.
If respondent is a private individual or
entity:
1. Must prove that ordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty. (Section
17, A.M. No. 07-9-12-SC).
6.O WRIT OF HABEAS DATA(A.M. No. 08-1-
16- SC)
6.O.1 Scope of Writ
A remedy available to any person whose right to
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home and
correspondence of the aggrieved party.(Sec. 1,
A.M. No. 08-1-16-SC).
It is an independent and summary remedy
328 Center for Legal Education and Research
designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce
one‘s right to the truth and to informational
privacy. It seeks to protect a person‘s right to
control information regarding oneself, particularly
in instances in which such information is being
collected through unlawful means in order to
achieve unlawful ends. There must be a nexus
between the right to privacy, as well as the
violation or threatened violation of the rights to
life, liberty, and security, for the writ to issue.
(Gamboa v. Chan, G.R. No. 193636, July 4, 2012).
6.O.2 Availability of Writ
The writ of habeas data can be availed of as an
independent remedy to enforce one‗s right to
privacy, more specifically the right to
informational privacy. The court still found that
the remedy is wrong in this case. The Supreme
Court found that there was no reasonable
expectation of privacy in cases of Facebook
photos being posted specially if there is no
evidence to prove that there are only a handful of
people who may view the same. Since there is no
informational privacy that may be expected on
social media, the Court found the petition to be
without merit (Vivares v. St. Theresa‗s College, GR
No. 202666, September 29,2014).
6.O.3. Who may file
a) By any aggrieved party; or
b) by the following, in cases of extralegal killings
and enforced disappearances:
1. Any member of the immediate family:
spouse, children and parents of the
aggrieved party;
2. Any ascendant, descendant or collateral
relative of aggrieved party within the
4th civil degree of consanguinity or affinity,
in default of those mentioned in the
preceding paragraph.
(Sec. 2, A.M. No. 08-1-16-SC).
Where to file the petition
a.) RTC, at the option of the petitioner
(a)Where petitioner resides;or
(b)Where respondent resides;or
 Purple Notes
(c)Which has jurisdiction over the place where
the data or information is gathered,
collected or stored.
b.) SC, CA, SB (when action concerns public data
files of government offices). (Sec. 3, A.M. No.
08-1-16-SC).
Writ is enforceable anywhere in the Philippines.
(Sec. 4, A.M. No. 08-1-16-SC).
6.O.4 Contents of the petition
A verified written petition for a writ of habeas
data should contain:
a. Personal circumstances of petitioner and
respondent;
b. The manner the right to privacy is violated or
threatened and how it affects the right to life,
liberty or security of aggrieved party;
c. Actions and recourses taken by petitioner to
secure the data or information;
d. Location of files, registers or databases,
government office, and the person in charge,
in possession or in control of the data or
information, if known;
e. Reliefs prayed for, which may include the
updating, rectification, suppression or
destruction of the database or information or
files kept by respondent;
f. In case of threats, relief may include a prayer
for an order enjoining the act complained of;
and
g. Such other reliefs as are just and equitable.
(Sec. 6, A.M. No. 08-1-16-SC).
Note: A Habeas Data Petition is dismissible if it
fails to adequately show that there exists a nexus
between the right to privacy on the one hand,
and the right to life, liberty or security on the
other. Moreover, it is equally dismissible if it is
not supported by substantial evidence showing
an actual or threatened violation of the right to
privacy in life, liberty or security of the victim.
(Margate Lee v. Ilagan, GR No. 203254, October 8,
2014).
Remedial Law
6.O.5 Contents of return
a. Lawful defenses such as national security,
state secrets, privileged communications,
confidentiality of source of information;
b. If respondent is in charge, in possession or in
control of the data or information subject of
the petition:
1. Disclosure of data/info about petitioner,
nature of data/info, purpose of collection;
2. Steps or actions taken by respondent to
ensure security and confidentiality of data
or information;
3. Currency and accuracy of data or
information;
c. Other allegations relevant to resolution of the
proceedings.
d. A general denial of the allegations in the
petition is not allowed.(Sec. 10, A.M. No. 08-1-
16-SC).
When to file the return
Respondent must file a verified written return
within five (5) work days from service of the writ,
together with supporting affidavits. The 5-day
period may be reasonably extended by the Court
for justifiable reasons. (Sec. 10, A.M. No. 08-1-16-
SC).
6.O.6 Instances when petition be heard in
chambers
1. When respondent invokes the defense that
the release of the data or information in
question shall compromise national security or
state secrets,;
2. or when the data or information cannot be
divulged to the public due to its nature or
privileged character. (Sec. 12, A.M. No. 08-1-16-
SC).
6.O.7 Consolidation
When a criminal action is filed subsequent
to the filing of a petition for the writ, the
latter shall be consolidated with the
criminal action.
Bar Operations C ommissions 329
 Purple Notes
Remedial Law
When a criminal action and a separate civil
action are filed subsequent to a petition for
a writ of habeas data, the petition shall be
consolidated with the criminal action. (Sec.
21, A.M. No. 08-1-16-SC)

6.O.8 Effects of filing of a criminal action

When a criminal action has been commenced, no

separate petition for the writ shall be filed. The
relief under the writ shall be available to an
aggrieved party by motion in the criminal case.

The procedure under this Rule shall govern the

disposition of the reliefs available under the writ
of habeas data. (Sec. 22, A.M. No. 08-1-16-SC).

6.O.9 Institution of separate action

The filing of a petition for the writ of habeas data

shall not preclude the filing of separate criminal,
civil or administrative actions. (Sec. 20, A.M. No.
08-1-16-SC).

The reason for the rule is that, the writ partakes

of the nature of a prerogative writ. It is not a
criminal, civil or administrative suit. It does not
suspend the filing of a criminal, civil or
administrative action.

6.O.10 Quantum of proof in application for

issuance of writ of habeas data

The allegations in the petition must be proven by

Substantial Evidence. (Sec. 16, A.M. No. 08-1-16-
SC).

330 Center for Legal Education and Research


6.P. CHANGE OF NAME (Rule 103)
6.P.1 Differences under Rule 103, R.A. 9048 and Rule 108
RULE 103
Rule or Change of Name
Law
Subject Change of full name or
Matter family name (substantial
corrections)
Who may A person desiring to change
File his name. (Section 1)
Venue RTC of the province in
which petitioner resided for
3 years prior to filing.
Contents (a) That petitioner has been
of a bona fide resident of
Petition the province where the
petition is filed for at
least three (3) years
prior to the date of
such filing;
(b) The cause for which the
change of petitioner's
name is sought;
(c) The name asked for.
(Section 2)
Purple Notes
Remedial Law
RULE 108 R.A. No. 9048, as amended
by R.A. No. 10172
Cancellation/ Correction Clerical Error Act
of Entries in the Civil
Registry
Cancellation or correction Change of:
of civil registry entries  first name or nickname
(substantial corrections)  the day and month in the
date of birth or
 sex of a person(only
typographical or clerical
errors)
Any person interested in Any person having direct and
any act, event, order or personal interest in the correction
decree concerning the of a clerical or typographical
civil status of persons error. (Section 3)
which has been recorded
in the civil register.
(Section 1)
RTC of city or province 1. Local civil registry office of
where the corresponding the city or municipality
civil registry is located. where the record being
sought to be corrected or
changed is kept;
2. Local civil registrar of the
place where the interested
party is presently residing or
domiciled;
3. Philippine Consulate.
-- a.) Facts necessary to establish
the merits of petition;
b.) Particular erroneous entry or
entries, which are sought to
be corrected and/or the
change sought to be made.
Petition shall be supported by the
following documents:
a.) 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;
b.) At least two (2) public or
private documents showing
the correct entry or entries
Bar Operations C ommissions 331
 Purple Notes
Remedial Law
upon which the correction or
change shall be based; and
c.) Other documents which
petitioner or the city or
municipal civil registrar or
the consul general may
consider relevant and
necessary for the approval of
petition.
d.) For petitions for correction of
date of birth: it shall be
accompanied by earliest
school record or earliest
school documents such as,
but not limited to, medical
records, baptismal certificate
and other documents issued
by religious authorities;
e.) For petitions for correction of
entries involving change of
gender: it shallaccompanied
by a certification issued by
an accredited government
physician attesting to the
fact that the petitioner has
not undergone sex change
or sex transplant(Sec. 5, as
amended).
Grounds 1. Name is ridiculous, Upon good and valid 1. Petitioner finds the first name
tainted with dishonor grounds. or nickname to be ridiculous,
and extremely difficult tainted with dishonor or
to write or pronounce; extremely difficult to write or
2. Consequence of change pronounce;
of status; 2. The new first name or
3. Necessity to avoid nickname has been habitually
confusion; and continuously used by
4. Having continuously petitioner and he has been
used and been known publicly known by that first
since childhood by a name or nickname in the
Filipino name, unaware community; or
of her alien parentage; 3. The change will avoid
5. A sincere desire to confusion. (Section 4)
adopt a Filipino name to
erase signs of former
alienage all in good faith
and without prejudicing
anybody.
Kind of Judicial Proceeding Judicial Proceeding Administrative Proceeding
Proceedin
g Adversarial in nature
because it involves
substantial changes and
affects the status of an

332 Center for Legal Education and Research

 Purple Notes
Remedial Law
individual.

What to File a signed and verified File a verified petition for File an affidavit.
File petition. the cancellation or
correction of any entry.
Notice At least once a week for At least once a week for At least once a week for two
and three consecutive weeks in three consecutive weeks consecutive weeks (publish the
Publicatio a newspaper of general in a newspaper of general whole affidavit) – in change of
n circulation (notice of circulation (notice of first name or nickname
hearing) hearing)
The petition for change of first
name or nickname, or for
correction of erroneous entry
concerning the day and month in
the date of birth or the sex of a
person, as the case may be, shall
be published at least once a week
for two (2) consecutive weeks in
a newspaper of general
circulation (R.A. No. 9048, as
amended by R.A. No. 10172, Sec. 5).
Posting No posting No posting Duty of the civil registrar or
Consul to post petition in a
conspicuous place for 10
consecutive days.
Who The Solicitor General or the The Civil Registrar. The Civil Registrar or Consul.
Participate proper provincial or city
s on the fiscal shall appear on behalf
part of the
of the Government of the
Governme
Republic.
nt
Where to Appeal decision to the Court Appeal decision to the Appeal decision to the Civil
Appeal of Appeals. Court of Appeals. Registrar General (Head of
Philippine Statistics Authority).

6.P.2 Grounds for change of name

1. The name is ridiculous, dishonorable, or is
extremely difficult to write or pronounce.
2. The change results as a legal consequence, as
in legitimation.
3. The change is necessary to avoid confusion
(not confusion caused by petitioner's own use
of unauthorized alias).
4. Having continuously used and been known
since childhood by a Filipino name, unaware of
his alien parentage;
5. Sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith,
without prejudice to public interest and not for
a fraudulent purpose(Republic v. Hernandez, G.R.
No. 117209, 9 February 1996).
Insufficient Grounds for The Change of
Name:
a) Separation of spouses;
b) No proof of prejudice by use of official
name(Republic vs. Hernandez, G.R. No. 117209,
February 9, 1996);
c) Mere use and known by different name
(Republic vs. Gallo,G.R. No. 207074, January
17, 2018);
d) No proof that the true name evokes derisive
laughter.(Giao vs. Republic, G.R. No. L-18669.
November 29, 1965)
A change of name is not a matter of right but of
judicial discretion, to be exercised in the light of

Bar Operations C ommissions 333

 Purple Notes
Remedial Law
the reasons adduced and the consequences that
will follow. The Supreme Court considers the
compassionate calls for recognition of the various
degrees of intersex as variations which should
not be subject to outright denial. "It has been
suggested that there is some middle ground
between the sexes, a `no-man's land' for those
individuals who are neither truly `male' nor truly
`female'." The current state of Philippine statutes
apparently compels that a person be classified
either as a male or as a female, but this Court is
not controlled by mere appearances when nature
itself fundamentally negates such rigid
classification (Republic vs. Cagandahan G.R. No.
166676, September 12, 2008).
6.Q. ABSENTEES
6.Q.1 Purpose of the Rule
For the administration of the properties of an
absentee. (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, pp.541-559,
2015).
General Rule: No independent action for
declaration of presumption of death (In Re:
Petition for the Presumption of Death of Nicolai V.
Szatraw, G.R. No. L-1780, 1948).
Under prevailing case law, courts are without any
authority to take cognizance of a petition that-like
the one filed by the petitioner in the case at
bench-only seeks to have a person declared
presumptively dead under the Civil Code. Such a
petition is not authorized by law (Tadeo-Matia vs
Republic, GR No. 230751, April 25, 2018).
Exception: For purpose of contracting a second
marriage (Art. 41, Family Code).
6.O.2 Who may file; When to file
Who may file a petition for the
appointment of an absentee’s
representative?
1. Any interested party;
2. Absentee‘s relative; or
3. Absentee‘s friend(Sec. 1, Rule 107).
Who may file a petition for declaration of
absence?
1. Spouse present;
2. Heirs instituted in a will, who may present an
authentic copy of the same;
3. Relative who would succeed by the law of
intestacy; and
4. Those who have over the property of the
absentee some right subordinated to the
condition of his death.(Sec.2, Rule 107).
When to file the petition?
1. After the lapse of two years from:
a. the absentee‘s disappearance and without
any news about the absentee, or
b. since the receipt of the last news about
him.
2. After five years in case the absentee has left a
person in charge of the administration of his
property(Sec.2, Rule 107).
3. Who may be appointed?
(1.) Spouse present shall be preferred when
there is no legal separation
(2.) Any competent person – if absentee left
no spouse, or spouse is incompetent. (Sec.
7, Rule 107).
Effects of Reappearance

If the absentee appears, or without appearing his
existence is proved, he shall recover his property
in the condition in which it may be found, and
the price of any property that may have been
alienated or the property acquired therewith; but
he cannot claim either fruits or rents. (Art. 392,
New Civil Code).
The subsequent marriage referred to in the
preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there
is a judgment annulling the previous marriage or
declaring it void ab initio. (Art. 42, Family Code).
6.R. CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY (Rule 108)
Proceedings for cancellation or correction of
entries in the Civil Registry may be:

334 Center for Legal Education and Research

 Purple Notes
a) Summary – when the correction sought to
be made is a mere clerical error (now
governed by RA 9048)
b) Adversarial – where the rectification affects
civil status, citizenship or nationality of a
party or any other substantial change.
Note: This Rule is modified accordingly by R.A.
No. 9048 (Clerical Error Law) and its
Implementing Rules, allowing corrections in the
civil register without the need of judicial order.
R.A. No. 9048 removed from the ambit of Rule
108 the correction of clerical or typographical
errors. However, R.A. No. 9048 applies only to
substantial changes and corrections of entries in
the civil register. Thus, it is opined that it is more
precise to say that Rule 108 is still available for
correction of clerical or typographical errors,
albeit as secondary recourse (Republic vs.
Cagandahan, G.R. No 166676, September 12, 2008).
6.R.1 Entries Subject to Correction and
Cancellation (Substantial changes in the
Civil Registry)
a) Births
b) Marriages
c) Deaths
d) Legal separations
e) Judgments of annulments of marriage
f) Judgments declaring marriages void from
the beginning.
g) Legitimations
h) Adoptions
i) Acknowledgments of natural children
j) Naturalization
k) Election, loss or recovery of citizenship
l) Civil interdiction
m) Judicial determination of filiation
n) Voluntary emancipation of minor; and
o) Change of name.
General rule: No entry in a civil register shall be
changed or corrected without a judicial order.
Exception: Judicial order is not necessary for
clerical or typographical errors or mistakes
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry
in the civil register.
Remedial Law
The errors must be:
 Harmless and innocuous (inoffensive), such as
the following: misspelled name, misspelled
place of birth or the like, mistake in the entry
of day and month in the date of birth, sex of
the person or the like where it is patently clear
that there was a clerical or typographical error
or mistake in the entry
Note: In case of year, judicial order is
necessary.
 Visible to the eyes or obvious to the
understanding.
 Can be corrected or changed only by
reference to other existing record or records.
Change of First Name or Nickname
First name - a name or nickname given to a
person which may consist of one or more names
in addition to the middle and last names
Grounds for Change
a) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
b) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that by that first name or nickname in the
community; or,
c) The change will avoid confusion.
Parties to be impleaded
1. The Civil Registrar concerned; and,
2. All persons who have or claim any interest
which would be affected thereby.
Note: Failure to implead the civil registrar and
the parties who would naturally and legally be
affected by that grant of the petition would
render the proceedings and the judgment void.
Non-impleading, however, as a respondent of
one who is inadvertently left out or is not
established to be known by the petitioner to be
affected by the grant of the petition would not
nullify the proceedings and judgment as they are
Bar Operations C ommissions 335
 Purple Notes
Remedial Law
deemed notified through publication (Republic vs.
Coseteng-Magpayo, G.R. No. 189476, February 2,
2011).
Notice of the time and place for the hearing shall
be given to all persons named in the petition.
Publication is for three (3) consecutive weeks in a
newspaper of general circulation.
A reading of Sections 3 and 4 of Rule 108 readily
shows that the rule mandates two sets of notices
to different potential oppositors. The first notice
is that given to the persons ―named in the
petition‖ made by impleading them and giving
them personal notice. The second (which is
through publication) is that given to the other
persons not named in the petition but
nonetheless may be considered interested or
affected parties, such as creditors (Republic vs.
Coseteng-Magpayo, G.R. No. 189476, February 2,
2011).
When opposition to the petition is filed:
 15 days counted from the notice of the
petition; or,
 15 days counted from the last publication of
the notice.
Petition for change of name and petition for
cancellation or correction of entries are distinct
proceedings. Hence, a party cannot change name
and correct an entry in a single petition without
satisfying the jurisdictional requirement.
A petition for correction is an action in rem. It is
the publication of such notice that brings in the
whole world as party in the case and vests the
court with jurisdiction to hear and decide (Barco
vs. CA, G.R. No. 120587, January 20, 2004,420 SCRA
162).
If the correction sought to be made in the civil
register is clerical, then the procedure to be
adopted is summary. If the rectification affects
the civil status, citizenship or nationality of a
party, it is deemed substantial, and the
procedure to be adopted is adversary (Republic vs.
Valencia, G.R. No.L-32181 March 5, 1986).
An appropriate adversary suit or proceeding is
one where the trial court has conducted
336 Center for Legal Education and Research
proceedings where all relevant facts have been
fully and properly developed, where opposing
counsel have been given opportunity to demolish
the opposite party‘s case, and where the
evidence has been thoroughly weighed and
considered (Eleosida vs. Local Civil Registrar of
Quezon City, G.R. No. 130277, May 9, 2002).
R.A. No. 9048 does not sanction a change of first
name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner‘s
first name for his declared purpose may only
create grave complications in the civil registry
and the public interest (Silverio vs. Republic, G.R.
No. 174689, October 22, 2007).
CLERICAL ERROR LAW(R.A. No. 9048)
A surname cannot be the subject of a petition for
change of name under this procedure.
Correction of clerical or typographical error shall
be availed only once with respect to particular
entry or entries in the same civil registry of
record.
This procedure is summary and administrative.
6S APPEALS IN SPECIAL PROCEEDINGS
6.S.1 JUDGMENTS AND ORDERS
FORWHICH APPEAL MAY BE TAKEN
a. If it allows or disallows a will;
b. If it wholly determines who are the lawful
heirs or distributive shares;
c. If it wholly or partially allows or disallowsa
claim against a decedent‘s estate, or anyclaim
presented on the decedent‘s estate,or any
claim presented on the estate‘sbehalf in offset
to claim against it;
d. If it settles the account of an
executor/administrator/trustee/guardian;
e. If it constitutes a final determination in the
lower court of the rights of the party
appealing in proceedings relating to estate
settlement or administration of a
trustee/guardian.
Exception: Appointment of a
specialadministrator is not appealable.
 Purple Notes
Remedial Law
Remedy: Petition for certiorari underRule 65, Writ of Amparo Five (5) working days
if there is grave abuse ofdiscretion. from notice of
judgment.
f. If it is the final order/judgment renderedin the Writ of Habeas Data Five (5) working days
case, and affects the substantialrights of the from notice of
person appealing. judgment.
Writ of Kalikasan Fifteen (15) days from
Exception: Orders granting/denying
notice of judgment or
aMFR/MNT (Sec. 1, Rule 109)
denial of motion for
reconsideration.
While some of the items in Sec. 1, Rule 109may
be considered as interlocutory underordinary (De Leon and Wilwayco, Special Proceedings Essentials
for Bench and Bar, p.561, 2019)
special actions, the nature of specialproceedings
declares them as appealable asexceptions to Sec.
1, Rule 41. 6.S.3 Modes of appeal (De Leon and Wilwayco,
Special Proceedings Essentials for Bench and Bar, Page
Rationale: To enable the rest of the case 561-563, 2019)
toproceed in the event that a separate
anddistinct issue is resolved by the court andheld Rule 40 (Appeal From Municipal Trial Courts to
to be final.(Marinduque Mining andIndustrial the Regional Trial Courts), 41(Appeal From The
Corporation v. CA, G.R. No. 161219, Oct. 6, 2008) Regional Trial Courts), 42 (Petition for Review
From the Regional Trial Courts to the Court of
6.S.2 When to Appeal Appeals) and 45 (Appeal by Certiorari to the
Supreme Court) of the Revised Rules of Court
In certain special proceedings, appeal may be apply in conformity with Rule 72, Sec. 2 on the
taken from one aspect of the case while the court applicability of rules of civil actions.
proceeds to hear another aspect of the same.
E.g. An appeal may be taken from an order If it is an ordinary appeal under Rule 40 or 41
admitting the probate of a will, while the court and the special proceedings are subject to
proceeds to resolve its intrinsic validity. (De Leon multiple appeals, like settlement of estate, then
and Wilwayco, Special Proceedings Essentials for appeal period is 30 days, a notice of appeal and
Bench and Bar, Page 561, 2019). record on appeal being required.

Periods to appeal  Q: Is multiple appeals allowed in

special proceedings?
Proceeding Deadline to file an
appeal A: Yes. It is permitted as it is a practical
Special proceedings  Fifteen (15) days recognition of the possibility that material
from notice of the issues may be finally determined at various
order or judgment stages of the special proceedings.
appealed from
 Thirty (30) days In this multiple-appeal mode, the probate court
from notice of the loses jurisdiction only over the subject matter of
order or judgment the appeal but retains jurisdiction over the special
appealed from if proceedings from which the appeal was taken for
the case involves purposes of further remedies the parties may
multi-appeals. avail of. (Briones vs. Henson-Cruz, G.R. No. 159130,
Writ of habeas Forty-eight (48) hours August 22, 2008).
corpus from the service of
judgment. A record on appeal – in addition to the notice of
appeal – is required to be filed as the original

Bar Operations C ommissions 337

 Purple Notes
Remedial Law
records of the case should remain with the trial
court to enable the rest of the case to proceed in
the event that a separate and distinct issue is
resolved by said court and held to be final.
Sec. 1 of Rule 109 underscores the multi-part
nature of special proceedings by enumerating the
particular judgments and final orders already
subject of appeal by any interested party despite
other part of the proceedings being still untried
or unresolved. In order to elevate a part of the
records sufficient for appellate review, with the
RTC being deprived of the original records, the
remedy was to file a record on appeal to be
approved by the RTC. (Lebin vs. Mirasol, G.R. No.
164255, Sept. 7, 2011).
338 Center for Legal Education and Research
6.S.4 Rule on advance distribution
Distribution of the estate prior to the payment of
its obligations provided that ―the distributes, or
any of them, gives a bond, in sum to be fixed by
the court, conditioned for the payment of said
obligations within such time as the court directs‖.
(Sec.2, Rule 109).
Although it is within the discretion of RTC
whether or not to permit the advance distribution
of the estate, its exercise of such discretion
should be qualified by the following:
1. only part of the estate that is not affected by
any pending controversy or appeal may be the
subject of advance distribution; and
2. the distributes must post a bond, fixed by the
court, conditioned for the payment of
outstanding obligations of the estate. (Sec.2,
Rule 109).
 Purple Notes
Remedial Law

ANNEX A - SPECIAL PROCEEDINGS, FLOW CHARTS

1. SETTLEMENT OF ESTATE

Source: De Leon and Wilwayco, Special Proceedings Essentials for Bench and Bar, p.191, 2015 ed.

Bar Operations C ommissions 339

 Purple Notes
Remedial Law
2. EXTRAJUDICIAL SETTLEMENT OF ESTATE

Source: De Leon and Wilwayco, Special Proceedings Essentials for Bench and Bar, p.194, 2015 ed.

340 Center for Legal Education and Research

 Purple Notes
Remedial Law
3. JUDICIAL SETTLEMENT OF ESTATE

Source: De Leon and Wilwayco, Special Proceedings Essentials for Bench and Bar, p.192, 2015 ed.

Bar Operations C ommissions 341

 Purple Notes
Remedial Law
4. CLAIMS AGAINST THE ESTATE

Source: De Leon and Wilwayco, Special Proceedings Essentials for Bench and Bar, p.196, 2015 ed.

342 Center for Legal Education and Research

 Purple Notes
Remedial Law
5. DISTRIBUTION OF RESIDUE OF ESTATE

Source: De Leon and Wilwayco, Special Proceedings Essentials for Bench and Bar, p.197, 2015 ed.

ANNEX B – SPECIAL PROCEEDINGS, COMPARATIVE TABLES

Bar Operations C ommissions 343

 Purple Notes
Remedial Law

1. DISTINCTIONS BETWEEN WRIT OF HABEAS CORPUS, WRIT OF AMPARO AND WRIT OF

HABEAS DATA

Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

Purpose A remedy available to any
person which covers cases of
illegal confinement or
detention by which any person
is deprived of his liberty, or by
which the rightful custody of
any person is withheld from
the person entitled thereto.
A remedy available to any
person whose right to life,
liberty and security is violated
or threatened with violation by
an unlawful act or omission of
a public official or employee, or
of a private individual or entity.
The writ covers extrajudicial
killings and enforced
disappearances or threats
thereof.
A remedy available to any
person whose right to
privacy in life, liberty or
security is violated or
threatened by an unlawful
act or omission of a public
official or employee, or of
a private individual or
entity engaged in the
gathering, collecting or
storing of data or
information regarding the
person, family, home and
correspondence of the
aggrieved party.

Who may file By the party for whose relief it By the aggrieved party or any By any aggrieved party or
is intended, or by some person qualified person or entity in the by the following, in cases
on his behalf. following order: of extralegal killings and
enforced disappearances:
1. Any member of the
immediate family: spouse, 1. Any member of the
children and parents of the immediate family:
aggrieved party; spouse, children and
2. Any ascendant, parents of the
descendant or collateral aggrieved party;
relative of aggrieved party 2. Any ascendant,
within the 4th civil degree descendant or
of consanguinity or collateral relative of
affinity; aggrieved party within
3. Any concerned citizen, the 4th civil degree of
orgnization, association or consanguinity or
institution, if no known affinity.
member of immediate
family.

Where to file RTC, enforceable within its RTC, Sandiganbayan, CA, SC; RTC, SC, CA,
area of jurisdiction. Sandiganbayan;
Writ is enforceable anywhere in
CA or SC, enforceable the Philippines. Writ is also enforceable
anywhere in the Philippines. anywhere in the
Philippines.

Fees -- Petitioner is exempted to pay Indigent petitioner is

docket and other lawful fees. exempted to pay docket
and other lawful fees.

344 Center for Legal Education and Research


When issued When a petition therefor is
presented and it appears that
the writ ought to issue.
Purple Notes
Remedial Law
Immediately if on its face it Immediately if on its face it
ought to be issued; ought to be issued;
Served immediately. Served within 3 days from
issuance;
Summary hearing set not later
than seven (7) days from date Summary hearing set not
of issuance. later than ten (10) working
days from date of
issuance.

Contents of a. That the person in whose a. Personal circumstances of a. Personal

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

Contents of a. Whether the respondent a. Lawful defenses; a. Lawful defenses such

return has or has not the party b. Steps or actions taken to as national security,
in his custody or power, determine whereabouts of state secrets,
or under restraint; aggrieved party; privileged
b. If he has the party in his c. All relevant information communications,
custody or power, or pertaining to threat, act or confidentiality of
under restraint, the omission against aggrieved source of information;
authority and the true and party;

Bar Operations C ommissions 345

 Purple Notes
Remedial Law
whole cause thereof, set b. If respondent is in
forth at large, with a copy d. If respondent is a public charge, in possession
of the writ, order, official or employee, or in control of the
execution, or other further state: data or information
process, if any, upon subject of the petition:
which the party is held; 1. verify the identity of
c. If the party is in his aggrieved; 1. Disclosure of
custody or power or is 2. recover and preserve data/info about
restrained by him, and is evidence related to petitioner, nature
not produced, particularly death or of data/info,
the nature and gravity of disappearance of purpose of
the sickness or infirmity of person identified in collection;
such party by reason of petition; 2. Steps or actions
which he cannot, without 3. identify witnesses and taken by
danger, be brought before their statements; respondent to
the court or judge; 4. determine cause, ensure security
d. If he has had the party in manner, location and and confidentiality
his custody or power, or time of death or of data or
under restraint, and has disappearance as well information;
transferred such custody as pattern or practice; 3. Currency and
or restraint to another, 5. identify and accuracy of data
particularly to whom, at apprehend person/s or information;
what time, for what involved in the
cause, and by what death/disappearance; c. Other allegations
authority such transfer 6. bring suspected relevant to resolution
was made. offenders before a of the proceedings.
competent court. d. A general denial of the
7. A general denial of allegations in the
the allegations in the petition is not allowed.
petition is not
allowed.
Effects of -- The court, justice or judge The court, justice or judge
failure to file shall proceed to hear the shall proceed to hear the
return petition ex parte. petition ex parte,
granting the petitioner
such relief as the petition
may warrant unless the
court in its discretion
requires petitioner to
submit evidence.

Procedure for -- The hearing on the petition The hearing on the petition
hearing shall be summary. However shall be summary.
the court, justice or judge may However the court, justice
call for a preliminary or judge may call for a
conference to simplify the preliminary conference to
issues and determine the simplify the issues and
possibility of obtaining determine the possibility of
stipulations and admissions obtaining stipulations and
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.

346 Center for Legal Education and Research

 Purple Notes
Remedial Law
Interim reliefs -- Temporary Protection Order – --
available protected in a government
before final agency of by an accredited
judgment person or private institution
capable of keeping and
securing their safety;

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;

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.

Effect of filing -- A criminal action first filed A criminal action first filed
criminal excludes the filing of the writ; excludes the filing of the
action relief shall be by motion in the writ; relief shall be by
criminal case. A criminal case motion in the criminal
filed subsequently shall be case; A criminal case filed
consolidated with the petition subsequently shall be
for the writ of amparo. consolidated with the
petition for the writ of
habeas data.

Appeal � To the SC under Rule 45, To the SC under Rule 45, To the SC under Rule 45,
within 48 hours from within5 days from notice of within 5 days from notice
notice of judgment (Tan adverse judgment, to be given of judgment or final order,
Chin Hui vs. Rodriguez, the same priority as habeas to be given the same
G.R. No. 137571, Sept. corpus cases. priority as habeas corpus
21, 2000). and amparo cases.
A writ of habeas corpus
does not lie where
petitioner has the remedy
of appeal or certiorari
because it will not be
permitted to perform the
functions of a writ of error
or appeal for the purpose
of reviewing mere errors
or irregularities in the
proceedings of a court
having jurisdiction over
the person and the subject
matter (Galvez vs. CA,
G.R. No. 114046, Oct. 24,
1994).

Bar Operations C ommissions 347

 Purple Notes
Remedial Law
Quantum of -- By substantial evidence. Private --
proof respondent to prove ordinary
diligence was observed in the
performance of duty.

Public official/employee
respondent to prove
extraordinary diligence was
observed, and cannot invoke
the presumption that official
duty has been regularly
performed to evade
responsibility or liability.

2. RULE 103 VS. RULE 108

CANCELLATION OR CORRECTION OF
CHANGE OF NAME
ENTRIES
Involves substantial changes. Involves clerical or typographical errors such as
those which are visible to eye or obvious to the
understanding and involves a harmless or
innocuous change.
An appropriate adversary proceeding. An appropriate summary proceeding.
Requires judicial order. Directed or changed by the city or municipal civil
registrar or consul general without a judicial
order.

3. PETITION FOR CHANGE OF NAME VS. PETITION FOR THE CORRECTION OR CANCELLATION
OF ENTRIES

PETITION FOR PETITION FOR THE CORRECTION OR

CHANGE OF NAME CANCELLATION OF ENTRIES
Petition should be filed in the RTC where the Verified petition filed in the RTC where the
petitioner resides. corresponding Civil Registry is located.
Civil Registrar is not a party. Civil Registrar is an indispensable party. If not
made a party, proceedings are null and void.

Reason: He is an interested party in protecting

the integrity of the public documents.
Petition is filed by the person desiring to change his Filed by any person interested in any ACT,
name. EVENT, ORDER or DECREE.
Change of name only. All cancellation or correction of entries.

Involves substantial changes. Generally involves clerical or typographical errors

An appropriate adversary proceeding.
Entry is correct but petitioner desires to change the
entry.
Requires judicial order.
such as those which are visible to eye or obvious
to the understanding and involves a harmless or
innocuous change.
Generally an appropriate summary proceeding.
All cancellation or correction of entries.
Generally directed or changed by the city or
municipal civil registrar or consul general without
a judicial order.

348 Center for Legal Education and Research

 Purple Notes
7. CRIMINAL PROCEDURE
It is the method fixed by law or the Rules of
Court for the apprehension and prosecution of
persons accused of any criminal offense and for
their punishment in case of conviction.
While criminal law declares what conduct is
criminal, defines crimes and prescribes
punishment for such crimes, criminal procedure
lays down the process by which an offender is
made to answer for crime he committed. (Riano,
Criminal Procedure, p.22, 2016 ed.)
The system of procedure in our jurisdiction is
accusatorial or adversarial, NOT inquisitorial. It
contemplates two contending parties before the
court which hears them impartially and renders
judgment only after trial. (Riano, Criminal
Procedure, pp. 22-23, 2016 ed.)
In our judicial set-up, a judge is not permitted
to act as an inquisitor who pursues his own
investigation and arrives at his own conclusion
ex parte(Queto vs. Catolico, G.R. Nos. L-25204 & L-
25219, January 23, 1970).
Construction
The rules on criminal procedure, being parts of
the Rules of Court, shall be ―liberally construed
in order to promote their objective of securing a
just, speedy and inexpensive disposition of
every action and proceeding.‖ (Riano, Criminal
Procedure, p. 23, 2016 ed.)
The Supreme Court, in granting the petitioner‘s
prayer, held that since the appeal involved a
criminal case and the possibility of a person
being deprived of liberty due to a procedural
lapse is great, a relaxation of the rule was
warranted (Cariaga vs. People, G.R. No. 180010,
July 30, 2010).
7.A. GENERAL MATTERS
CRIMINAL JURISDICTION; CONCEPTS
AND REQUISITES FOR EXERCISE
Remedial Law
Criminal Jurisdiction
It is the power of the State to try and punish a
person for violation of its penal laws.
It is the authority to hear and try a particular
offense and impose the punishment for it. (People vs.
Mariano, G.R. No. L-40527, June 30 1976)
Principles on Jurisdiction in Criminal Cases:
1. Jurisdiction over the subject matter is
conferred by law
2. Jurisdiction over the territory is conferred by
law since venue is jurisdictional
3. Jurisdiction over the person of the accused
is acquired through arrest or voluntary
surrender; (MaximinoValepenas vs. People, G.R.
No. L-20687, April 30, 1996)
4. Jurisdiction of the court is determined by
the law enforced at the time of the
commission of the offense.
Note: The Supreme Court and the Court of Appeals
do not have original jurisdiction in criminal cases.
They have only appellate jurisdiction. The
Sandiganbayan, on the other hand, has both
original
and appellate jurisdiction in criminal cases.
Q: May the court acquire jurisdiction over the
accused in a criminal case through the service of
summons, similar to a civil case?
A: Yes. Under Sec. 8 (b) of Rule 112, in cases not
requiring a preliminary investigation nor covered by
the Rule on Summary Procedure, if the
MTC/MeTC/MCTC judge finds probable cause, he
shall issue a warrant of arrest; or, a commitment
order if the accused had already been arrested, and
hold the latter for trial. However, under Section 9
(b) of Rule 112, if the judge is satisfied that there is
no necessity for placing the accused under custody,
he may issue summons instead of a warrant of
arrest.
General Rule: Jurisdiction in Criminal Cases
is determined
1. By the allegations in the complaint or
information and not by the results of proof or
Bar Operations C ommissions 349
 Purple Notes
Remedial Law
by the trial court‘s appreciation of the Venue is Jurisdictional in Criminal cases
evidence presented.
2. By the law in force at the time of the  Venue is jurisdictional in criminal cases. It
institution of the criminal action. Once vested, determines not only the place where the
it cannot be withdrawn by: criminal action is to be instituted, but also
a. A subsequent valid amendment of the the court which has the jurisdiction to try
information; or, and hear the case. The reason for this rule
b. A subsequent statute amendatory of the is two-fold:
rules of jurisdiction.
First, the jurisdiction of trial courts is
Exceptions: limited to well-defined territories such that
a trial court can only hear and try cases
1. Expressly provided; involving crimes committed within its
2. Is construed to effect that is intended to territorial jurisdiction.
operate to actions pending before its
enactment (Palana vs. People, G.R. No. 149995 Second, laying the venue in the locus
dated September 28, 2007). criminis is grounded on the necessity and
justice of having an accused on trial in the
7.A.1 Distinguish Jurisdiction over municipality of province where witnesses
theSubject Matter from jurisdiction over and other facilities for his defense are
the Person of the Accused. available. Unlike in civil cases, a finding of
improper venue in criminal cases carries
Jurisdiction over Jurisdiction over the jurisdictional consequences. In determining
the subject matter person of the accused the venue where the criminal action is to be
Determined by the Acquired upon his 1. instituted and the court which has
allegations in the Arrest or apprehension,
jurisdiction over it, Section 15(a), Rule 110
complaint or with or without a warrant,
or of the 2000 Revised Rules of Criminal
information Procedure provides that subject to existing
2. Voluntary appearance
or submission to the laws, the criminal action shall be instituted
jurisdiction of the court and tried in the court of the municipality or
territory where the offense was committed
Court has jurisdiction Court has authority/ or where any of its essential ingredients
over the offense jurisdiction over the occurred (Union Bank vs. People, G.R. No.
charged. person charged 192565, February 28, 2012).

 It is evident that the crime of Carnapping,

7.A.2 Requisites for a Valid Exercise
ofCriminal Jurisdiction: (AW-Bro)
 The court acquires jurisdiction in a criminal
case only when the following requisites
concur: (a) offense is one which the court
is, by law, authorized to take cognizance
of; (b) offense must have been committed
within its territorial jurisdiction; and, (c)
person charged with the offense must have
been brought into its forum for trial forcibly
by warrant of arrest or upon his voluntary
submission to the court (Arula vs. Espino,
G.R. No. L-28949, June 23, 1969).
including all the elements thereof - namely,
that: (a) there is an actual taking of the
vehicle; (b) the vehicle belongs to a person
other than the offender himself; (c) the
taking is without the consent of the owner
thereof, or that the taking was committed
by means of violence against or
intimidation of persons, or by using force
upon things; and (d) the offender intends
to gain from the taking of the vehicle - did
not occur in Valenzuela City, but in Marilao,
Bulacan. While the Court notes that
Casanas was indeed arrested in Valenzuela
City while in the possession of the subject
motorcycle, the same is of no moment, not

350 Center for Legal Education and Research

 Purple Notes
only because such is not an element of the
crime, but more importantly, at that point
in time, the crime had long been
consummated. Case law provides that
'"unlawful taking' or apoderamiento is the
taking of the motor vehicle without the
consent of the owner, or by means of
violence against or intimidation of persons,
or by using force upon things. It is deemed
complete from the moment the offender
gains possession of the thing, even if he
has no opportunity to dispose of the same.
Dismissal of this case, however, shall not
preclude the re-filing of the same criminal
case against Casanas before the proper
tribunal which has territorial jurisdiction
over the same, i.e., the courts in Marilao,
Bulacan (Casanas vs. People, G.R. No. 223833,
December 11, 2017).
Note: The question of jurisdiction may be
raised at any stage of the proceedings. Hence,
the question of jurisdiction may be cognizable
even if raised for the first time on appeal
(Atienza vs.People, G.R. No. 188694, February 12,
2014).
Doctrine of Estoppel, exception to the rule
on Jurisdiction
 The exception to this rule is when a party is
estopped from questioning the jurisdiction
of the court for reasons of public policy as
he initially invokes the jurisdiction of the
court and then later on repudiates that
same jurisdiction (Tijam vs. Sibonghanoy, G.R.
No. L-21450, April 15, 1968).
 The Court emphasized that the doctrine of
estoppel laid down in Tijam is an
EXCEPTION and not the general rule. The
rule still stands that jurisdiction is vested by
law and cannot be conferred or waived by
the parties (Pangilinan vs. Court of Appeals,
G.R. No. 117363, December 17,1999).
 However, estoppel ought to be applied with
caution. For estoppel to apply, the action
giving rise thereto must be unequivocal and
intentional because, if misapplied, estoppel
Remedial Law
may become a tool of injustice (Duero vs.
Court of Appeals, G.R. No. 131282, January 4,
2002).
Estoppel, being in the nature of a
forfeiture, is not favored by law. It is to be
applied rarely—only from necessity, and
only in extraordinary circumstances. The
doctrine must be applied with great care
and the equity must be strong in its favor.
When misapplied, the doctrine of estoppel
may be the most effective weapon for the
accomplishment of injustice (Figueroa vs.
People, G.R. No. 147406, July 14, 2008)
Jurisdiction over Complex Crimes
 Jurisdiction over the whole complex crime
is lodged with the trial court having
jurisdiction to impose the maximum and
most serious penalty imposable of an
offense forming part of the complex crime.
It must be prosecuted integrally and must
not be divided into component offenses
which may be made subject of multiple
informations brought in different courts
(Cuyos vs. Garcia G.R. No. L-46934, April 15,
1988).
Jurisdiction over Continuous Crimes
 A criminal action may be filed in different
venues under the rules for
delitoscontinuados or in those instances
where different trial courts have concurrent
original jurisdiction over the same criminal
offense (Malaloan vs. CA, G.R. No. 104879,
May 6, 1994).
 It is said that when several courts have
concurrent jurisdiction, the first court which
acquires jurisdiction retains it to the
exclusion of the others (Nenaria vs. Hon.
Veluz, G.R. No. L-4683, May 29, 1952).
Jurisdiction over Crimes Punishable by
Destierro
Bar Operations C ommissions 351
 Purple Notes
Remedial Law
� Where the imposable penalty is destierro,
the case falls within the exclusive
jurisdiction of the Municipal Trial Court,
considering that in the hierarchy of
penalties under Article 71 of the Revised
Penal Code, destierrofollowsarrestomayor
which involves imprisonment (People
vs.Eduarte, G.R. No. 88232 February 26, 1990).
Jurisdiction over Libel Cases
� Although punishable by prisioncorreccional,
the jurisdiction falls within the RTC (People
vs. MTC of Quezon City, G.R. No. 123263, Dec.
16, 1996).
Jurisdiction over Violations of Dangerous
Drugs Act
� Regardless of its penalty, the jurisdiction
falls within the RTC (People vs. Morales, G.R.
No. 126621, Dec. 12, 1997)
� Violation of the Dangerous Drugs Act is
exclusively within the jurisdiction of the
RTC irrespective of who committed the
offense even if the one charged is a public
officer. (De Lima vs. Guerrero, G.R. No.
229781, Oct. 10, 2017)
Note:Where the offense is within its exclusive
competence by reason of the penalty prescribed
therefore, an inferior court shall have
jurisdiction to try and decide the case
irrespective of the kind and nature of the civil
liability arising from the said offense. (Legados
vs. de Guzman, G.R. No. 35285, Feb. 20, 1989).Also,
the additional penalty for habitual delinquency is
not considered in determining jurisdiction
because such delinquency is not a crime.
 Jurisdiction is determined by the
PRINCIPAL penalty, NOT by the civil
liability, additional penalty or the subsidiary
penalty.
Jurisdiction over Money Laundering
� RTC has jurisdiction to try all cases on
money laundering. However, those
committed by public officers and private
persons, who are in conspiracy with such
352 Center for Legal Education and Research
public officers, shall be under the
jurisdiction of Sandiganbayan.
Jurisdiction over Violations of R.A. No.
3019
� Violations of R.A. No. 3019 committed by
presidents, directors or trustees, or
managers of government-owned or -
controlled corporations, and state
universities shall be within the exclusive
original jurisdiction of the Sandiganbayan.
(Inocentes vs. People, G.R. Nos. 205963-64 July
7, 2016)
Note: Regardless of the penalty imposed, the
following cases are exclusively within the
jurisdiction of the RTC:
1. Violation of the Omnibus Election Code;
2. Violation of the Intellectual Property Code;
3. Written Defamation;
4. Anti-money Laundering Law;
5. Comprehensive Dangerous Drugs Act 0f
2002; and,
6. Cybercrime Prevention Act of 2012
7.A.3 JURISDICTION OF CRIMINAL
COURTS
Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
Except in cases falling within the exclusive
jurisdiction of the RTC and of the
Sandiganbayan:
1. Exclusive original jurisdiction over all
violations of city or municipal ordinances
committed within their respective territorial
jurisdiction [Sec. 32(1), B.P.129 as amended
by R.A. 7691];
2. Exclusive original jurisdiction over all
offenses punishable with imprisonment not
exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable or accessory penalties. [Sec.
32(2), B.P. 129 as amended by R.A. 7691];
3. Exclusive original jurisdiction over offenses
involving damage to property through
 Purple Notes
criminal negligence [Sec. 32(2), B.P. 129 as
amended by R.A.7691];
4. Summary procedure in certain cases; and
5. Special jurisdiction to decide on
applications for bail in the absence of all
RTC judges in a province or city (Sec 35,
B.P. 129 as amended by R.A. 7691).
 The MTCs shall have jurisdiction over the
following cases falling within their
jurisdiction:
a. Violations of traffic laws, rules and
regulations:
b. Violations of the rental law;
c. Violations of B.P. 22 (Anti-Bouncing
Check Law);
d. Violations of municipal and city
ordinances;
e. All other criminal cases where the
penalty prescribed by law for the
offense charged is imprisonment not
exceeding 6 months, or a fine not
exceeding P1, 000.00, or both; and
f. Offenses involving damage to property
through criminal negligence where the
imposable penalty does not exceed P10,
000.00 [Sec 1 (b),The 1991 Rules on
Summary Procedure].
Regional Trial Court (RTC)
1. Exclusive original jurisdiction in all criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, except those
now falling under the exclusive and
concurrent jurisdiction of the
Sandiganbayan (Sec 20, B.P. 129, as amended
by R.A. 7691);
2. Original jurisdiction in the issuance of writs
of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, and injunction,
enforceable in any part of their respective
regions [Sec 21(1), B.P. 129, as amended by
R.A. 7691];
3. Appellate jurisdiction over all cases decided
by the MTC within its territorial jurisdiction
(Sec. 22, B.P. 129, as amended by R.A. 7691);
Remedial Law
4. Special jurisdiction of certain branches to
handle exclusively criminal cases as may be
determined by the Supreme Court (Sec. 23,
B.P. 129, as amended by R.A. 7691); and
5. Jurisdiction over criminal cases under
specific laws such as
a. Criminal and civil aspects of written
defamation (Art. 360, RPC);
b. Designated special courts over cases in
violation of the Comprehensive
Dangerous Drugs Act of 2002 (Sec 90,
R.A. 9165);
c. Violation of intellectual property rights
(A.M. No. 03-03-03-SC); and
d. All cases on money laundering (Sec. 5,
R.A. 9160).
Sandiganbayan (P.D. 1606, as amended by R.A.
7975 and R.A. 8249)
1. Violations of R.A. 3019, R.A. 1379, and
Chapter II, Sec. 2, Title VII, Book II of the
RPC, where one or more of the accused are
officials occupying the following positions in
the government at the time of the
commission of the offense:
a. Officials of the executive branch
occupying the positions of regional
director and higher, otherwise classified
as Grade ―27‖ and higher of R.A. 6758;
i. Provincial governors, vice-
governors, members of the
sanggunianpanlalawigan and
provincial treasurers, assessors,
engineers and other provincial
departmental heads;
ii. City mayors, vice-mayors, members
of the sangguniangpanlungsod, city
treasurer, assessors, engineers and
the city department heads;
iii. Officials of the diplomatic service
occupying the position of consul
and higher;
iv. Philippine army and air force
colonels, naval captain, and all
officers of higher rank;
Bar Operations C ommissions 353
 Purple Notes
Remedial Law
v. Officers of the Philippine National
Police while occupying the position
of provincial director and those
holding the rank of senior
superintendent or higher;
vi. City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special
prosecutor;
vii. Presidents, directors or trustees, or
managers of government-owned
orcontrolled corporations, state
universities or educational
institutions or foundations;
b. Members of Congress and officials
thereof classified as Grade ―27‖ and up
under R.A. 6758:
i. Members of the judiciary without
prejudice to the provisions of the
Constitution;
ii. Chairmen and members of
Constitutional Commissions,
without prejudice to the provisions
of the Constitution; and
iii. All other national and local officials
classified as Grade ―27‖ and higher
under R.A. 6758.
2. Other offenses or felonies whether simple
or complexed with other crimes committed
by the public officials and employees
abovementioned in relation to their office;
3. Civil and criminal cases filed pursuant to
and in connection with E.O. Nos. 1, 2, 14
and 14-A; and
4. Appellate jurisdiction over final judgments,
resolutions or orders of trial courts in cases
where none of the accused is occupying
position corresponding to salary grade ―27‖
or higher (Sec. 4, P.D. 1606 as amended and
as amended further by R.A. 8249).
Q: Hannah, a government scholar and a
member of student regent of UP, was
charged for the crime of estafa and
contends that Sandiganbayan has no
354 Center for Legal Education and Research
jurisdiction over the offense charged. Is
her contention valid?
A: The Court declared in no uncertain terms,
that the Sandiganbayan has jurisdiction over
felonies committed by public officials in relation
to their office. The court further held that
estafais one of those felonies and the
Sandiganbayanhas jurisdiction if (a) the offense
is committed by a public official or an employee
mentioned in Sec. 4, paragraph "a;" and (b) the
offense is committed in relation to his office.
(Serana vs. Sandiganbayan, G.R. 162059, January 22,
2008)
7.A.4. WHEN INJUNCTION MAY BE ISSUED
General Rule:It is a long-standing doctrine
that injunction will not lie to enjoin a criminal
prosecution for the reason that public interest
requires that criminal acts be immediately
investigated and prosecuted for the protection
of society except in specified cases among
which are to prevent the use of the strong arm
of the law in an oppressive and vindictive
manner, and to afford adequate protection to
constitutional rights. (Asutilla vs. PNB, G.R. No. L-
51354, January 15, 1986).
Exceptions:
▪ To afford adequate protection to the
constitutional rights of the accused;
▪ When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of suits;
▪ When there is a prejudicial question which is
subjudice;
▪ When the acts of the officer are without or in
excess of authority;
▪ When the prosecution is under an invalid
law, ordinance or regulation;
▪ When double jeopardy is clearly apparent;
▪ When the court has no jurisdiction over the
offense;
▪ When it is a case of persecution rather than
prosecution;
▪ When the charges are manifestly false and
motivated by lust for vengeance; and,
 Purple Notes
▪ When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied (Brocka vs.
Enrile, G.R. No. 69863-65, December 10, 1990).
Principle of Adherence of Jurisdiction or
Continuing Jurisdiction
Once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all
that it can do in the exercise of that jurisdiction
(20 Am. Jur. 2d, Courts, § 147, 1965).
The jurisdiction once vested, cannot be
withdrawn or defeated by a subsequent valid
amendment of the information (People v.
Chupeco, L-19568, March 31, 1964). It cannot
also be lost by a new law amending the rules of
jurisdiction (Rilloraza v. Arciaga, L-23848,
October 31,1967).
General Rule:Jurisdiction of a court to try
criminal action is to be determined by the law in
force at the time of the institution of the action
(People vs. CA 12th Division, G.R. No. 154557,
February 13, 2008 citing People vs. Velasco, G.R. No.
110592, January 23, 1996).
Exception: Where the statute expressly
provides, or the statute is clearly intended to
operate to actions pending before its enactment,
in which case, the court where the criminal
action is pending is ousted of jurisdiction and
the pending action will have to be transferred to
the other tribunal which will continue the
proceeding (People vs. CA 12th Division, G.R. No.
154557, February 13, 2008 citing People vs. Velasco,
G.R. No. 110592, January 23, 1996).
7.B. PROSECUTION OF OFFENSES(Rule 110)
7.B.1 Criminal Actions, How Instituted
(Sec. 1, Rule 110)
1. By filing a complaint with the proper officer:
Where a Preliminary Investigation is
required pursuant to Sec. 1 of Rule
112(Sec. 1[a], Rule 110)
a) Preliminary Investigation is required to
be conducted before the filing of a
Remedial Law
complaint or information for offenses
where the penalty prescribed by law is
at least 4 years, 2 months and 1 day
without regard to fine. (Sec. 1, Rule 112)
b) In case of summary procedure, it is
discretionary upon the Prosecutor if he
wants to conduct a Preliminary
Investigation.
c) In Metro Manila and other chartered
cities outside Metro Manila, unless
otherwise provided in their charters.(Sec.
1[b], Rule 110)
2. For all other offenses, directly with the
Municipal Trial Court and Municipal Circuit
Trial Courts or with the office of the
prosecutor.
General Rule: There is no direct filing of an
information or complaint with the Regional Trial
Court under Rule 110 because its jurisdiction
covers offenses which require preliminary
investigation.
Exception: In the absence or unavailability of
an inquest prosecutor, complaint may be filed
directly with the proper court on the basis of the
affidavit of the offended party or arresting
officer or person.
Proper Officer(Rule 112, Sec. 2).
Persons authorized to conduct the requisite
preliminary investigation: (ProNO-CoSpOmP)
1) Provincial or city prosecutors and their
assistants
2) National and regional state prosecutors
3) Other officers as may be authorized by law
4) Commissions on Elections through its
authorized legal officers for all election
offenses punishable under the Omnibus
Election Code.
5) Lawyers appointed as special prosecutors
(Sec.1686, RAC)
6) Office of the Ombudsman; or
7) PCGG with the assistance of OSG and other
government agencies
General Rule: Procedural law basically
mandates that "all criminal actions commenced
Bar Operations C ommissions 355
 Purple Notes
Remedial Law
by complaint or by information shall be
prosecuted under the direction and control of a
public prosecutor." In appeals of criminal cases
before the CA and before this Supreme Court,
the OSG is the appellate counsel of the People,
pursuant to Section 35(1), Chapter 12, Title III,
Book IV of the 1987 Administrative Code(Jimenez
vs. Hon. Sorongon, G.R. No. 178607, December 5,
2012).
Exceptions:
1. In all cases elevated:
(i) to the Sandiganbayan; and
(ii) from Sandiganbayan to the SC, the
Office of the Ombudsman, through its
special prosecutor, shall represent the
People of the Philippines, except in
cases filed pursuant to EO Nos. 1, 2, 14
and 14-A, issued in 1986.‖(People vs.
Sandiganbayan (First and Third Divisions),
G.R. No. 188165, G.R. No. 189063,
December 11, 2013);
2. When the State and the offended party are
deprived of due process because the
prosecution is remiss in its duty to protect
the interest of the State and the offended
party; and,
3. When the offended party questions the civil
aspect of the decision of the lower court
(Heirs of Federico Delgado vs. Gonzales, GR No.
184337, August 7, 2009)
The rule is settled that once a criminal complaint
or information is filed in court, any disposition
thereof, such as its dismissal or the conviction or
acquittal of the accused, rests in the sound
discretion of the court. While the prosecutor
retains the discretion and control of the
prosecution of the case, he cannot impose his
opinion on the court. The court is the best and
sole judge on what to do with the case.
Accordingly, a motion to dismiss the case filed
by the prosecutor before or after the
arraignment, or after a reinvestigation, or upon
instructions of the Secretary of Justice who
reviewed the records upon reinvestigation,
should be addressed to the discretion of the
court. The action of the court must not,
356 Center for Legal Education and Research
however, impair the substantial rights of the
accused or the right of the People to due
process of law (Hipos vs. Hon. Bay, G.R. Nos.
174813-15, March 17, 2009 citing People vs. Montesa
Jr., G.R. No. 114302, 29 September 1995).
General Rule:
 The filing of criminal action interrupts the
running of the period of prescription of the
offense charged even if the court where the
complaint or information is filed cannot try
the case on the merits (People vs. Olarte,
G.R. No. L-22465, February 28, 1967).
 The filing of the first indictments suspended
the running of the prescriptive period, and
the prosecutions under the informations to
be filed should be regarded as mere
continuations of the previous proceedings
(Arambulo vs. Laqui,G.R. No. 138596. October
12, 2000).
Exception: If otherwise provided by special
laws.
Complaint(Rule 110, Sec. 3)
It is a sworn written statement charging a
person with an offense and subscribed by:
(OPO)
a) The offended party;
b) Any peace officer (e.g. members of the
Constabulary, Police officers, Agents of
NBI, etc.); or,
c) Other public officer charged with the
enforcement of the law violated (e.g.
Internal Revenue Officer for violation of the
NLRC, custom agents with respect to
violations of the Tariff and Customs Code).
The want of an oath is a mere defect which
does not affect the substantial rights of the
defendant on the merits. It is not permissible to
set aside a judgment for such a defect (US vs.
Bibal, G.R. No. 1760. April 3, 1905).
Information (Rule 110, Sec. 4)
 Purple Notes
Remedial Law
It is an accusation in writing charging a person  While the information is not quashable if
with an offense and subscribed by the not brought in the name of the People of
prosecutor and filed with the court. the Philippines, if the information is grossly
deficient, the same may be quashed for
Note: If the original information was signed and failure to conform to the prescribed form
filed by one who has no authority to sign and (Rule 117, Section 3e.
file the same, the dismissal of the information  Infirmity in the information such as lack of
would not bar subsequent prosecution under a authority of the officer signing it, cannot be
subsequent valid information. Jeopardy does cured by silence, acquiescence, or even by
not attach where an accused pleads guilty to a express consent. (Cudia vs. Court of Appeals,
defective indictment. G.R. No. 110315 January 16, 1998)Such lack
of authority on the part of the officer is a
COMPLAINT INFORMATION ground for the quashal of the information.
Prepared, subscribed, Always signed and filed by (Sec. 3[d], Rule 117).
and filed by the the prosecutor or
offended party, any authorized prosecuting When a Sworn Written Complaint is
peace officer or other officer, never the Required (Hernandez vs. Albano, G.R. No. L-17081,
officer charged with complainant. May 31, 1961)
the enforcement of
the law violated.
a. If the offense is one which cannot be
Needs to be under Need not be under oath.
prosecuted de officio:(CAASA)
oath by the person Reason: Prosecuting
signing it. officer filing it is charged
with the special duty in  Adultery;
regard thereto and is  Concubinage;
acting under the special  Seduction;
responsibility of his oath of  Abduction;
office.  Acts of lasciviousness; (Art. 344, Revised
May be filed either Always filed with the Penal Code)
with the prosecutor‘s court.
office or the court. b. Defamation consisting in the imputation of
any of the above-mentioned crimes (Art.
The Complaint or Information shall be: 360 of the Revised Penal Code, Title XI, Book
(Rule 110, Sec. 2) II);
c. If it is private in nature; or,
1. In writing; d. Where it pertains to those cases which
2. In the name of the People of the need to be endorsed by specific public
Philippines; and, officers.
3. Against all persons who appear to be
responsible for the offense involved. Crimes where Municipal/ Provincial
Prosecutors cannot prosecute
 If the accused is a corporation, no criminal independently.
action can lie against it (Time, Inc. vs. Reyes,
G.R. No. L-28882 May 31, 1971).  Violations of the Anti-Dummy Law: Anti-
 If the corporation violates the law, the Dummy Board (Zobel vs. Concepcion,G.R. No.
officer, through whom the corporation acts, L-17806, June 29, 1962);
answers criminally for his acts (People vs.  Violation of the National Internal Revenue
Campos [CA] 40 O.G. Sup. 12, 7). Code: Internal Revenue Officer;
 A formal accusation of the type required by  Violations of the Tariff and Customs Code
the statute cannot be waived and in its Prosecution of private crimes: Custom
absence, there is nothing for the court to agents;
act upon and the court acquires no  Violations of Art. 360, RPC: Those crimes
jurisdiction. which cannot be prosecuted de officio and

Bar Operations C ommissions 357

 Purple Notes
Remedial Law
requires that the criminal action be brought
at the instance of and upon complaint
expressly filed by the offended party. (Sec.
5, Rule 110)
 Compliance with this is a jurisdictional
requirement and not merely a formality.
(People vs. Sunpongco, G.R. No. L-42665 June
30, 1988).
 In complex crimes, where one of the
component offenses is a private crime and
the other a public offense, the fiscal may
initiate the proceedings de officio. (People
vs. Orcullo, 46 O.G., Supp. 11,238).
Requirements in Special Laws
The prosecution for violation of special laws
shall be governed by the provisions thereof (Sec.
5, Par. 6, Rule 110).
7.B.2 Who may File Crimes that Cannot be
Prosecuted de officio (ProSta-OmAp)
a) Provincial/City Prosecutor;
b) Chief State Prosecutor;
c) Ombudsman or his deputy(Sec. 4, par 3,
Rule 112); or
d) Lawyer appointed by Secretary of Justice
pursuant to Sec. 1696 of the Revised
Administrative Code, as amended.
Crimes that Cannot be Prosecuted de
officio
Private crimes - are those which cannot be
prosecuted except upon complaint filed by the
offended party. This legal requirement was
imposed out of consideration for the aggrieved
party who might prefer to suffer the outrage in
silence rather than go through the scandal of a
public trial. (People vs. Yparraguire, G.R. No.
124391, July 5, 2000)
Note: The proper term is not private crime but
rather a crime that cannot be prosecuted de
officio.
1. Concubinage and Adultery – the criminal
action should be initiated by the offended
spouse, who should have the status,
capacity and legal representation at the time
of the filing of the complaint.
358 Center for Legal Education and Research
The marital relationship must still be subsisting.
When there is already annulment of marriage or
nullity of marriage, the accused can no longer
file the complaint.
It must be instituted against both guilty parties,
unless one of them is no longer alive.
The offended party must not have given his
consent (whether expressed or implied) to the
offense or pardoned the offenders(Art. 344,
Revised Penal Code).
NOTE: Only the offended spouse, nototherwise
incapacitated, can validly extend the pardon or
consent contemplated therein. He/she must
pardon BOTH the erring spouse and mistress or
concubine (People vs. Infante, G.R. No. L-36270,
August 31, 1932).
The acquittal or death of one of the accused in
the crime of adultery does not bar the
prosecution of the other accused.
Death of the offended spouse BEFORE the filing
of the complaint for adultery bars further
prosecution; if the offended spouse died AFTER
the filing of the complaint, his death will NOT
prevent the proceeding from continuing to its
ultimate conclusion.
Reason: His participation is essential for the
initiation of the action, not for the maintenance
thereof (People vs. Diego, G.R. No. 1626, December
15, 1937).
In the case of People vs. Ilarde, G.R. No. L-
58595, October 10, 1983, before a formal
charge could be filed, the offended spouse died.
The fiscal then filed an information for adultery
attaching thereto the complaint for adultery
earlier executed by the deceased offended
spouse. The Court upheld the filing of
information considering that the facts clearly
showed the desire of the offended party to bring
his wife and her alleged paramour to justice.
2. Seduction, Abduction and Act of
Lasciviousness – The criminal action is to
be initiated exclusively and successively by
the following persons in the following order:

a) By the offended woman;
b) By the parents, grandparents or
legal/judicial guardians in that successive
order, if the offended party is
incompetent or incapable of doing so;
c) By the State pursuant to the Doctrine of
Parens Patriae, when the offended party
dies or becomes incapacitated before she
could file the complaint and she has no
known parents, grandparents
guardian.
3. Defamation imputing to a person any
of the following crimes of concubinage,
adultery, seduction, abduction or acts of
lasciviousness can be prosecuted only by
the party or parties defamed.
 Except in cases that cannot be
prosecuted de officio, the Information filed
by the prosecutor with the proper court is
sufficient (Francisco, Jr. vs. People, G.R. No.
177720, February 18, 2009).
Prosecution of the Crimes of Adultery and
Concubinage (Sec. 5, Par. 2, Rule 110) (Com-
Par-Con)
a. Upon a complaint filed by the offended
spouse;
b. The offended party must include, the
guiltyparties, if both are alive;
c. The offended party must not have
consented to the offense or pardoned the
offenders.
Prosecution of the Crimes of Seduction,
Abduction, and Acts of Lasciviousness (Sec.
5, Par. 3, Rule 110)
Upon a complaint filed by the:
1. Offended Party, evenif a minor, unless she
is incompetent or incapable;
2. Parents;
3. Grandparents;
4. Guardian;
5. State, if the offended party dies or
becomes incapacitated before she can file,
the complaint, and she has no known
parents, grandparents or guardian.
Purple Notes
Remedial Law
 The right to prosecute these crimes shall be
exclusive of all other persons and shall be
exercised successively in the order
provided.
 These crimes cannot be prosecuted in any
case, if the offender has been expressly
pardoned by any of them.
Rules on pardon:
or
1.) The offended minor, if with sufficient
discretion, can validly pardon the accused
by herself if she has no parents or where
the accused is her own father and her
mother is dead;
2.) The parents, grandparents or guardian of
the offended minor, in that order, cannot
extend a valid pardon in said crimes without
the conformity of the offended party, even if
the latter is a minor(U.S. v. Luna, G.R. No.
892, September 11, 1902);
3.) If the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
 The pardon refers to that made before
filing of the criminal complaint in court.
Pardon made after filing does not prohibit
continuance of the prosecution of the
offense except in case of marriage between
the offender and offended party(People vs.
Infante, G. R. No. 36270, August 31, 1932).
7.B.3 Criminal Action, When Enjoined
General Rule: Criminal action cannot be
enjoined.
Exceptions:
a) To afford adequate protection to the
constitutional rights of the accused(Santiago
vs. Vasquez, G.R. No. 99289-90, January 13,
1992);
b) When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of
actions(Hernandez vs. Albano, G.R. No. 19272,
January 25, 1967);
Bar Operations C ommissions 359
 Purple Notes
Remedial Law
c) Where there is a prejudicial question which
is sub judice (before a court or judge for
consideration);
d) When the acts of officer are without or in
excess of authority(Planas vs. Gil, G.R. No. L-
46440, January 18,1939);
e) Where the prosecution is under an invalid
law, ordinance, or regulation;
f) When double jeopardy is clearly apparent;
g) Where the court has no jurisdiction over the
offense(Lopez vs. City Judge, G.R. No. L-25795,
October 29, 1996);
h) Where it is a case of persecution rather than
prosecution;
i) Where the charges are manifestly false and
motivated by the lust for vengeance;
j) When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied; or
k) Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners
7.B.4 Control of Prosecution(Rule 110, Sec.
5)
All criminal actions commenced by a complaint
or information shall be prosecuted under the
direction and control of a public prosecutor.
 The rationale for the Rule that all criminal
actions shall be prosecuted under the
direction and control of a PUBLIC
prosecutor is that since a criminal offense is
an outrage against the sovereignty of the
State, it necessarily follows that a
representative of the State shall direct and
control the prosecution thereof (Chua vs.
Padillo, G.R. No. 163797, April 24, 2007).
 The right to prosecute vests the prosecutor
with a wide range of discretion whether
what and whom to charge, the exercise of
which depends on factors which are best
appreciated by prosecutors (Gonzales vs.
HSBC, G.R. No. 164904, October 19, 2007).
 Not even the SC can order the prosecution
of a person against whom the prosecutor
does not find sufficient evidence to support
at least a prima facie case. The only
possible exception to the rule is where
there is an unmistakable showing of grave
360 Center for Legal Education and Research
abuse of discretion (Chua vs. Padillo, G.R. No.
163797, April 24, 2007).
 Once a complaint/information is filed in
court, any disposition of the case rests in
its sound discretion. Although the fiscal
retains direction and control of the
prosecution of the criminal case, where it is
already in court, he cannot impose his
opinion on the trial (Crespo vs. Mogul, G.R.
No. L-53373, June 30, 1987).
 The right of the offended party to institute
the criminal prosecution for the commission
of a public offense ceases upon the filing of
the complaint in court, the fiscal taking
charge of the prosecution of the suit in the
name of the People until the termination
thereof (Salcedo vs. Liwag, No. L-21068,
November 29, 1963).
 The determination of whether or not
information should be lodged with the court
lies within the exclusive realm of the
prosecutor (Ogburn vs. CA, G.R. No. 102795,
August 10, 1992).
Conditions for a private prosecutor to
prosecute a criminal action:
a) The public prosecutor has a heavy work
schedule, or there is no public prosecutor
assigned in the province or city;
b) The private prosecutor is authorized in
writing by the Regional State Prosecutor
(RSP), Chief Prosecutor‘s Office;
c) The authority of the private prosecutor must
be approved by the court; and,
d) The private prosecutor shall continue to
prosecute the case until the end of the trial
unless the authority is withdrawn or
otherwise revoked. (A.M. No. 02-2-07-SC, 1
May 2002)
In case of the withdrawal or revocation of the
authority of the private prosecutor, the same
must be approved by court (Memo Circ. No. 25,
April 26, 2002, Regarding Amendment to Sec. 5, Rule
110).
In appeals before the CA and the SC, only the
Solicitor General is authorized to bring and
defend actions in behalf of the People of the
Philippines(Ong vs. Genio, G.R. No. 182336,
December 23, 2009).
 Purple Notes
In all cases elevated to the Sandiganbayan and
from the Sandiganbayan to the SC, the Office of
the Ombudsman, through the Special Prosecutor
shall represent the People of the Philippines,
except in cases filed pursuant to E.O. Nos. 1, 2,
14 and 14-A, issued in 1986, involving the ill-
gotten wealth of Pres. Marcos, his wife, close
relatives, etc. (R.A. No. 8249, An Act Defining the
Jurisdiction of Sandiganbayan).
Prosecution of criminal action in the Municipal
Trial Court or in a Municipal Circuit Trial Court
shall also be under the direction and control of
the prosecutor. However, when the prosecutor
assigned is not available, the action may be
prosecuted by:
1. the offended party;
2. any peace officer; or,
3. public officer charged with the enforcement
of the law violated (OCA Circular No. 39-2002,
August 21, 2002).
7.B.5 Sufficiency of Complaint or
Information: (Rule 110, Sec. 6)
 The test of the information‘s sufficiency is
whether the crime is described in intelligible
terms and with such particularity with
reasonable certainty so that the accused is
duly informed of the offense charged. In
particular, whether an information validly
charges an offense depends on whether the
material facts alleged in the complaint or
information shall establish the essential
elements of the offense charged as defined
in the law. The raison d‘etre of the
requirement in the Rules is to enable the
accused to suitably prepare his defense
(Miguel vs. Sandiganbayan, G.R. No. 172035,
July 4, 2012).
The complaint or information is sufficient
when the following are present: (NamDAc-
NaDaP)
1. The name of the accused (Rule 110, Sec.
7);
2. The designation of the offense given by the
statute (Rule 110, Sec. 8);
Remedial Law
3. The acts or omissions complained of
constituting the offense (Rule 110, Sec. 8
and 9);
4. The name of the offended party (Rule 110,
Sec. 12);
5. The approximate date of the commission of
the offense (Rule 110, Sec. 11); and,
6. The place where the offense was
committed (Rule 110, Sec. 10).
Note: When an offense is committed by more
than one person, all of them shall be included in
the complaint or information. (Rule 110, Sec. 6)
 The real nature of the criminal charge is
determined not from the caption or
preamble of the information, or from the
specification of the provision of law alleged
to have been violated, which are mere
conclusions of law, but by the actual recital
of the facts in the complaint or information
(People vs. Valdez, G.R. No. 175602, Jan 18,
2012).
 The allegation in the information of the
various ways of committing the offense
should be regarded as a description of only
one offense and the information is not
thereby rendered defective on the ground of
multifariousness(People vs. Soria, G.R. No.
179031, November 14, 2002).
Name of the accused (Rule 110, Sec. 7)
Complaint or Information must state:
1. The name and surname of the accused; or;
2. Any appellation or nickname by which he
has been or is known.
3. If his name cannot be ascertained, he must
be described under a fictitious name with a
statement that his true name is unknown.
4. If the true name of the accused is
thereafter disclosed by him or appears in
some other manner to the court, such true
name shall be inserted in the complaint or
information and record.
 If the accused believes that there is a
mistake in his name as set forth in the
complaint or information, he should
call the attention of the court about it
Bar Operations C ommissions 361
 Purple Notes
Remedial Law
at the time of arraignment. If he fails
to do so he is estopped from raising
the same question later on (People vs.
Narvaez, G.R. No. 39799, March 20, 1934).
 Proving the identity of the accused as the
malefactor is the prosecution‘s primary
responsibility. Accordingly, the first duty of
the prosecution is not to prove the crime
but to prove the identity of the criminal, for
even if the commission of the crime can be
established, there can be no conviction
without proof of identity of the criminal
beyond reasonable doubt (People vs. Espera,
G.R. No. 202868, October 2, 2013).
 A mistake in the name of the accused is not
equivalent, and does not necessarily
amount to a mistake in the identity of the
accused especially when sufficient evidence
is adduced to show that the accused is
pointed to as one of the perpetrators of the
crime(People vs. Amodia, G.R. No. 173791,
April 7, 2009).
Q: Is the phrase ―conniving, confederating
and mutually helping with each other…‖
sufficient in alleging conspiracy in the
Information?
A:When conspiracy is charged as a crime, the
act of conspiring and all the elements of said
crime must be set forth in the complaint or
information. But when conspiracy is not charged
as a crime in itself but only as the mode of
committing the crime as in the case at bar,
there is less necessity of reciting its
particularities in the Information because
conspiracy is not the gravamen of the offense
charged. The conspiracy is significant only
because it changes the criminal liability of all the
accused in the conspiracy and makes them
answerable as co-principals regardless of the
degree of their participation in the crime. The
liability of the conspirators is collective and each
participant will be equally responsible for the
acts of others, for the act of one is the act of all
(Lazarte vs. Sandiganbayan, G.R. No. 180122, March
13, 2009).
Place of Commission of the Offense(Rule 110,
Sec. 10)
General Rule: The complaint or information is
sufficient if it can be understood from its
362 Center for Legal Education and Research
allegation that the offense was committed or
some of its essential ingredients occurred at
some place within the jurisdiction of the court.
Exception: When the particular place where it
was committed constitutes an essential element
of the offense charged or is necessary for its
identification, e.g. Theft in National Library (Art.
311, RPC).
Date of Commission of the Offense(Rule 110,
Sec. 11)
General Rule: It is not necessary to state the
precise date of the commission of the offense.
Exception: When it is a material ingredient of
the offense, e.g. Interruption of Religious
Worship (Art. 132, RPC).
 The remedy against an indictment that fails
to allege the time of commission of the
offense with sufficient definiteness is a
motion for a bill of particulars(Rocaberte vs.
People of the Philippines, G.R. No. 72994,
January 23, 1991).
 Failure to specify the exact date/time when
the rape occurred odes not ipso facto make
the Information defective on its face. The
date/time of the commission of rape is not
material ingredient of said crime because
the gravamen of rape is carnal knowledge of
a woman, through force and intimidation
(People vs. Magbanua, G.R. No. 128888,
December 3, 1999).
Note: The date and time of the commission
of the crime of rape becomes important only
when it creates serious doubt as to the
commission of the rape itself or the
sufficiency of the evidence for purposes of
conviction. In other words, the "date of the
commission of the rape becomes relevant
only when the accuracy and truthfulness of
the complainant‘s narration practically hinge
on the date of the commission of the
crime,‖(People vs. Pareja, G.R. No. 202122,
January 15, 2014)
Name of the Offended Party (Rule 110, Sec.
12)
The complaint or information must state:
 Purple Notes
1) The name and surname of the person
against whom or against whose property
the offense was committed; or
2) Any appellation or nickname by which such
person has been or is known.
3) If there is no better way of identifying him,
he must be described under a fictitious
name.
In Offenses against Property:
1. Name of the Offended Party Unknown.
If the name of the offended party is
unknown, the property must be described
with such particularity as to properly
identify the offense charged.(Rule 110, Sec.
12a)
2. True Name of the Offended Party
Disclosed.
If the true name of the person against
whom or against whose property the
offense was committed is thereafter
disclosed or ascertained, the court must
cause such true name to be inserted in the
complaint or information and the
record.(Rule 110, Sec. 12b)
Note:
1. In offense against property, if the subject
matter of the offense is generic and not
identifiable, such as money unlawfully taken,
an error in the designation of the offended
party is FATAL and would result in the
acquittal of the accused.
2.If the subject matter of the offense is specific
and identifiable, an error in the designation
of the offended party is IMMATERIAL.
If the Offended Party is a Juridical Person:
A. State its name or any name or designation
by which it is known or by which it may be
identified; and,
2. There is no need to aver that it is a juridical
person or that it is organized in accordance
withlaw.
Remedial Law
7.B.6 Designation of the Offense (Rule 110,
Sec. 8)
1. The designation of the offense given by the
statute.
If there is no designation of the offense,
reference shall be made to the section or
subsection of the statute punishing it.
The failure to make a designation of the offense
must be regarded as constituting a mere defect
in the form, not tending to prejudice any
substantial right of the defendant (U.S. vs. Li-Dao,
G.R. No. 1316, August 29, 1903).
The nature and character of the crime charged
are determined not by the specification of the
provision of the law alleged to have been
violated but by the facts stated in the
indictment, that is, the actual recital of the facts
in the body of the information, and not the
caption or preamble of the information or
complaint nor the specification of the provision
of law alleged to have been violated, they being
conclusions of law(People vs. Dasmariñas, G.R. No.
203986, October 04, 2017).
2. The acts or omissions constituting the
offense; and,
3. Qualifying and aggravating circumstances.
The qualifying and aggravating
circumstances cannot be appreciated even if
proved unless alleged in the information
Note: Failure to allege aggravating and
qualifying circumstances cannot be cured by an
amendment of the information after the accused
entered his plea (People vs. Antonio, G.R. No.
144266, November 27, 2002).
However, even though aggravating
circumstance cannot be considered to impose a
graver penalty, it can still be a basis for the
awarding of exemplary damages(People vs. Evina,
G.R. No. 124830-31, June 27, 2003).
For example, it is not sufficient to merely state
that the offense was committed with treachery
without alleging the facts that gave rise to
Bar Operations C ommissions 363
 Purple Notes
Remedial Law
treachery(Riano, Criminal Procedure, p. 97, 2016
ed.).
The real nature of the criminal charge is
determined not from the caption or preamble of
the information, or from the specification of the
provision of law alleged to have been violated,
which are mere conclusions of law, but by the
actual recital of facts in the complaint or
information(Jimenez vs. Hon. Sorongon, G.R. No.
178607, December 5, 2012).
7.B.7 Cause of the Accusation (Rule 110, Sec.
9)
1. Acts or omissions complained of as
constituting the offense; and,
2. Qualifying and aggravating circumstances.
These must be stated in ordinary and concise
language and not necessarily in the language
used in the statute but in terms sufficient:
a. To enable a person of common
understanding to know what offense is
being charged as well as its qualifying and
aggravating circumstances; and,
b. For the court to pronounce judgment.
Defendant cannot be convicted of an
offense of which he has not been informed
or for a crime higher than that alleged in
the information.
 Proof of the age of the victim cannot
consist merely of testimony. Neither can a
stipulation of the parties with respect to the
victim‘s age be considered sufficient proof
of minority. The same cannot be used to
impose the higher penalty of capital
punishment on the accused-appellant
(People vs. Mejia, G.R. No. 185723, August 04,
2009).
Allegations in a Complex Crime
 The allegations contained therein do not
necessarily have to charge a complex crime
as defined by law. It is sufficient that the
information contains allegations which state
that one offense was a necessary means to
364 Center for Legal Education and Research
commit the other (People vs. Alagao, G.R. No.
L-20721, April 30, 1966).
Where what is alleged in the information
is a complex crime and the evidence fails
to support the charge as to one of the
component offenses, the defendant can be
convicted of the offense proven (Gonzaludo
vs. People, G.R. No. 150910, February 6, 2006).
7.B.8 Duplicity of the Offense, Exception
(Rule 110, Sec. 13)
Duplicity is the joinder of two (2) or more
distinct and separate offenses in one complaint
or information. It is a ground to quash the
information under Rule 117. Under Sec. 13, Rule
110, complaint or information must charge
onlyone offense except when the law
prescribes a single punishment for various
offenses(Soriano vs. People, G.R. No. 159517-18,
June 30, 2009).
Duplicity of the offense is a ground for a
motion to quash(Rule 117, Sec. 3[f]).
General Rule: A complaint or information must
charge onlyone offense.
Exceptions: (CSI-CV)
1. Complex crimes;
2. Special complex crimes;
3. When the other offense stated is only an
Ingredient or essential element of the real
offense charged;
4. Continuous crime or delitocontinuado; and,
5. Crimes susceptible of being committed in
Various modes.
 Should the information be defective
because of duplicity (also called
multifariousness), an objection must be
timely interposed by the accused before
trial; otherwise, he is deemed to have
waived such defect. Consequently, the
court may convict him for as many offenses
as are charged and proved, and impose on
him the penalty for each offense.
 Reckless imprudence is a single crime, the
consequences on persons and property is
 Purple Notes
Remedial Law
material only to determine the penalty. of court been entered be with leave of
Thus, the prior acquittal or conviction of can be effected court as the
reckless imprudence bars the subsequent without leave of original
prosecution for the same quasi-offense(Ivler court. information has to
vs. Judge San Pedro, G.R. No. 172716, be dismissed.
November 17, 2010).
Necessity Where the Another
of amendment is preliminary
7.B.9 Amendment or Substitution of another only as to form, investigation is
Complaint orInformation(Teehankee Jr. vs. pre- there is no need required and the
Madayag, G.R. No. 103102, March 6, 1992) liminary for another accused has to
invest- preliminary plead anew to the
AMENDMENT SUBSTITUTION igation investigation new information.
Definition An amended Substitution and and the retaking
and con- information requires or retaking of the plea of
sequence refers to the presupposes that of plea the accused.
same offense the new
charged in the information Rule Where the Where the new
original involves a different second information
information or to offense which does information charges an offense
an offense not include or is involves the which is distinct
which not necessarily same offense, or and different from
necessarily included in the an offense that initially
includes or is original charge. which charged, a
necessarily The accused necessarily substitution is in
included in the cannot claim includes or is order.
original charge. double jeopardy. necessarily
Substantial included in the
amendments to first information,
the information an amendment
after the plea of the
has been taken information is
cannot be made sufficient.
over the
objection of the Requisite BEFORE the 1. No
accused, for if s/ plea – judgment
the original Limitatio a) made has yet been
information ns WITH rendered;
would be leave of 2. The accused
withdrawn, the court; cannot be
accused could b) upon convicted of
invoke double motion by an offense
jeopardy. the charged or
prosecutor of any other
When May be made At any time before ; and, offense
made before or after judgment provided c) with necessarily
the defendant double jeopardy notice to included
pleads. has NOT attached. the therein; and,
offended 3. The accused
Nature of Either formal or Necessarily party. would not
the substantial involves a be placed in
changes changes. substantial change Gen. Rule: double
from the original WITHOUT leave jeopardy.
charge. of court
Exception:
Necessity Amendment Substitution of When the
of leave before plea has information must amendment

Bar Operations C ommissions 365

 Purple Notes
Remedial Law
downgrades the  Petitioner is charged as a principal in the
nature of the case for murder. The addition of the phrase
offense charged ―conspiring, confederating and helping one
or it excludes another‖ does not change the nature of
any accused
petitioner‘s participation as principal in the
from the
complaint or killing; it is a mere formal amendment
information. (Buhat vs. CA, G.R. No. 119601,December 17,
1996).
AFTER the  To amend the Information so as to change
plea – the charge from homicide to murder after
 Covers the petitioner has pleaded not guilty to the
only former is proscribed by the 1st paragraph of
FORMAL Sec. 13 of Rule 110. For certainly, a charge
amendme
from homicide to murder is not a matter of
nt;
 Leave of form; it is one of substance with very
court is serious consequences (Dionaldo vs.
obtained; Dacuycuy, G.R. No. L-55357, October 30, 1981).
and,  Petitioner in this case maintains that,
 Amendme having already pleaded "not guilty" to the
nt is NOT crime of homicide, the amendment of the
prejudicial crime charged in the information from
to the homicide to murder is a substantial
rights of amendment prejudicial to his right to be
the
informed of the nature of the accusation
accused.
against him. He utterly fails to dispute,
General Rule: however, that the original information did
A substantial allege that petitioner stabbed his victim
amendment is "using superior strength". And this
proscribed after particular allegation qualifies a killing to
arraignment. murder, regardless of how such a killing is
Exception: If technically designated in the information
the same is filed by the public prosecutor (Buhat vs. CA,
BENEFICIAL to G.R. No. 119601,December 17, 1996).
the accused.
(Ricarze vs.
Court of
Appeals, G.R. Amendment from Homicide to Murder,
No. 160451, declared Formal
February 09,
2007)  The Court reasoned that while the
amended information was for murder, a
Note: The test as to when the rights of an reading of the information shows that the
accused are prejudiced by the amendment of a only change made was in the caption of the
complaint or information is: when a defense of case; and in the opening paragraph or
the accused, under the original complaint or preamble of the information, with the
information would no longer be available after crossing out of word ―Homicide‖ and its
the amendment is made, and when any replacement by the word ―Murder‖. There
evidence the accused might have would be was NO change in the recital of facts
inapplicable to the complaint or information, as constituting the offense charged or in the
amended (Kummer vs. People, G.R. No. 174461, determination of the jurisdiction of the
September 11, 2013). court. The averments in the amended
information for murder are exactly the
same as those already alleged in the
366 Center for Legal Education and Research
 Purple Notes
original information for homicide, as there
was not at all any change in the act
imputed to the accused. Thus, the Court
found the amendment made in the caption
and preamble from ―Homicide‖ to ―Murder‖
as purely FORMAL (Pacoy vs. Cajigal, G.R. No.
157472, September 28, 2007).
Variance between the indictment and the
proof (Rule 110, Sec. 14)
When the offense proved is less serious than,
and is necessarily included in, the offense
charged, the defendant shall be convicted of the
offense proved.
When the offense proved is more serious than
and includes the offense charged, the defendant
shall be convicted only of the offense charged.
When the offense proved is neither included in,
nor does it include, the offense charged and is
different therefrom, the court should dismiss the
action and order the filing of new information
charging the proper offense.
Note: The above rule is known as the Principle
of Variance. To resolve the variance, decide in
favor of the accused.
7.B.10 Venue of Criminal Actions (Rule 110,
Sec. 15)
Venue in criminal cases is:
1. Jurisdictional;
2. Cannot be the subject of agreement; and,
3. Ground for motion to quash if erroneously
laid.
General Rule: Criminal action shall be
instituted and tried in the court of the
municipality or territory where the offense was
committed or where any of its essential
ingredients occurred.(Barrameda vs. CA, G.R. No.
96428, September 2, 1999)
Exceptions:
1. Cases originally cognizable by the
Sandiganbayan, the jurisdiction of
which depends upon the nature of the
Remedial Law
offense and the position of the accused
(Subido vs. Sandiganbayan, G.R. No.
122641, January 20, 1997). As its
jurisdiction is national in scope, the
case need not be tried in the place
where the act was committed;
2. Libel. The action may be instituted at the
election of the offended or suing party in the
province or city:
a. Where the libelous article was printed and
first published (Agbayani vs. Sayo, G.R.
No. L-47880, April 30, 1979);
b. If one of the offended parties is a private
individual, where said private individual
actually resides at the time of the
commission of the offense (Ibid); or,
c. If the offended party is a public official,
where the latter holds office at the time
of the commission of the offense (Ibid);
3. Continuing offenses;
4. Kidnapping or illegal detention,
whenever the deprivation of liberty was
carried out (People vs. Parulan, 88 Phil
615). The same rule applies to
abduction with rape (People vs. Gorospe,
et al. G.R. No. 51513, May 15, 1984).
5. Piracy, which is triable anywhere
(Riano, Criminal procedure, 2011 edition, p.
7);
6. Extraterritorial crimes pursuant to Art.
2 of the RPC – cognizable by the court
where the criminal action is first filed
(Rule 110, Sec 15d);
7. Offenses committed in a train, aircraft or
other vehicle while in the course of the trip;
a. The criminal action shall be instituted and
tried in the court of any municipality or
territory where such vehicle passed during
its trip, including the place of its
departure and arrival.
b. As regards offenses committed on board a
vessel in the course of its voyage, the
criminal action shall be instituted and
tried in the court of the first port of entry
or of any municipality or territory where
the vessel passed during such voyage,
subject to the generally accepted
principles of international law (Calme vs.
CA, G.R. No. 116688, August 30, 1996).
Bar Operations C ommissions 367
 Purple Notes
Remedial Law
8. The crime of perjury committed
through the making of a false affidavit
under Art. 183 of the RPC is committed
at the time the affiant subscribes and
swears to his or her affidavit since it is
at that time that all the elements of the
crime of perjury are executed. When
the crime is committed through false
testimony under oath in a proceeding
that is neither criminal nor civil, venue
is at the place where the testimony
under oath is given. If in lieu of or as
supplement to the actual testimony
made in a proceeding that is neither
criminal nor civil, a written sworn
statement is submitted, venue may
either be at the place where the sworn
statement is submitted or where the
oath was taken as the taking of the
oath and the submission are both
material ingredients of the crime
committed. In all cases, the
determination of venue shall be based
on the acts alleged in the Information
to be constitutive of the crime (Union
Bank of the Philippines vs. People, G.R. No.
192565, February 28, 2012).
9.Where the Supreme Court, pursuant to its
constitutional powers, orders change of
venue or place of trial to avoid miscarriage of
justice (Sec. 5[4], Art. VIII, 1987
Constitution of the Philippines).
7.B.11 Intervention of the Offended Party
in Criminal Action (Rule 110, Sec. 16)
General Rule: Offended party has the right to
intervene by counsel in the prosecution of the
criminal action where the civil action for
recovery of civil liability is instituted in criminal
action pursuant to Rule 111.
Exceptions:
1. Where from the nature of the crime and the
law defining and punishing it, no civil liability
arises in favor of the offended party; and,
2. Where the offended party has waived his
right to civil indemnity OR has expressly
reserved his right to institute a civil action
OR has already instituted said action.
368 Center for Legal Education and Research
7.C. PROSECUTION OF CIVIL ACTION (Rule
111)
 Our law recognizes two kinds of acquittal,
with different effects on the civil liability of
the accused.
First is an acquittal on the ground that the
accused is not the author of the act or
omission complained of. This instance closes
the door to civil liability, for a person who
has been found to be not the perpetrator of
any act or omission cannot and can never
be held liable for such act or omission.
There being no delict, civil liability ex delicto
is out of the question, and the civil action, if
any, which may be instituted must be based
on grounds other than the delict complained
of. This is the situation contemplated in Rule
III of the Rules of Court.
Second is an acquittal based on reasonable
doubt on the guilt of the accused. In this
case, even if the guilt of the accused has
not been satisfactorily established, he is not
exempt from civil liability which may be
proved by preponderance of evidence only.
This is the situation contemplated in Article
29 of the Civil Code, where the civil action
for damages is "for the same act or
omission." (Castillo vs. Salvador, G.R. No.
191240, July 30, 2014)
7.C.1 Rule on Implied Institution of Civil
Action with Criminal Action(Rule 111, Sec. 1)
General Rule: When a criminal action is
instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be
deemed instituted with the criminal action.
Exceptions: (WaRes-In)
1. When the offended party waives the civil
action;
2. When the offended party reserves his right
to institute a separate civil action; or,
3. When offended party institutes a civil action
prior to the criminal action.
 Purple Notes
 Because of the rule that the civil action is
impliedly instituted with the criminal action,
the trial court should, in case of conviction,
state the civil liability or damages caused by
the wrongful act or omission to be
recovered from the accused by the offended
party, if there is any and if the filing of the
civil action has not been reserved,
previously instituted or waived. (Hun Hyung
Park vs. Eun Wong Choi, G.R. No. 165496,
February 12, 2007).
The civil liability may consist of restitution,
reparation of the damage caused or
indemnification of consequential damages (Art.
104, RPC).
 Civil liability is not part of the penalty for the
crime committed (Ramos vs. Gonong, G.R. No.
L-42010, August 31, 1976).
Q: A physician-anesthesiologist has
been pronounced guilty of reckless
imprudence resulting in serious physical
injuries by the RTC, expressly holding
Ospital ng Maynila civilly liable jointly and
severally with the former. Was the decree
of RTC correct in holding Ospital ng
Maynila liable?
A: No, in criminal prosecutions, the civil action
for the recovery of civil liability that is deemed
instituted with the criminal action refers only to
that arising from the offense charged. The lower
court erred in adjudging that Ospital ng Maynila
is solidarily liable with Dr. Solidium for the
damages despite the obvious fact that Ospital
ng Maynila, being an artificial entity, had not
been charged along with Dr. Solidium. Ospital
ng Maynila could be held civilly liable only when
subsidiary liability would be enforceable
pursuant to Articl 103 of the Revised Penal Code
(Solidum vs. People, G.R. No. 192123, March 10,
2014).
When Reservation shall be made
a. Before the prosecution starts to present its
evidence; and,
Remedial Law
b. Under circumstances affording the offended
party reasonable opportunity to make such
reservation.
 Where the civil action is instituted
separately, the general rules of venue in
civil actions apply, EXCEPT in case of libel,
which has a special rule of venue.
 Where there is waiver/reservation, the
private prosecutor disqualifies himself from
the criminal proceeding.
Instances when Party is NOT Authorized
to Make Reservation:
1. B.P. 22 cases (Rule 110, Sec. 1, par. b)
2. Cases cognizable by Sandiganbayan (Sec. 4
of PD 1606, Sandiganbayan Act, as amended by
RA 8249)
3. Tax cases (Sec. 7, Par. b, No. 1, RA 9282, An
Act Expanding the Jurisdiction of CTA)
Doctrine of Primacy of Criminal Cases over
Civil Actions
Rules:
1. After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final
judgment in the criminal action.
2. If the criminal action is filed after the said
civil action has already been instituted, the
latter shall be suspended in whatever
stage it may be found before judgment on
the merits.
3. Suspension shall last until final judgment is
rendered in the criminal action.
Exceptions: (InPre-ConAr)
1. Independent civil actions;
2. Prejudicial civil actions;
3. When the civil case is subsequently
consolidated with the criminal action;
4. Where the civil action does not arise from
the offense charged in the criminal case.
 Even if the civil action is suspended, the
court wherein it is pending can issue
auxiliary writs therein, such as preliminary
Bar Operations C ommissions 369
 Purple Notes
Remedial Law
injunction or attachment, appointment of
receivers and similar processes which do not
necessarily go into the merits of the case
(Babala vs. Abano, G.R. No. L–4600, February
28, 1952).
Rules on Consolidation of Criminal and
Civil Action
1.Done before judgment on the merits is
rendered in the civil action, upon motion of
the offended party.
2. Not mandatory.
3. Evidence already adduced in the civil action
deemed automatically reproduced in the
criminal action without prejudice to the right
of the prosecution to cross-examine the
witnesses presented by the offended party in
the criminal case, and of the parties to
present additional evidence (Rule 111, Sec.2,
par.2).
When Acquittal in a Criminal Action Bars
the Civil Action Arising Therefrom
1. The judgment of acquittal holds that the
accused did not commit the acts imputed to
him;
2. The accused was not guilty of criminal, or
even civil negligence.
When Acquittal in a Civil Case does NOT
Bar Criminal Action
1. Where acquittal is based on reasonable
doubt;
2. Where the assessed liability is not criminal
but only civil in nature;
3. Where the civil liability does not arise from
or is not based upon the criminal act of
which the accused was acquitted.
 The extinction of the penal action does not
carry with it extinction of the civil action.
However, the civil action based on delict
shall be deemed extinguished if there is a
finding in a final judgment in the criminal
action that the act or omission from which
the civil liability may arise did not exist
(Sapiera vs. CA, G.R. No. 128927, September 14,
1999).
370 Center for Legal Education and Research
Judgment in civil action not a bar to a
criminal action for the same act or
omission.
A final judgment rendered in a civil action
absolving the defendant from civil liability is not
a bar to a criminal action against the defendant
for the same act or omission subject of the civil
action (Rule 111, Sec. 5).
 The extinction of civil liability refers
exclusively to civil liability arising from
crime (delict); whereas the civil liability for
the same act arising from other sources of
obligation (law, contract, quasi-contract,
quasi-delict) is not extinguished even by a
declaration in the criminal case that the
criminal act charged has not happened or
has not been committed by the accused
(Tayag vs. Alcantara, G.R. No. L-50959, July 23
1980).
7.C.2 When Civil Action May Proceed
Independently
An independent civil action comprising of Article
32, 33, 34 and 2176 of the New Civil Code, may
proceed independently of the criminal action
and shall require only a preponderance of
evidence. In no case shall the offended party
recover damages twice for the same act or
omission.(Rule 111, Sec. 3)
Rules on Independent Civil Actions(Rule
111, Sec. 3)
1. Involve cases provided in Arts. 32, 33, 34 &
2176 of the New Civil Code.
2. The civil liability under all the said articles
arises from the same act or omission of the
accused.
3. Only preponderance of evidence is required.
4. The offended party may not recover
damages twice for the same act or
omission.
5. May be brought by the offended party
during the pendency of the criminal case.
Note:There is no more need for a reservation
(Casupanan vs. Laroya, G.R. No. 145391, August 26,
2002).
 Purple Notes
General Rule: Independent civil action is
deemed instituted with criminal action.
Exception: When the civil action is filed prior to
criminal action.
Exception to the Exception: When the
prosecution of independent civil action is parallel
to the prosecution of criminal action, there is
neither suspension of independent civil action
nor consolidation thereof(Casupanan vs. Laroya,
G.R. No. 145391, August 26, 2002).
Under Section 1 of the present Rule 111, what is
"deemed instituted" with the criminal action is
only the action to recover civil liability arising
from the crime or ex-delicto. All the other civil
actions under Articles 32, 33, 34 and 2176 of
the Civil Code are no longer "deemed
instituted," and may be filed separately and
prosecuted independently even without any
reservation in the criminal action. The failure to
make a reservation in the criminal action is not a
waiver of the right to file a separate and
independent civil action based on these articles
of the Civil Code. The prescriptive period on the
civil actions based on these articles of the Civil
Code continues to run even with the filing of the
criminal action. Verily, the civil actions based on
these articles of the Civil Code are separate,
distinct and independent of the civil action
"deemed instituted" in the criminal action
(Casupanan vs. Laroya, G.R. No. 145391, August 26,
2002).
Section 2, Rule 111 of the present Rules did not
change the rule that the separate civil action,
filed to recover damages ex-delicto, is
suspended upon the filing of the criminal action.
Section 2 of the present Rule 111 also prohibits
the filing, after commencement of the criminal
action, of a separate civil action to recover
damages ex-delicto (Casupanan.vs. Laroya, G.R.
No. 145391, August 26, 2002)
Rule where the Civil Action has been Filed
Separately and Trial thereof has not yet
Commenced
Remedial Law
1. It may be consolidated with the criminal
action upon application with the court trying
the latter case.
2. Should be done before judgment on the
merits in the civil action.
3. If the application is granted, the trial of both
actions shall proceed in accordance with Sec.
2 of this Rule governing consolidation of the
civil and criminal actions.
4. An independent civil action cannot be
consolidated with a criminal action.
Note: No counterclaims, cross-claims or 3rd
party complaints are allowed in a criminal
proceeding. Any claim which would have been
the subject thereof may be litigated in a
separate civil action(Supreme Transportation vs.
San Andres, G.R. No. 200444, August 15, 2018).
Rules on civil aspect involving violation of
B.P. 22
1. The corresponding civil action shall be
deemed instituted.
2. No reservation to file such civil action
separately shall be allowed.
3. The filing fees shall be paid in full based on
the amount of the check involved, which
shall be considered as the actual damages
claimed.
4. Additional filing fees shall be paid if other
forms of damages are sought. If the
amounts thereof are not alleged but any of
these damages are subsequently awarded,
the filing fees based on the amount awarded
shall constitute a first lien on the judgment.
5. Filing fee is due for each count (Chua vs.
Executive Judge, G.R. No. 202920,
October 2, 2013).
7.C.3 When Separate Civil Action is
Suspended
1. After the commencement of the criminal
action, a separate civil action which the
offended party has reserved cannot be
instituted until final judgment has been
rendered in the criminal action.
2. If the civil action has already been
instituted before the criminal action, the
civil action shall be suspended until final
Bar Operations C ommissions 371
 Purple Notes
Remedial Law
judgment in the criminal action is rendered.
In such case, the offended party has the
option of consolidating the civil action with
the criminal proceeding.
During the pendency of criminal action, the
running of the prescriptive period of the
civil action which cannot be instituted
separately or whose proceeding has been
suspended shall be tolled (Rule 111, Sec. 2).
3. The bar on the institution or suspension of
the separate civil actions has the following
exceptions:
1.) In cases of independent civil actions
under Articles 32, 33, 34 and 2176 of
the Civil Code.
2.) When the civil action raises a
prejudicial question,
3.) Where the civil action is consolidated
with the criminal action,
4.) When the civil action is not one
intended to enforce the civil liability
arising from the crime.
Q: Co was charged by Lim for the crime of
estafa, however the former was acquitted
as well as relieved of civil liability from
such criminal case. Pending appeal for
civil liability of such criminal case, Lim
instituted a civil complaint for specific
performance and damages. Is such action
legally possible?
A: A single act or omission that causes damage
to an offended party may give rise to two
separate civil liabilities on the part of the
offender. The civil liability arising from the
offense and the independent civil liabilities.
Because of the distinct and independent nature
of the two kinds of civil liabilities, jurisprudence
holds that the offended party may pursue the
two types of civil liabilities simultaneously or
cumulatively, without offending the rules on
forum shopping. The latter case involves only
the obligations arising from contract and from
tort, whereas the appeal in the estafa case
involves only the civil obligations of Co arising
from the offense charged. They present
different causes of action, which under the law,
372 Center for Legal Education and Research
are considered "separate, distinct, and
independent" from each other. Both cases can
proceed to their final adjudication, subject to
the prohibition on double recovery under Article
2177 of the Civil Code(Lily Lim vs. Kou Co Ping,
G.R. No. 175256 August 23, 2012).
7.C.4 Effect of Death on Civil Actions (Rule
111, Sec. 4)
If accused dies:
Before arraignment – the case shall be
dismissed without prejudice to any civil action
the offended party may file against the estate of
the deceased.
After arraignment and during the pendency of
the criminal action – the death of the accused
shall extinguish the civil liability arising from the
delict.
 However, the independent civil action
instituted under Sec. 3 of this Rule or which
thereafter is instituted to enforce liability
arising from other sources of obligation may
be continued against the estate or legal
representative of the accused after proper
substitution or against said estate, as the
case may be (People vs. Bayotas, G.R. No.
102007 September 2, 1994).
 The death of the accused pending appeal of
his conviction extinguished his criminal
liability as well as the civil liability ex delicto.
Corollarily, the claim for civil liability
survives, if the same may also be predicated
on a source of obligation other than delict
(People vs. Bayotas, G.R. No. 102007 September
2, 1994).
7.C.5 Suspension by Reason of Prejudicial
Question(Rule 111, Sec. 6)
Prejudicial Question is that which arises in a
case, the resolution of which is the logical
antecedent of the issue involved therein, and
the cognizance of which pertains to another
tribunal.
It must be determinative of the criminal case
before the court but the jurisdiction to try and
resolve must be lodged in another court or
 Purple Notes
tribunal(People vs. Consing, Jr., G.R. No. 148193,
January 16, 2003).
Elements of Prejudicial Question: (TIP)
1. There are two actions involved, civil and
criminal.
2. Previously instituted civil action involves an
issue similar or intimately related to the
issue raised in the subsequent criminal
action.
3. The resolution of such issue determines
whether or not the criminal action may
proceed(Rule 111, Sec. 7).
Illustration
Where the husband was charged with bigamy
by the 2nd wife, a civil action previously brought
by said husband for the annulment of the
subsequent marriage on the ground that he was
forced to contract said marriage is prejudicial to
the criminal action.
 Jurisdiction to try said question must be
lodged in another tribunal (Magestrado vs.
People, G.R. No. 148072, July 10, 2007).
 One of the elements of the crime of estafa
with abuse of confidence is a demand
made by the offended party to the
offender. Under the circumstances, since
the alleged offended party is the
corporation, the validity of the demand for
the delivery of the subject vehicles rests
upon the authority of the person making
such a demand on the company‘s behalf. If
supposed authority is found to be defective,
it is as if no demand was ever made,
hence, the prosecution for estafa cannot
prosper (Riano, Criminal Procedure, 2016, pp.
168-169).
Where to File Petition for Suspension by
Reason of Prejudicial Question (Rule 111,
Sec. 6)
a. During Preliminary Investigation – in the
office of the prosecutor or the court
conducting the preliminary investigation.
Remedial Law
b. During Trial – in the same court trying the
criminal action at any time before the
prosecution rests.
 The Doctrine of Prejudicial Question does
NOT apply where no civil but only
administrative case is involved. There is no
prejudicial question where one case is
administrative and the other civil (Te vs.
Court of Appeals, G.R. No. 126746, November
29, 2000).
 In the instant case, Art. 36 of the Civil Code
and Sec. 7 of Rule 111 of the Rules of
Court are susceptible of an interpretation
that would harmonize both provisions of
law. The phrase "previously instituted civil
action" in Sec. 7 of Rule 111 is plainly
worded and is not susceptible of alternative
interpretations. The clause "before any
criminal prosecution may be instituted or
may proceed" in Art. 36 of the Civil Code
may, however, be interpreted to mean that
the motion to suspend the criminal action
may be filed during the preliminary
investigation with the public prosecutor or
court conducting the investigation, or
during the trial with the court hearing the
case (Dreamwork Construction, Inc. vs. Janiola,
G.R. No. 184861, June 30, 2009).
 The rationale behind the principle of
suspending a criminal case in view of a
prejudicial question is to avoid two
conflicting decisions (Magestrado vs. People,
G.R. No. 148072, July 10, 2007) .
Annulment / Nullity of Marriage NOT a
Prejudicial Question to Parricide, Bigamy
and Concubinage
 At the time of the commission of the
alleged crime, petitioner and respondent
were married. The subsequent dissolution
of their marriage, in case the petition [in
the civil case] is granted, will have no effect
on the alleged crime that was committed at
the time of the subsistence of the marriage.
In short, even if the marriage between
petitioner and respondent is annulled,
petitioner could still be held criminally liable
since at the time of the commission of the
alleged crime, he was still married to
Bar Operations C ommissions 373
 Purple Notes
Remedial Law
respondent (Pimentel vs. Pimentel, G.R. No.
172060, September 13, 2010).
Note: An independent civil action does not
operate as a prejudicial question to a criminal
action.
 An independent civil action proceeds
independently of the criminal action (Rule
111, Sec. 3). Because of the [said] rule, ―An
independent civil action based on fraud,
initiated by the defrauded party does not
raise a prejudicial question to stop the
proceedings in a pending criminal
prosecution of the defendant for estafa
through falsification. This is because the
result of the independent civil action is
irrelevant to the issue of guilt or innocence
of the accused.‖ (Consing, Jr. vs. People, G.R.
No. 161075, July 15, 2013)
 At any rate, there is NO prejudicial question
if the civil and criminal action can, according
to law, proceed independently of each other.
Under Rule 111, Section 3 of the Revised
Rules on Criminal Procedure, in the cases
provided in Articles 32, 33, 34 and 2176 of
the Civil Code, the independent civil action
may be brought by the offended party. It
shall proceed independently of the criminal
action and shall require only a 3. Where the amount of damages, other than
preponderance of evidence (Caterpillar, Inc. vs.
Samson, G.R. No. 205972, November 9, 2016).
No Prejudicial Question between an Action
for Cancellation of Trademark and Actions
for Unfair Competition
 An action for cancellation of trademark is a
remedy available to a person who believes
that he is or will be damaged by the
registration of a mark. On the other hand,
the criminal actions for unfair competition
involved the determination of whether or not
Samson had given his goods the general
appearance of the goods of Caterpillar, with
the intent to deceive the public or defraud
Caterpillar as his competitor. In the suit for
the cancellation of trademark, the issue of
lawful registration should necessarily be
determined, but registration was not a
consideration necessary in unfair
374 Center for Legal Education and Research
competition. Indeed, unfair competition is
committed if the effect of the act is ―to pass
of to the public the goods of one man as the
goods of another‖, it is independent of
registration. As fittingly put in R.F. &
Alexander & Co. v. Ang, ―one may be
declared unfair competitor even if his
competing trade-mark is registered.‖ Clearly,
the determination of the lawful ownership of
the trademark in the civil action was not
determinative of whether or not the criminal
actions for unfair competition shall proceed
against Samson (Caterpillar, Inc. vs. Samson,
G.R. No. 205972, November 9, 2016).
7.C.6 Rules on Filing Fees of Civil Actions
Deemed Instituted
1. No filing fees are required for actual
damages, UNLESS required by the Rules.
Example: B.P. 22 cases, where docket fees
are required.(Rule 111, Sec. 1)
2. When the civil liability is sought to be
enforced by way of moral, nominal,
temperate, or exemplary damages without
specifying the amount thereof in the
complaint or information, the filing fees
thereat shall constitute a first lien on the
judgment awarding such damages.
actual, is specified, the corresponding filing
fees shall be paid by the offended party upon
the filing thereof in court.
7.D. PRELIMINARY INVESTIGATION(Rule
112)
Preliminary investigation is an inquiry or
proceeding to determine whether there is
sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty thereof, and
should be held for trial.
 A preliminary investigation is conducted
before an accused is placed on trial to
secure the innocent against hasty,
malicious, and oppressive prosecution; to
protect him from an open and public
accusation of a crime, as well as from the
trouble, expenses, and anxiety of a public
 Purple Notes
trial. It is also intended to protect the State
from having to conduct useless and
expensive trials. Thus, a preliminary
investigation is not a mere formal or
technical right but is a substantive right
(Marcelo vs. Villordon, G.R. No. 173081,
December 15, 2010 citing Uy vs. Office of the
Ombudsman, G.R. Nos. 156399-400, 27 June
2008, further citing Duterte vs. Sandiganbayan,
G.R. No. 130191, April 27, 1998).
7.D.1 Nature of Right to Preliminary
Investigation
General Rule: Not part of the due process
clause of the Constitution but is purely statutory
(Kilusang Bayan vs. Domiguez, G.R. No. 150091 April
2, 2007).
Exception: However, if the law provides for
preliminary investigation and such right is
claimed by the accused, a denial thereof is a
denial of due process and prohibition will lie
against the trial court or if a judgment of
conviction has already been rendered, on
appeal, the same shall be reversed and the case
remanded for preliminary investigation (Go vs.
CA, G.R. No. 101837, February 11, 1992).
 Since it is a personal right, the same may be
waived expressly or impliedly. If waived,
the fiscal may forthwith file the
corresponding information with the proper
court (Marinas vs. Siochi, G.R. No. L-25707, May
14, 1981).
 Since the records do not show whether the
accused-appellant asked for a preliminary
investigation after the case had been filed in
court, as in fact, the accused-appellant
signified his readiness to be arraigned, the
Court can only conclude that he waived his
right to have a preliminary investigation,
when he did, in fact, pleaded "Not Guilty"
upon his arraignment(People vs. Valencia, G.R.
Nos. 94511-13, September 18, 1992).
 The absence of preliminary investigation
does not affect the jurisdiction of the court
or invalidate the information, if no objection
was raised by the accused before entry of
his plea (People vs. De Asis, G.R. No. 105581,
December 7, 1993).
Remedial Law
Preliminary Investigation is:
 Merely inquisitorial; Not a trial of the case
on the merits(De Lima vs. Reyes, G.R. No.
209330, January 11, 2016).
 Merely determines the existence of probable
cause and to file the information if he finds
it to be so(Maza vs. Turla, G.R. No. 187094,
February 15, 2017).
 Can be conducted ex parte if the respondent
cannot be subpoenaed or does not appear
after due notice (Cf. Rodriguez vs.
Sandiganbayan, G.R. No. L-61355, February 18,
1983).
 Does not place the person against whom it
is taken in jeopardy(Jamaca vs. People of the
Philippines, G.R. No. 183681, July 27, 2015).
 Preliminary investigation is a function that
belongs to the public prosecutor and
ultimately, with the Secretary of Justice
(Uniliver Philippines, Inc. vs. Tan, G.R. No.
179367, January 29, 2014).
 Preliminary investigation is essentially an
inquisitorial proceeding, and often, the only
means of ascertaining who may be
reasonably charged with a crime.
Prosecutors control and direct the
prosecution of criminal offenses, including
the conduct of preliminary investigation,
subject to review by the Secretary of
Justice. The duty of the Court in
appropriate cases is merely to determine
whether the executive determination was
done without or in excess of jurisdiction or
with grave abuse of discretion (Heirs of Tria
vs. Atty. Obias, G.R. No. 175887, November 24,
2010).
7.D.2 Purposes of Preliminary
Investigation:
1. To inquire concerning the commission of a
crime and the connection of the accused
with it, in order that he may be informed of
the nature and character of the crime
charged against him, and, if, there is
probable cause for believing him guilty,
that the State may take the necessary
steps to bring him to trial;
2. To preserve the evidence and to keep the
witnesses within the State‘s control;
Bar Operations C ommissions 375
 Purple Notes
Remedial Law
3. To determine the amount of bail, if the
offense is bailable (Callo-Claridad vs. Esteban,
G.R. No. 191567, March 30, 2013).
This Court need not overemphasize that in a
preliminary investigation, the public prosecutor
merely determines whether there is probable
cause or sufficient ground to engender a well-
founded belief that a crime has been committed,
and that the respondent is probably guilty
thereof and should be held for trial.(Callo-Claridad
vs. Esteban, G.R. No. 191567, March 20, 2013).
It does not call for the application of rules and
standards of proof that a judgment of conviction
requires after trial on the merits. The
complainant need not present at this stage
proof beyond reasonable doubt. A preliminary
investigation does not require a full and
exhaustive presentation of the parties' evidence.
Precisely, there is a trial to allow the reception
of evidence for both parties to substantiate their
respective claims.(Estrada vs. Office of the
Ombudsman, G.R. No. 212140-41, January 21, 2015).
 The question to be answered in a
preliminary investigation is not: ―Is the
respondent guilty or is he innocent?‖ More
accurately, the question sought to be
answered is: ―Is the respondent guilty and
therefore, should go to trial?‖ (Riano,
Criminal Procedure, 2011 Edition, p. 143)
7.D.3 Who may conduct the Determination
of the Existence of Probable Cause
The following may conduct preliminary
investigation: (ProNaS-COPCi)
1) Provincial or city fiscal and their assistants;
2) National and regional state prosecutors;
3) Such other officers as may be authorized
by law such as:
a.Comelec;
b.Ombudsman;
c.PCGG; and
d.City and provincial prosecutors (Rule 112,
Sec. 2)
Note:UnderSec. 45 of the Revised Securities
Act, the Securities and Exchange Commission
376 Center for Legal Education and Research
(SEC) has the authority to make such
investigations as it deems necessary to
determine whether any person has violated or is
about to violate any provision of the law. After a
finding that a person has violated the Securities
Regulation Code (R.A. No. 8799),the SEC may
refer the case to the DOJ for preliminary
investigation and prosecution.
Court Interference in the Conduct of
Preliminary Investigation
General Rule: The courts cannot interfere in
the conduct of preliminary investigations,
leaving the investigatory officers sufficient
discretion to determine probable cause.
Exception: When the acts of the officer are
without or in excess of authority resulting from
a grave abuse of discretion (Sps. Balangauan vs.
CA, G.R. No. 174350, August 13, 2008).
Instances When Probable Cause Needs to
be Determined; By Whom
1. Secs. 1 and 3 of Rule 112: By the
investigating officer, to determine whether
there is sufficient ground to engender a well-
founded belief that a crime has been
committed and the respondent is probably
guilty thereof and should be held for trial. A
preliminary investigation is required before
the filing of a complaint or information for an
offense where the penalty prescribed by law
is at least 4 years, 2 months and 1 day
without regard to the fine;
2. Secs. 5 and 8 of Rule 112: By the judge, to
determine whether a warrant of arrest or a
commitment order, if the accused has
already been arrested, shall be issued and
that there is a necessity of placing the
respondent under immediate custody in
order not to frustrate the ends of justice;
3. Sec. 5(b) of Rule 113: By a peace officer or a
private person making a warrantless arrest
when an offense has just been committed,
and he has probable cause to believe based
on personal knowledge of facts or
circumstances that the person to be arrested
has committed it; and,
 Purple Notes
Remedial Law
4. Sec. 4 of Rule 126: By the judge, to DIFFERENCES BETWEEN PRELIMINARY
determine whether a search warrant shall be INVESTIGATION AND PRELIMINARY
issued, and only upon probable cause in EXAMINATION
connection with one specific offense to be
determined personally by the judge after PRELIMINARY PRELIMINARY
examination under oath or affirmation of the INVESTIGATION EXAMINATION
complainant and the witnesses he may Quantum Probable Cause Probable Cause
produce, and particularly describing the place of
Evidence
to be searched and the things to be seized
Nature Executive function Judicial function
which may be anywhere in the Philippines.
Purpose For the filing an For the issuance
information. or non-issuance
Note: Probable cause can be established with
of the warrant of
hearsay evidence, as long as there is substantial arrest.
basis for crediting the hearsay. Hearsay Definition A process to A process to
evidence is admissible in determining probable determine determine the
cause in a preliminary investigation because whether a crime is probability also of
such investigation is merely preliminary, and committed and the accused
does not finally adjudicate rights and obligations the accused or having committed
of parties (PCGG vs. Navarro-Gutierrez, G.R. No. respondent is a crime and
194159, Oct. 21, 2015). probably guilty therefore a
thereof. This is warrant of arrest
conducted by the is issued. This is
7.D.3a DISTINGUISH: EXECUTIVE
prosecutor. conducted by the
VS.JUDICIAL DETERMINATION OF judge.
PROBABLE CAUSE (Riano, Criminal Procedure, 2011 Edition, p. 150)

There are two kinds of determination of Important: A.M. No. 05-8-26-SC

probable cause: executive and judicial. The
executive determination of probable cause is
one made during preliminary investigation. It is
a function that properly pertains to the public
prosecutor who is given a broad discretion to
determine whether probable cause exists and to
charge those whom he believes to have
committed the crime as defined by law and,
thus, should be held for trial.
The judicial determination of probable cause, on
the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be
issued against the accused. While it is within the
trial court‘s discretion to make an independent
assessment of the evidence on hand, it is only
for the purpose of determining whether a
warrant of arrest should be issued. The judge
does not act as an appellate court of the
prosecutor and has no capacity to review the
prosecutor‘s determination of probable cause;
rather, the judge makes a determination of
probable cause independent of the prosecutor‘s
finding (Mendoza vs. People, G.R. No. 197293, 21
April 2014, quoting People vs. Castillo, G.R. No.
171188, June 19, 2009).
 The Ombudsman is given primary
jurisdiction over cases cognizable by the
Sandiganbayan. He is authorized to take
over at any stage, from any investigating
body, the investigation of such cases; a
power not given to investigative bodies (DOJ
vs. Liwag, G.R. No. 149311, February 11, 2005;
Alejandro vs. Office of the Ombudsman Fact-
Finding and Intelligence Bureau, G.R. No.
173121, April 3, 2013; Bueno vs. Office of the
Ombudsman, G.R. No. 191712, September 17,
2014).
Probable Cause vs. Prima Facie
Q: Agents of the NBI applied for the issuance of
search warrants for the search of a warehouse
and of an office, allegedly owned by Michael.
The application alleged that Michael had in his
possession counterfeit shampoo products which
were in violation of the Intellectual Property
Code of the Philippines.
On the same date, Judge Antonio granted the
application and issued Search Warrants.

Bar Operations C ommissions 377

 Purple Notes
Remedial Law
However, in his counter-affidavit, Michael
alleged that there is no prima facie evidence
that he committed the offense charged. Is
Michael correct?
A: No. The determination of probable cause
needs only to rest on evidence showing that
more likely than not, a crime has been
committed and there is enough reason to
believe that it was committed by the accused. It
need not be based on clear and convincing
evidence of guilt, neither on evidence
establishing absolute certainty of guilt. What is
merely required is "probability of guilt." Its
determination, too, does not call for the
application of rules or standards of proof that a
judgment of conviction requires after trial on the
merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that
the act or omission complained of constitutes
the very offense charged (Unilever Philippines Inc.
vs. Tan, G.R. No. 179367, January 29, 2014).
When Preliminary Investigation is
Required
General Rule: A preliminary investigation is
required to be conducted before the filing of a
complaint or information for an offense where
the penalty prescribed by law is at least 4 years,
2 months and 1 day without regard to the fine.
Exception:Sec. 7, Rule 112 (upon inquest
proceedings, or affidavit of the offended party
or arresting officer or person in lawful
warrantless arrests).
Note: On cases governed by the Rules on
Summary Procedure, the prosecutor may not
conduct preliminary investigation anymore.
 The Revised Rule on Summary Procedure
does not provide for a preliminary
investigation prior to the filing of a criminal
case under said Rule. [A judge] cannot be
allowed to arbitrarily conduct proceedings
beyond those specifically laid down by the
Revised Rule on Summary Procedure,
thereby lengthening or delaying the
resolution of the case, and defeating the
express purpose of said Rule. (Uy vs. Judge
378 Center for Legal Education and Research
Javellana, A.M. No. MTJ-07-1666, September 5,
2012)
 If a person is arrested lawfully without a
warrant involving an offense which requires
preliminary investigation, an information or
complaint may be filed against him without
need for a preliminary investigation.
Instead, the person arrested shall be
required to undergo an inquest. This
proceeding is required before a complaint or
information may be filed against the person
arrested. However, such person may ask for
a preliminary investigation but he must sign
a waiver of the provisions of Art. 125 of
Revised Penal Code(Riano, Criminal Procedure,
2016. pp. 197-198).
Guidelines as to Clarificatory Hearing:
1. A hearing may be set only when there are
facts and issues to be clarified from a party
or a witness.
2. The parties can be present at the hearing
BUT without the right to examine or cross-
examine.
3. The parties may submit to the investigating
officer questions which may be asked to the
party or witness concerned.
4. The hearing shall be held within 10 days
from submission of the counter-affidavits and
other documents, or from the expiration of
the period for their submission.
5. The hearing shall be terminated within 5
days.
6. Resolution: within 10 days after investigation
by investigating officer (Riano, Criminal
Procedure, 2011 Edition, p. 177).
A Preliminary Investigation is NOT a
Quasi-Judicial Proceeding
The fact that the DOJ is the primary prosecution
arm of the Government does not make it a
quasi-judicial office or agency. Its preliminary
investigation of cases is not a quasi-judicial
proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of
a public prosecutor on the finding of probable
cause in any case. Indeed, in Bautista vs. Court
of Appeals, the Supreme Court has held that a
preliminary investigation is not a quasi-judicial
 Purple Notes
proceeding (De Lima vs. Reyes, G.R. No. 209330,
January 11, 2016).
Duties of the Investigating Prosecutor
(Rule 112, Sec. 4)
If the investigating prosecutor finds cause to
hold the respondent for trial, he shall:
1. Prepare the resolution and information;
2. Certify under oath in the information that:
a) He, or as shown by the record, an
authorized officer, has personally
examined the complainant and his
witnesses;
b) That there is reasonable ground to
believe that a crime has been committed
and that the accused is probably guilty
thereof;
c) That the accused was informed of the
complaint and of the evidence submitted
against him;
d) That the accused was given an
opportunity to submit controverting
evidence; and,
e) Within 5 days from his resolution,
forward the record of the case to the:
i) Provincial or City Prosecutor; or
ii) Chief state Prosecutor; or,
iii) Ombudsman or his deputy in cases of
offenses cognizable by the
Sandiganbayan in the exercise of
original jurisdiction.
Note: The above persons shall act on the
resolution within 10 days from their receipt
thereof and shall immediately inform the parties
of such action.
If the Investigating Prosecutor Finds no
Cause to Hold Respondent for Trial
He shall recommend the dismissal of the
complaint.
A complaint or information may be dismissed by
an investigating prosecutor only with the prior
written authority or approval of the Provincial or
City Prosecutor; or Chief State Prosecutor; or
Remedial Law
the Ombudsman or his deputy.(Riano, Criminal
Procedure, 2011 Edition, p. 179).
When the Recommendation to Dismiss the
Complaint is Disapproved
Where the investigating prosecutor recommends
the dismissal of the complaint but his
recommendation is disapproved by the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on
the ground that a probable cause exists, the
latter may:
1. by himself, file the information against the
respondent; or,
2. direct another assistant prosecutor or state
prosecutor to do so without conducting
another preliminary investigation. (Riano,
Criminal Procedure, 2011 Edition, pp. 177-180).
7.D.4 Resolution of the Investigating
Prosecutor
Initial steps in Preliminary Investigation
It is the filing of the complaint with the
investigating prosecutor that starts the
preliminary investigation process (Riano, Criminal
Procedure, 2011 Edition, p. 174).
Documents Accompanying the Complaint
1) The affidavits of the complainant;
2) The affidavits of his witnesses; and
3) Other supporting documents that would
establish probable cause (Rule 112, Sec. 3[a]).
The affidavits of the complainant shall be
subscribed and sworn to before:
1. Any prosecutor;
2. Any government official authorized to
administer oaths; or
3.In the absence or unavailability of the
abovementioned, a notary public.
The officer or notary public before whome the
affidavits were subscribed and sworn to must
certify that he personally examined the affiants
and that he is satisfied that they voluntarily
Bar Operations C ommissions 379
 Purple Notes
Remedial Law
executed and understood their affidavits (Rule
112, Sec. 3[a]).
Resolution of the Investigating Prosecutor
Within 10 days from the termination of the
investigation, the investigating prosecutor shall
determine whether or not there is sufficient
ground to hold the respondent for trial (Rule 112,
Sec. 3[f]).
Afterwards, if the investigating officer finds
cause to hold the respondent for trial, he shall
prepare the resolution and information.
Otherwise, he shall recommend the dismissal of
the complaint (Rule 112, Sec. 4).
The information shall contain a certification by
the investigating officer under oath in which he
shall certify the following:
1) That he, or as shown by the record, an
authorized officer, has personally examined
the complainant and his witnesses;
2) That there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
3) That the accused was informed of the
complaint and of the evidence submitted
against him; and
4) That he was given an opportunity to submit
controverting evidence (Rule 112, Sec. 4).
Within 5 days from the issuance of his
resolution, the investigating prosecutor shall
forward the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to
the Ombudsman or his deputy by the
Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution
within ten days from their receipt thereof and
shall immediately inform the parties of such
action (Rule 112, Sec. 4).
The resolution of the investigating prosecutor is
merely recommendatory. No complaint or
information may be filed or dismissed by an
investigating prosecutor without the prior
written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the
Ombudsman or his deputy (Rule 112).
380 Center for Legal Education and Research
Q: The investigating prosecutor initially
recommended the dismissal of the case for
there was no probable cause, however the
City Prosecutor disapproved and filed an
information before the MTC thereby
overturning the former’s resolution. The
MTC judge, in issuing warrant of arrest,
ordered that the initial resolution should
form part of the record, however the City
Prosecutor stated that the same cannot be
released to the parties and/or their
counsels, thus, only resolutions approved
by the Provincial/City Prosecutor for
promulgation and release to the parties
shall be made known to the parties and/or
their counsel. The trial court however
insisted. Is the trial court correct?
A: No. The conduct of a preliminary
investigation is primarily an executive
function. Thus, the courts must consider the
rules of procedure of the Department of Justice
in conducting preliminary investigations
whenever the actions of a public prosecutor is
put in question. In view of the foregoing, the
Court finds that respondent erred in insisting on
the production of the Jarder Resolution when all
other pertinent documents regarding the
preliminary investigation have been submitted to
his court, and in going so far as to motu proprio
initiating a proceeding for contempt against
complainant(City Prosecutor Armando P. Abanado
vs. Judge Abraham A. Bayona, A.M. No. MTJ-12-
1804, July 30, 2012).
Remedy of the Aggrieved Party After the
Investigating Prosecutor Finds Cause to
Hold him for Trial
If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare
the resolution and information where he shall
certify under oath that: (ERIO)
1. He or an authorized officer personally
Examined the complainant and his
witnesses;
2. There is Reasonable ground to believe that a
crime has been committed and the accused
is probably guilty thereof;
 Purple Notes
3. The accused was Informed of the complaint
and the evidence against him;
4. The accused was given an Opportunity to
submit controverting evidence;
Otherwise, the investigating prosecutor shall
recommend the dismissal of the case.(Riano,
Criminal Procedure, 2011 Edition, pp. 178-179).
Note:No complaint or information may be filed
or dismissed by an investigating prosecutor
without the prior written authority or approval of
the provincial or city prosecutor or the
Ombudsman or his deputy (Rules of Court, Rule
112, Sec. 4).
7.D.5 Review of the Resolution
Appeal to the Secretary of Justice
Remedy of the Aggrieved Party After the
Investigating Prosecutor Finds Cause to
Hold him for Trial
An aggrieved party may appeal by filing a
verified petition for review with the Secretary of
Justice, and by furnishing copies thereof to the
adverse party and the Prosecution Office issuing
the appealed resolution.
The appeal shall be taken within 15 days from
receipt of the resolution, or of the denial of the
motion for reconsideration/reinvestigation if one
has been filed within 15 days from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed.
Unless the Secretary directs otherwise, the
appeal shall NOT stay the filing of the
corresponding information in court on the basis
of the finding of probable cause in the appealed
resolution.(Riano, Criminal Procedure, 2011 Edition,
pp. 180-183).
 The determination of probable cause is,
under our criminal justice system, an
executive function that the courts cannot
interfere with in the absence of grave
abuse of discretion (Salapuddin vs. Court of
Appeals, G.R. No. 184681, February 25, 2013).
 Such function is lodged, at the first
instance, with the public prosecutor who
Remedial Law
conducted the preliminary investigation,
and ultimately, with the Secretary of Justice
(Unilever Philippines, Inc. vs. Tan, GR No.
179367, January 29, 2014).
Review power of the Secretary of
Justice(DOJ Circular No. 70, July 3, 2000)
By implication, the rule authorized the parties
concerned to file a petition to the Secretary of
Justice for the review of the resolution (Public
Utilities Dept., Olongapo City vs. Guingona, Jr., G.R.
No. 130399, September 20, 2001).
Duties of the Secretary of Justice after
the aggrieved party has filed an appeal
regarding the resolution of the
investigating prosecutor: (ORA-FiD)
1. Order the reinvestigation of the case;
2. Reverse, modify or affirm the appealed
resolution;
3. Act on a motion for reconsideration;
4. File the information without conducting
another preliminary investigation; or,
5. Dismiss the information filed by the
prosecutor (Community Rural Bank of Guimba
vs. Talavera, A.M. No. RTJ-05-1909, April 6,
2005).
Instances when Appeal shall NOT be Given
Due Course
The following are the instances: (FilAr)
1) If an information has been filed pursuant
tothe appealed resolution; and,
2) The accused has already been arraigned.
General Rule: An appeal shall not bar the filing
of the corresponding information.
Exception:Whenotherwise directed by the
Secretary of Justice.
 In case appeal to the Secretary of Justice
was denied and so with the motion for
reconsideration, a petition for certiorari with
the Court of Appeals on the ground of grave
abuse of discretion is the next remedy
(FilandamusPhrama, Inc. vs. CA, G.R. No.
132422, March 30, 2004).
 It is not part of the trial of the criminal
action in court. Nor is its record part of the
records of the case in the RTC. The
Bar Operations C ommissions 381
 Purple Notes
Remedial Law
dismissal of the case by the investigator will
not bar the filing of another complant for
the same offense, but if re-filed, the
accused is entitled to another preliminary
investigation (US vs. Marfori, G.R. No. 10905,
December 9, 1916).
How can the Resolution of the Secretary of
Justice be Reviewed:
The resolution can be reviewed in two ways:
1. By filing Petition for Certiorari under
Rule 65 of the ROC. The Court of Appeals is
clothed with the jurisdiction to review the
resolution issued by the Secretary of Justice
through a petition for certiorari under Rule
65 of the Rules of Court, solely on the
ground that the Secretary committed grave
abuse of discretion amounting to lack of
jurisdiction (Argovan vs. San Miguel Corporation,
G.R. No. 188767, , July 24, 2013);
 The petition for Review under Rule 43
applied to all appeals to the CA from
quasi-judicial agencies or bodies,
particularly those listed in Section 1 of
Rule 43. However, the Secretary of
Justice, in the review of the findings of
probable cause by the investigating
public prosecutor, was NOT exercising a
quasi-judicial function, but performing
an executive function. Moreover, the
courts could intervene in the
determination of probable cause only
through the special civil action for
certiorari under Rule 65 of the Rules of
Court, NOT by appeal through the
petition for review under Rule 43. Thus,
the CA could not reverse or undo the
findings and conclusions on probable
cause by the Secretary of Justice
EXCEPT upon clear demonstration of
grave abuse of discretion amounting to
lack or excess of jurisdiction committed
by the Secretary of Justice (Caterpillar,
Inc. vs. Samson, G.R. No. 205972,
November 9, 2016).
2. By filing an appeal before the Office of the
President and the decision of the latter may
be appealed before the CA pursuant to Rule
43 of the Rules ofCourt.
382 Center for Legal Education and Research
Given rule if the Secretary of Justice
Reverses or Modifies the Resolution of the
Prosecutor upon Filing of Petition by the
Proper Party?
He shall direct the prosecutor concerned either
to file the corresponding information without
conducting another preliminary investigation, or
to dismiss or move for dismissal of the
complaint or information with notice to the
parties. (Sec. 4, Rule 112, Rules of Court)
Proper Remedy in Assailing the Resolution
of the Secretary of Justice
Petition for certiorari under Rule 65 is the proper
remedy. The rule is that the DOJ is not a quasi-
judicial agency exercising a quasi-judicial
function when it reviews the findings of a public
prosecutor regarding the presence of probable
cause and that its findings are not reviewable by
the Court of Appeals in a petition for review
under Rule 43 of the Rules of Court (Riano,
Criminal Procedure, p. 184, 2011 Edition).
Appeal to the Office of the President
Q: May the resolution of the Secretary of
Justice be appealed in the Office of the
President?
A: Yes. As long as the appeal clearly falls within
the jurisdiction of the Office of the President,
otherwise the appeal shall be dismissed outright
(Riano, Criminal Procedure, p. 188, 2011 Edition).
Note: Memorandum Circular No. 58(30 June
1993) provides:
No appeal from or petition for review of
decisions/orders/resolutions of the Secretary of
Justice on preliminary investigations of criminal
cases shall be entertained by the Office of the
President, EXCEPT those involving offenses
punishable by reclusion perpetua to death
wherein new and material issues are raised
which were not previously presented before the
Department of Justice and were not ruled upon
in the subject decision/order/resolution, in which
case the President may order the Secretary of
Justice to reopen/review the case, provided,
that, the prescription of the offense is not due
to lapse within six (6) months from notice of the
 Purple Notes
questioned resolution/order/decision, and
provided further that, the appeal or petition for
review is filed within thirty (30) days from such
notice.
Henceforth, if an appeal or petition for review
does not clearly fall within the jurisdiction of the
Office of the President, as set forth in the
immediately preceding paragraph, it shall be
dismissed outright and no order shall be issued
requiring the payment of the appeal fee, the
submission of appeal brief/memorandum or the
elevation of the records to the Office of the
President from the Department of Justice.
If it is not readily apparent from the appeal or
petition for review that the case is within the
jurisdiction of the Office of the President, the
appellant/petitioner shall be ordered to prove
the necessary jurisdictional facts, under penalty
of outright dismissal of the appeal or petition,
and no order to pay the appeal fee or to submit
appeal brief/memorandum or to elevate the
records of the case to the Office of the President
shall be issued unless and until the jurisdictional
requirements shall have been satisfactorily
established by the appellant/petitioner.
 As the word "may" in the second paragraph of
Memorandum Circular No. 58 signifies, it is not
mandatory for the President to order the DOJ to
reopen or review [the] case even if it raised
"new and material issues" allegedly not yet
passed upon by the DOJ. Hence, the OP acted
well within its authority in reexamining the
merits of [the] appeal in resolving the motion
for reconsideration (Heirs of Tria vs. Obias, G.R.
No. 175887, November 24, 2010).
In the event of an adverse decision against the
appellant, a verified petition for review may be
taken to the Court of Appeals within 15 days
from notice of the final order of the Office of the
President and following the procedures set forth
under Rule 43 of the Rules of Court.
Proper Remedy of the Aggrieved Party in
Order to Assail the Resolution of the Office
of the President
Remedial Law
The aggrieved party may file an appeal with the
Court of Appeals pursuant to Rule 43. Under
Sec. 1 of Rule 43, the final orders or resolutions
of the Office of the President is appealable to
the Court of Appeals by filing a verified petition
for review following the procedure set by Secs.
5 and 6 of Rule 43.(Rule 43,Sec. 1,)
Appeal from the Resolution of the
Ombudsman(Fabian vs. Desierto G.R. No. 129742,
September 16, 1998)
Involving:
1. Administrative and disciplinary cases – with
the Court of Appeals through Petition for
Review under Rule 43 of Rules of Court.
2. Criminal cases – with the Supreme Court
through extraordinary remedy of Certiorari
under Rule 65 of Rules of Court.
Extent of Authority of the Ombudsman in
the conduct of preliminary investigation
The Ombudsman has primary authority to
investigate and exclusive authority to file and
prosecute Sandiganbayan cases (Ledesma vs. CA,
G.R. No. 161629, July 29, 2005).
The Ombudsman is authorized to take over at
any stage, from any investigatory agency of the
government, the investigation of such cases
(Sec. 15, RA 6770).
 The power to investigate and to prosecute
granted to the Ombudsman is plenary and
unqualified. It pertains to any act or omission
of any public officer or employee when such
act or omission appears to be illegal, unjust,
improper or inefficient. The law does not
make a distinction between cases cognizable
by the Sandiganbayan and those cognizable
by the regular courts (Office of the Ombudsman
vs. Breva, G.R. No. 145938, February 10, 2006).
Q:Who Conducts Preliminary
Investigation in Election Cases?
A: The Commission on Elections is vested with
the power to conduct preliminary
investigations; it may deputize other
prosecuting arms of the government to conduct
preliminary investigation and prosecute
Bar Operations C ommissions 383
 Purple Notes
Remedial Law
offenses (People vs. Basilla, G.R. No. 83938-40,
November 6, 1989).
7.D.6 When Warrant of Arrest may be
Issued (Sec. 5, Rule 112, As Amended by A.M. No.
05-8-26-SC)
By the Regional Trial Court / By the
Municipal Trial Court
a. The procedure for the issuance of a warrant
of arrest by the judge shall be the same as
that of the RTC.
b. However, without waiting for the conclusion
of the preliminary investigation, the judge
may issue a warrant of arrest if he finds after
an examination in writing and under oath of
the complainant and his witnesses in the
form of searching questions and answers,
that a probable cause exists and that there is
a necessity of placing the respondent under
immediate custody in order not to frustrate
the ends of justice.
 It is enough that the judge personally
evaluates the prosecutor‘s report and
supporting documents showing the existence
of probable cause for the indictment and, on
the basis of his evaluation, he finds no
probable cause to disregard the prosecutor‘s
resolution and require the submission of
additional affidavits of witnesses to aid him
in determining its existence (Ocampo vs. Hon.
Abando et al., G.R. No. 176830, February 11,
2014).
―Searching questions and answers‖ means
taking into consideration the purpose of the
preliminary investigation which is whether there
is sufficient ground to engender a well-founded
belief that a crime has been committed and that
the respondent is probably guilty thereof and
should be held for trial; such questions as may
have the tendency to show the commission of
the crime and the perpetrator thereof.(Rule 112,
Sec. 8[b]).
Probable cause
 Probable cause, for the purpose of filing a
criminal information, has been defined as
384 Center for Legal Education and Research
such facts as are sufficient to engender a
well-founded belief that a crime has been
committed and that respondent is probably
guilty thereof. The term does not mean
"actual and positive cause" nor does it
import absolute certainty. It is merely based
on opinion and reasonable belief. Probable
cause does not require an inquiry into
whether there is sufficient evidence to
procure a conviction. It is enough that it is
believed that the act or omission complained
of constitutes the offense charged (Fenequito
vs. Vergara, G.R. No. 172829, July 18, 2012).
Note: The evidence needed is not based on
clear and convincing evidence of guilt, neither
on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence
estabilishing absolute certainty of guilt. It needs
only to rest on evidence showing that more
likely than not a crime has been committed by
the accused (Sps. Balangauan vs. CA, G.R. No.
174350, August 13, 2008).
Instances when Probable Cause needs to
be established
1. When issuing a warrant of arrest or a
commitment order under Secs. 6 and 9, Rule
112;
2. A peace officer or a private person making a
warrantless arrest under Sec. 5(b), Rule 113;
and
3. To determine whether a search warrant shall
be issued under Sec. 4, Rule 126.
When Warrant of Arrest is NOT Necessary
a. If the accused is already under detention
(Rule 112, Sec. 5[c], as amended by AM 05-8-26-
SC);or
b. If the complaint or information was filed
pursuant to a lawful warrantless arrest (Rule
112, Sec. 6, as amended by AM 05-8-26-SC); or
c. If the complaint or information was for an
offense punishable by fine only; or
d. When the case is subject to the Rules on
Summary Procedure, UNLESS he failed to
appear whenever required.
 Purple Notes
Rules in Lawful Warrantless Arrests where
Crime Involved Requires Preliminary
Investigation(Sec. 6, Rule 112, as amended by
A.M. No. 05-8-26-SC)
1. The complaint or information may be filed by
a prosecutor without need of such
investigation provided an inquest has been
conducted in accordance with existing rules.
2. If there is no inquest prosecutor, the
complaint may be filed by the offended party
or a peace officer directly with the proper
court on the basis of the affidavit of the
offended party or arresting officer or person.
Options of Accused Lawfully Arrested
Without Warrant(Sec. 6, Rule 112, As Amended
by A.M. No. 05-8-26-SC)
Before complaint or information is filed:
 The person arrested may ask for a
preliminary investigation in accordance with
this Rule, but he must sign a waiver of the
provision of Art 125 of the Revised Penal
Code, as amended, in the presence of his
counsel.
 Art. 125, RPC - Delay in the delivery of
detained persons to the proper judicial
authorities.
 Notwithstanding the waiver, he may apply
for bail and the investigation must be
terminated within 15 days from its
inception.
After complaint or information is filed without
Preliminary Investigation:
 The accused may, within 5 days from the
time he learns of its filing, ask for a
preliminary investigation with the same right
to adduce evidence in his defense as
provided in this rule.
 Section 7 of Rule 112of the present Rules
gives the accused the right to ask for a
preliminary investigation; but it does not
give him the right to do so after the lapse of
the five-day period. This is in accord with
the intent of the Rules of Criminal Procedure
to make preliminary investigation simple and
speedy (People vs. Gadi, G.R. No. 116623,
March 23, 1995).
Remedial Law
Note: Once a criminal complaint or an
information is filed in court, any disposition or
dismissal of the case or acquittal or conviction of
the accused rests within the jurisdiction,
competence, and discretion of the trial court
(Hipos, Sr. vs. Bay, G.R. Nos. 174813-15, March 17,
2009).
Remedies of the Accused Who Believes
that there is No Probable Cause to Hold
Him for Trial:
1. To file with the trial court a motion to
dismiss on such ground; or,
2. If the warrant of arrest has been issued, the
accused may file a motion to quash the
warrant of arrest.
Records of Preliminary Investigation
General Rule: The Record of Preliminary
Investigation is NOT part of the record of the
case.
Exception: BUT it may be produced in court—
1. upon its own initiative; or
2. on motion of any party, if (a) necessary in
the resolution of the case or any incident
therein, or (b) when it is to be introduced as
evidence in the case. (Rule 112, Sec. 7[b], as
amended by A.M. No. 05-8-26-SC)
3. There is nothing in the DOJ-NPS Manual
requiring the removal of a resolution by an
investigating prosecutor recommending the
dismissal of a criminal complaint after it was
reversed by the provincial, city or chief state
prosecutor. Nonetheless, attaching such a
resolution to an information filed in court is
optional under the aforementioned manual.
The DOJ-NPS Manual states that the
resolution of the investigating prosecutor
should be attached to the information only
"as far as practicable." Thus, such
attachment is not mandatory or required
under the rules (City Prosecutor Abanado vs.
Judge Bayona, A.M. No. MTJ-12-1804, July 30,
2012).
Bar Operations C ommissions 385
 Purple Notes
Remedial Law
7.D.7 Cases NOT Requiring A Preliminary
Investigation nor Covered by the Rule on
Summary Procedure (Rule 112, Sec. 8, As
Amended By A.M. No. 05-8-26-SC)
a. Cases within the exclusive original
jurisdiction of the inferior courts but where
the penalty for the offense is less than 4
years, 2 months and 1 day; or,
b. Not covered by the Rule on Summary
Procedure.
Hence, no preliminary investigation is
conducted, but the case has to be tried in
accordance with the regular procedure in said
inferior courts.
If filed with the Prosecutor – the prosecutor
shall act on the complaint based on the
affidavits and other supporting documents
within 10 days from its filing.
7.D.8 Remedies Once Complaint or
Information is Filed in Court (where there
was no Preliminary Investigation)
1) If from inquest, file a motion for Preliminary
Investigation;
2) If from inquest but in reality no Preliminary
Investigation was conducted (due to fraud,
mistake, etc.), file a motion for preliminary
investigation and show deprivation of right to
preliminary investigation;
3) If warrant of arrest was issued (within 10
days from filing of complaint), whether or
not there was preliminary investigation, file
Motion for Judicial Determination of Probable
Cause with Motion to Quash Warrant;
4) File Petition for Review with Secretary of
Justice;
5) File a Motion for Reinvestigation;
6) File a Petition for Certiorari under Rule 65.
Note: One cannot pursue a motion for
reinvestigation where a motion for preliminary
investigation was already made.
When Evidence on hand ABSOLUTELY
FAILS to Support a Finding of Probable
Cause
386 Center for Legal Education and Research
While the determination of probable cause to
charge a person of a crime is the sole function
of the prosecutor, the trial court may, in the
protection of one's fundamental right to liberty,
dismiss the case if, upon a personal assessment
of the evidence, it finds that the evidence does
not establish probable cause. Although
jurisprudence and procedural rules allow it, a
judge must always proceed with caution in
dismissing cases due to lack of probable cause,
considering the preliminary nature of the
evidence before it. It is only when he or she
finds that the evidence on hand absolutely fails
to support a finding of probable cause that he or
she can dismiss the case. On the other hand, if
a judge finds probable cause, he or she must
not hesitate to proceed with arraignment and
trial in order that justice may be served
(Mendoza vs. People, G.R. No. 197293, April 21,
2014).
Q: If the Prosecutor Files a Motion to
Withdraw the Information and the Trial
Court Denies the Same, Can One Still
Expect the Prosecutor to Effectively
Prosecute the Case?
A:Yes. The role of the fiscal or prosecutor as we
all know is to see that justice is done and not
necessarily to secure the conviction of the
person accused before the Courts. Thus, in spite
of his opinion to the contrary, it is the duty of
the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to
enable the Court to arrive at its own
independent judgment as to whether the
accused should be convicted or acquitted. The
fiscal should not shirk from the responsibility of
appearing for the People of the Philippines even
under such circumstances, much less should he
abandon the prosecution of the case leaving it
to the hands of a private prosecutor for then the
entire proceedings will be null and void. The
least that the fiscal should do is to continue to
appear for the prosecution although he may
turn over the presentation of the evidence to
the private prosecutor, BUT still under his
direction and control(Crespo vs. Mogul, G.R. No. L-
53373, June 30, 1987).
 Purple Notes
Effect if the Motion for Preliminary
Investigation is Filed Beyond the 5-Day
Reglementary Period
It will be considered a prohibited motion and
shall be denied outright before the scheduled
arraignment without need of comment and/or
opposition (A.M. No. 15-06-10-SC, Subheading III,
item no. 2).
When Can the Accused Question the
Regularity or Absence of a Preliminary
Investigation?
An accused who wants to question the regularity
or absence of a preliminary investigation must
do so before he enters his plea (Sec. 26, Rule
114, Rules of Court).
Note: Failure to invoke the right before entering
a plea will amount to a waiver (Riano, Criminal
Procedure, p. 161, 2011 Edition).
Q: Is a motion to quash the proper remedy
if there was no preliminary investigation?
A: No. The absence of a preliminary
investigation is not a ground for a motion to
quash. Such ground is not provided for in Sec. 3
of Rule 117, the provision which enumerates the
grounds for a motion to quash a complaint or
information (Budiongan, Jr. vs. De la Cruz, Jr., G.R.
No. 170288, September 22, 2006).
7.D.9. Inquest
Inquest is the taking of a person into custoday
in order that he may be bound to answer for the
commission of an offense (Rule 113, Sec.1).
When is an Inquest Proceeding Conducted
An inquest proceeding is conducted when a
person is lawfully arrested without a warrant
involving even also an offense which requires a
preliminary investigation. (Rule 112, Sec. 6
Who Conducts an Inquest Proceeding
The inquest is conducted by a public prosecutor
who is assigned inquest duties as an Inquest
Officer and is to discharge his duties, unless
Remedial Law
otherwise directed, only at the police
stations/headquarters of the PNP in order to
expedite the facilitate the disposition of inquest
cases (Sec. 2, Part II, Manual for Prosecutors).
When is the inquest proceeding deemed to
have commenced
The inquest proceedings shall be deemed
commenced from the time the Inquest officer
receives the complaint and referral documents
from the law enforcement authorities. These
documents include the following:
1. Affidavit of arrest;
2. The investigation report;
3. The statements of the complainant and the
witnesses; and
4. Other supporting evidence gathered.Riano,
Criminal Procedure, 2011 Edition, p. 163).
Note: The affidavit of arrest and the statements
or affidavits of the complainant and the
witnesses shall be subscribed and sworn to
before the Inquest Officer by the affiants (Sec. 3,
Part II, Manual for Prosecutors).
7.E. ARREST (Rule 113)
It is the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense (Rule 113, Sec. 1).
Persons Immune from Arrest
The following persons are immune from arrest:
(CoSC-APRed-75)
1. Members of Congress, in all offenses
punishable by not more than 6 years
imprisonment, while Congress is in session;
2. Sovereigns and other chiefs of state,
ambassadors, ministersplenipotentiary,
ministersresident, and charge d‘affaires are
immune from criminal jurisdiction of the
country of their assignment and are,
therefore, immune from arrest (II Hyde,
International Law); and,
3. R.A. No. 75 prohibits the arrest of duly
accredited ambassadors, public ministers of a
foreign country and their duly registered
Bar Operations C ommissions 387
 Purple Notes
Remedial Law
domestics, subject to the principle of
reciprocity (Sec. 7, R.A. No. 75).
When a Person not Formally Arrested but
Merely ―invited‖ for Questioning
If after the officers have determined that a
crime has just been committed by the accused,
the use of the term, ―invited‖ in the affidavit of
arrest is to be construed as an authoritative
command by the officer for the accused to
submit to the custody of the officer. It is,
therefore, an arrest (Pestillos vs. Generoso, G.R.
No. 182601, November 10, 2014).
Q: Can the Court Issue a Warrant of Arrest
against a John Doe?
A:No. Warrants of arrest issued to John Doeare
in the nature of a generalwarrant, one of a
class of writs long proscribed as unconstitutional
and once anthematized as totally subversive of
the liberty to the subject. Clearly violative of the
constitutional injunction that warrants of arrest
should particularly describe the person or
persons to be seized, the warrant must, as
regards its unidentified subjects, be voided
(Pangandaman vs. Casar, G.R. No. L-71782, April 14,
1988).
7.E.1 Arrest; How Made(Rule 113, Sec. 2)
Modes of Effecting Arrest:
a. By an actual restraint of the person to be
arrested; or,
b. By his submission to the custody of the
person making the arrest;
 Violence or unnecessary force shall not be
used.
 Restraint should not be greater than what
is necessary for the accused‘s detention.
 Arrest is not necessary when the accused
voluntarily appears after a complaint in a
criminal action is filed against him and gives
bond for his appearance at any time he may
be called (People vs. Joson, G.R. No. 22366,
October 07, 1924).
388 Center for Legal Education and Research
The person to be arrested need NOT
ACTUALLY be restrained as submission to the
custody of the person making the arrest
already constitutes arrest. It is enough that
there be an intention on the part of the
parties to arrest the other, and the intent on
the part of the other to submit (Ong vs.
People of the Philippines, G.R. No. 197788,
February 29, 2012).
 Remedy for improperly issued warrants:
Quashal of warrant or information (Ilagan vs.
Enrile, G.R. No. L-70748, October 21, 1985).
After implementation of warrant, remedy is
suppression of evidence.
 Where the investigation comes from a
powerful group composed predominantly of
ranking military officers and the designated
interrogation site is a military camp, the
same can be easily taken, not as strictly
voluntary invitation which it purports to be,
but as an authoritative command which one
can only defy at his peril. The requisites of
custodial investigation are applicable even
when a person who has been lawfully
arrested escapes or is rescued (Sanchez vs.
Demetriou, G.R. Nos. 111771-77, November 9,
1993).
Duty of Officer Executing the Warrant (Rule
113, Sec. 3)
1. Arrest the accused; and,
2. Deliver him to the nearest police station or
jail without unnecessary delay.
Additional Duties of Arresting Officer: (In-
War-Con)
1. To inform person arrested of the reason for
the arrest;
2. Show warrant of arrest, if any;
3. Inform the person of his constitutional
rightto remain silent and to counsel and that
any statement he might make could be used
against him.(People vs. Lacap, G.R. No. 78730,
March 08, 1989)
Execution of Warrant (Rule 113, Sec. 4)
Duty of Officer to Whom Warrant was
Assigned for Execution (ExeRep)
 Purple Notes
a. Cause the execution within 10 days from
receipt; and,
b. Within 10 days from the expiration of the
period to execute, to make a report to the
judge who issued the warrant.
Note: In case of failure to execute, the officer
shall state reasons.
Unlike a search warrant, the 10-day period
stated here is not the lifetime or period of
enforceability of the warrant of arrest.
The warrant of arrest does not become functus
officio by the mere lapse of said period and is
enforceable indefinitely until such time as the
arrest of the person or persons named therein
has not been effected.
7.E.2 Arrest WITHOUT Warrant, when
Lawful
General Rule: A warrant of arrest is necessary
before arrest is made.
Note: The Constitutional prohibition against
unreasonable arrests, searches and seizures
refers to those effected without warrant (Malacat
vs. Court of Appeals, G.R. No. 123595, December 12,
1997).
Exceptions: (In-Hot-E-Abs)
1. In flagrante delicto Arrest
a. When, in the peace officer or private
person‘s presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit
an offense (Rule 113, Sec. 5a)
Requisites: (OvPre)
1. the person to be arrested must execute an
overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and,
2.such overt act is done in the presence or
within the view of the arresting officer (Miclat
Jr. vs. People, G.R. No. 176077, August 31,
2011).
Remedial Law
In an arrest in flagrante delicto, mere
―suspicion‖ and ―reliable information are not
justification to effect warrantless arrest.
 An offense is committed in the presence or in
the view of an officer when he sees the
offense although at a distance, or hears the
disturbance or disturbances created thereby
and proceeds at once to the scene of the
crime (People vs. Evaristo, G.R. No. 93828,
December 11, 1992).
 In this type of warrantless arrest, the person
making the arrest himself witnesses the
crime and, hence, has personal knowledge of
the commission of the offense (People vs.
Villareal, G.R. No. 201363, March 18, 2013).
 It is reiterated in People v. Tampis that "any
objection, defect or irregularitly attending an
arrest must be made before the accused
enters his plea on arraignment. Having failed
to move for the quashing of the information
against them before their arraignment,
appellants are now estopped from
questioning the legality of their arrest. Any
irregularity was cured upon their voluntary
submission to the trial court‘s jurisdiction."
Be that as it may, the fact of the matter is
that [Vasquez] was caught in flagrante
delicto of selling illegal drugs to an
undercover police officer in a buy-bust
operation. His arrest, thus, falls within the
ambit of Section 5(a), Rule 113 of the
Revised Rules on Criminal Procedure when
an arrest made without warrant is deemed
lawful. Having established the validity of the
warrantless arrest in this case, the Court
holds that the warrantless seizure of the
illegal drugs from the appellant is likewise
valid (People vs. Vasquez, G.R. No. 200304,
January 15, 2014).
 Hence, where the prosecution proved that
appellant was apprehended after she
exchanged the shabu in her possession for
the marked money of the poseur-buyer, in
the presence of the officers, the arrest was
in flagrante delicto. Having been caught in
flagrante delicto, the police officers were not
only authorized but were even duty-bound
to arrest her even without a warrant (People
vs. Marcelo, G.R. No. 183700, October 13, 2014).
Bar Operations C ommissions 389
 Purple Notes
Remedial Law
 Also, the act walking along the street and
holding something in one‘s hand, even if
they appeared to be dubious, coupled with
his previous criminal charge for the same
offense, are not by themselves sufficient to
incite suspicion of criminal activity or to
create probable cause enough to justify a
warrantless arrest (People vs. Villareal, G.R.
No. 201363, March 18, 2013).
 In arrest in flagrante delicto, the accused is
apprehended at the very moment he is
committing or attempting to commit or has
just committed an offense in the presence
of the arresting officer.The various drug
paraphernalia that the police officers found
and seized in the shanty are, therefore,
admissible in evidence for having proceeded
from a valid search and seizure (Saraum vs.
People, G.R. No. 205472, January 25, 2016).
Q: During a buy-bust operation, John and
Jane were caught holding a drug
paraphernalia in preparation to have a
shabu pot session. Furthermore, the police
recovered from John a lighter, rolled
tissue paper, and aluminum tin foil. Thus,
he was arrested along with Jane. By way
of defense, John denied the commission of
the alleged offense. He testified that on
the date and time in question, he was
passing just by on his way to the house of
his parents-in-law when he was held by
men with firearms. Believing that he had
not committed anything illegal, he resisted
the arrest. He learned of the criminal
charge only when he was brought to the
court.
The RTC rendered a decision finding John
guilty beyond reasonable doubt of the
crime of violation of Section 12, Article II
of R.A. 9165. The CA sustained the
judgment of conviction. Did the lower
courts rule correctly?
A: Yes. John was arrested during the
commission of a crime, which instance does not
require a warrant in accordance with Section 5
(a), Rule 113 of the Revised Rules on Criminal
Procedure. In arrest in flagrante delicto, the
accused is apprehended at the very moment he
390 Center for Legal Education and Research
is committing or attempting to commit or has
just committed an offense in the presence of the
arresting officer. To constitute a valid in
flagrante delicto arrest, two requisites must
concur: (1) the person to be arrested must
execute an overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and (2) such
overt act is done in the presence or within the
view of the arresting officer(Saraum vs. People,
G.R. No. 205472, January 25, 2016).
2.Hot Pursuit Rule
a. When an offense has just been
committed, and the peace officer or
private person has probable cause to
believe based on personal knowledge of
facts or circumstances that the person
to be arrested has committed it (Rule
113, Sec. 5b).
Requisites: (JusPer)
i. An offense has just been committed. The
rule obviously emphasizes the immediacy of
the arrest reckoned form the commission of
the crime.
ii. The person making the arrest has personal
knowledge of the facts indicating that the
person to be arrested committed it.
It must be emphasized that ―personal
knowledge‖ under hot pursuit does
not refer to actual knowledge of the crime
(as opposed to in flagrante delicto) because
the officer did not witness its commission.
The knowledge referred is knowledge that
the crime is committed even if it was not
committed in his presence.
Personal knowledge of facts must be based
on probable cause, which means an actual
belief or reasonable grounds of suspicion.
The grounds are reasonable when the
suspicion that the person to be arrested is
probably guilty of committing the offense is
based on actual facts(Pestilos vs. Generoso,
G.R. No. 182601, November 10, 2014).
 Purple Notes
 Personal knowledge of the crime just
committed does NOT require actual
presence at the scene while a crime was
being committed; it is enough that evidence
of the recent commission of the crime is
patent and the police officer has probable
cause to believe based on personal
knowledge of facts or circumstances that
the person to be arrested has recently
committed the crime (Pestilos vs. Generoso
and People, G.R. No. 182601, November 10,
2014).
Note: In the case of Pestiloscited above, the
facts and circumstances that the police
officers gathered and which they have
personally observed less than one hour from
the time that they have arrived at the scene
of the crime until the time of the arrest of
the petitioners were deemed reasonable to
conclude that the police officers had personal
knowledge of facts or circumstances
justifying petitioners‘ warrantless arrests.
3. ―Escape‖ Rule
a. When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is
serving final judgment or is temporarily
confined while his case is pending, or has
escaped while being transferred from one
confinement to another (Sec. 5 [c], Rule
113).
4. ―Abscond‖ rule
a. An accused released on bail may be re-
arrested without the necessity of a
warrant if he attempts to depart from the
Philippines without permission of the
court where the case is pending (Rule 114,
Sec. 23).
Notes:
Even if the warrantless arrest of an accused
is later proven to be invalid, such fact is
NOT a sufficient cause to set aside a valid
judgment rendered upon a sufficient
complaint after a trial free from error
(People vs. Velasco, G.R. No. 190318, November
27, 2013).
Remedial Law
 The legality of the arrest affects only the
jurisdiction of the court over the PERSON of
the accused. The illegality of the arrest
cannot, in itself, be the basis for acquittal
(People vs. Yau, G.R. No. 2081070, August 20,
2014).It will not negate the validity of the
conviction of the accused.
7.E.3 Methods of Arrest
7.E.3a Arrest by an Officer by Virtue of a
Warrant (Rule 113, Sec. 7)
General Rule:
The arresting officer shall inform the person to
be arrested of: (Cau-F)
1. the cause of the arrest; and,
2. the fact that a warrant has been issued for
his arrest .
Exceptions:
a. When the person to be arrested flees;
b. When the person to be arrested forcibly
resists before the officer has opportunity to
so inform him; or,
c. When the giving of such information will
imperil the arrest.(Riano, Criminal Procedure,
2011 Edition, pp. 209-210).
Q: If a warrant was already issued but at
the time of the arrest, the arresting officer
does not have the warrant on hand, may
an arrest be effected?
A: Yes. The officer need not have the warrant in
his possession at the time of the arrest.
However, after the arrest, if the person arrested
so requires, the warrant shall be shown to him
as soon as practicable. (Rule 113, Sec. 7)
Objects subject to confiscation from the
person arrested (SuFru-CoW)
The following objects shall be confiscated:
1. Objects subject of the offense or used or
intended to be used in the commission of the
crime;
Bar Operations C ommissions 391
 Purple Notes
Remedial Law
2. Objects which are fruits of the crime;
3. Those which might be used by the arrested
person to commit violence or to escape; and
4. Dangerous weapons and those which may
be used as evidence in the case.
7.E.3b Arrest by an Officer Without
Warrant(Rule 113, Sec. 8)
General Rule: The officer shall inform the
person to be arrested of his authority and the
cause of the arrest.
Exceptions: (EnPuEI)
1. The person arrested is engaged in the
commission of an offense;
2. He is pursued immediately after its
commission;
3. He has escaped, flees, or forcibly resists
before the officer has opportunity to so
inform him; or,
4. When the giving of such information will
imperil the arrest.
 Under R.A. No. 4136, or the Land
Transportation and Traffic Code, the
general procedure for dealing with a traffic
violation is not the arrest of the offender,
but the confiscation of the driver‘s license
of the latter. If it were true that [Luz] was
already deemed "arrested" when he was
flagged down for a traffic violation and
while he is waiting for his ticket, then there
would have been no need for him to be
arrested for a second time — after the
police officers allegedly discovered the
drugs — as he was already in their custody.
The Court, however, cautions that the
ruling does not imply that there can be no
arrest for a traffic violation. When there is
an intent on the part of the police officer to
deprive the motorist of his liberty, or to
take the latter into custody, the former may
be deemed to have arrested the motorist
(Luz vs. People, G.R. No. 197788,February 29,
2012).
392 Center for Legal Education and Research
Additional Instances when an Officer may
Arrest without a Warrant
1. Evasion of service of sentence by prisoner -
When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment
or temporarily confined while his case is
pending, or has escaped while being
transferred (Rule 113, Sec. 5[2]);
2. Where a person who has been lawfully
arrested escapes or is rescued (Rule 113, Sec.
13);
3. By the bondsman for the purpose of
surrendering the accused (Rule 114, Sec. 23);
4. Where the accused out on bail attempts to
leave the country without permission of the
court (Rule 114, Sec. 23); and
5. Buy-bust Operation - A buy-bust operation is
a form of entrapment, in which the violator is
caught in flagrante delicto and the police
officers conducting the operation are not
only authorized, but dutybound, to
apprehend the violator and to search him for
anything that may have been part of or used
in the commission of the crime.
Period for Officers to Deliver the Person
Detained under Art. 125 of the RPC
The person must be delivered to the judicial
authorities within the period specified in Art.
125 (Delay in the delivery of detained persons
to the proper judicial authorities):
1. 12 hours - Light penalties
2. 18 hours - Correctional penalties
3. 36 hours - Afflictive or capital penalties
Note: The accused should be brought to the
prosecutor for inquest proceedings wherein
existence of probable cause will be determined.
Then the judge shall issue a commitment order
(order issued by the judge when the person
charged with a crime is already arrested or
detained) and not a warrant.
7.E.3c Arrest by Private Person(Rule 113,
Sec. 9)
Citizen’s arrest – arrest effected by a private
person.
 Purple Notes
General Rule:
The private person shall inform the person to be
arrested of the: (InCau)
1. intention to arrest him; and
2. the cause of the arrest.
Exceptions: (EnPuEI)
1. The person arrested is engaged in the
commission of an offense;
2. He is pursued immediately after its
commission;
3. He has escaped, flees, or forcibly resists
before the officer has opportunity to so
inform him; or,
4. When the giving of such information will
imperil the arrest.(Rule 113, Sec. 5.)
7.E.4 Requisites of a Valid Warrant of
Arrest (Pro-DExDe)
1. it must be issued upon "probable cause";
2. probable cause must be determined
personally by the judge;
3. such judge must examine under oath or
affirmation the complainant and the
witnesses he may produce; and,
4. the warrant must particularly describe the
place to be searched and the persons or
things to be seized (People vs. Chua, G.R. No.
149878, July 1, 2003)
Note:A warrant of arrest has no expiry date. It
remains valid until arrest is effected or warrant
is lifted (Manangan vs. CFI, G.R. No. 82760, Aug. 30,
1990).
7.E.5 Determination of Probable Cause for
Issuance of Warrant of Arrest
Upon filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the
accused after conducting the required
proceedings. (Section 6 (a), Rule 112).
 The judge is not required to personally
examine the complainant and his witnesses.
(People vs. Inting, G.R. No. 88919, July 25,
Remedial Law
1990; Ho vs. People G.R. No. 106632, October
9, 1997)
 If the judge conducting the preliminary
investigation is satisfied after an
examination in writing and under oath of
the complainant and his witnesses in the
form of searching questions and answers,
that a probable cause exists and that there
is a necessity of placing the respondent
under immediate custody in order not to
frustrate the ends of justice, he shall issue a
warrant of arrest. (Section 6 (b), Rule 112)
Here, the Judge conducting the preliminary
investigation should follow the above
procedures in order to be satisfied on the
necessity in issuing the warrant.(Lumbos vs.
Judge Baliguat, A.M. No. MTJ-06-1641, July 27,
2006).
Time of Making Arrest(Rule 113, Sec. 6)
An arrest may be made on any day and at any
time of the day or night.
Officer may Summon Assistance (Rule 113,
Sec. 10)
Every person so summoned shall assist the
officer in effecting the arrest when he can
render assistance without detriment to himself.
Note: The duty of the person summoned does
not arise when rendering assistance would
cause harm to himself.
Right of Officer to Break Into Building or
Enclosure (Rule 113, Sec. 11)
Requisites: (BAu-Ref)
1. That the person to be arrested is or is
reasonably believed to be inthebuilding or
enclosure;
2. That the officer announced his authority and
purpose; AND,
3. That the officer has been refused admittance
thereto.
Bar Operations C ommissions 393
 Purple Notes
Remedial Law
Right to Break Out from Building or committed and that the latter is the one to have
Enclosure(Rule 113, Sec. 12) committed it.

Requisites: (En-Lib)  The judge‘s determination of probable cause

a. An officer has entered the building or
enclosure in accordance with Sec. 11 of Rule
113 above; and,
b. Breaking out from the building or enclosure
is necessary to liberate himself.
Note: The right to break into and out of a
building is NOT extended to a private person
even if his purpose is to make an arrest.
Arrest After Escape or Rescue(Rule 113, Sec.
13)
is made to determine whether a search
warrant or warrant of arrest should be
issued on the finding that a crime has been
committed and that evidence corresponding
thereto is in the place to be searched or that
the accused should be put in custody for
being the likely perpetrator of the
crime.(Riano, Criminal Procedure, 2011 Edition,
pp. 202-208).
Difference between Determination of
Probable Cause by a Fiscal and Determinal
of Probable Cause by a Judge:

Any person may immediately pursue or retake, DETERMINATION OF DETERMINATION OF

without a warrant at any time and in any place PROBABLE CAUSE BY
within the Philippines, a person who escapes or A FISCAL
is rescued. The Constitutional
The escapee must have been lawfully arrested. requirements of having
affidavits and
confirmation are not
Right of Attorney or Relative to Visit mandatory with fiscals.
Person Arrested (Rule 113, Sec. 14)
It must be made at the request of the person
arrested or of another acting in his behalf. Fiscal‘s preliminary
determination of
Scope of the Right probable cause is only
recommendatory and
1. To visit; and, still subject to the
review of the judge.
2. To confer privately with such person.
The fiscal‘s probable
cause may be reviewed
Who is Entitled to this Right? and changed by the
judge reviewing the
1. Any member of the Philippine bar; or case.
2. A relative of the person arrested, subject to
reasonable regulations.
Time of Visit
Any hour of the day or night.
Probable Cause of Fiscal vs. Probable
Cause of Judge (Riano, Criminal Procedure, 2011 Edition, pp. 202-
208).
The fiscal‘s determination of probable cause is
made during the preliminary investigation and is Q: What is meant by probable cause in
for the purpose of determining whether a connection with the issuance of a warrant
criminal action should be brought against the of arrest?
respondent under a belief that a crime has been
PROBABLE CAUSE BY
A JUDGE
Judge should personally
examine under
oath/affirmation the
complainant and the
witnesses may produce
(Section 2, Article III,
1987 Philippine
Constitution)
The question of whether
―probable cause‖ exists
or not depends upon the
judgment and discretion
of the judge issuing the
warrant.
The determination of
probable cause by the
judge is final and
conclusive.
Also, judges may not
issue a warrant of arrest
without a
recommendation for bail
and the amount thereof
indicated in the warrant
itself.

394 Center for Legal Education and Research

 Purple Notes
A: Probable cause for the issuance of a warrant
of arrest is the existence of such facts and
circumstances that would lead a reasonably
discreet and prudent person to believe that an
offense has been committed by the person
sought to be arrested (Ho vs. People, G.R. No.
106632, October 9, 1997).
Q: May the accused file a motion for
judicial determination of probable cause?
A: No. A motion for judicial determination of
probable cause is a prohibited motion and shall
be denied outright before the scheduled
arraignment without need of comment and/or
opposition (A.M. No. 15-06-10-SC, Subheading III,
Item No. 2).
7.F. BAIL (Rule 114)
7.F.1 Nature of Right to Bail
 The right to bail is a constitutional right.
The right to bail springs from the
presumption of innocence accorded to
every accused upon whom should not be
inflicted incarceration at the outset, since
after the trial, he would be entitled to
acquittal, unless guilt be established
beyond reasonable doubt (Paderanga vs.
Court of Appeals, G.R. No. 115407, August 28,
1995).
 This presumption of innocence is rooted in
the guarantee of due process, and is
safeguarded by the constitutional right to
be released on bail, and further binds the
court to wait until after trial to impose any
punishment on the accused (Enrile vs.
Sandiganbayan [Third Division], G.R. No.
213847, August 18, 2015).
Bail is not intended to cover the civil liability of
the accused in the same criminal case.
However, it may be applied to the payment of
fines and costs while the excess, if any, shall be
returned to the accused or to whoever made the
deposit (Rule 114, Sec. 14).
It is the security given for the release of a
person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance
before any court as required under the
Remedial Law
conditions specified by the rule. (Rule 114, Sec.
1).
Q: What is the purpose of bail?
A: To relieve an accused from the rigors of
imprisonment until his conviction and secure his
appearance at the trial(Almeda vs. Villaluz, etc., et
al., L-31665, August 6, 1975).
Q: Can the right to bail be waived?
A: The right to bail is another of the
constitutional rights which can be waived. It is a
right which is personal to the accused and
whose waiver would not be contrary to law,
public order, public policy, morals or good
customs, or prejudicial to a third person with a
right recognized by law (People vs. Donato, G.R.
No. 79269, June 05, 1991).
Conditions of the bail; requirements(Rule
114, Sec. 2)
All kinds of bail are subject to the following
conditions:
1. Effectivity – Effective upon approval, and
shall remain in force at all stages of the case
until promulgation of the judgment of the
Regional Trial Court, irrespective of whether
the case was originally filed in or appealed
to it, UNLESS cancelled.
2. Appearance – The accused shall appear
before the proper court whenever required
by the court or these Rules.
3. Trial in absentia – The failure of the
accused to appear at the trial without
justification and despite due notice shall be
deemed a waiver of his right to be present
thereat. In such case, the trial may proceed
in absentia.
4. Duty of bondsman – The bondsman shall
surrender the accused to the court for
execution of the final judgment.(Rule 114,
Sec. 2)
5. Original papers – These shall state the:
a. Full name of the accused;
b. Address of the accused;
c. Amount of the undertaking;
d. Conditions required;
Bar Operations C ommissions 395
 Purple Notes
Remedial Law
e. Photographs (passport size) taken
within the last 6 months showing the
face, left and right profiles of the
accused which must be attached to the
bail.
 A court cannot entertain an accused‘s
motion or petition for bail unless he is in the
custody of law (Dinapol vs. Baldado, Adm. Mat.
No. RTJ-92-898, August 05, 1993).
Effects of Failure to Appear at Trial (Rule
114, Sec. 2[c]).
Failure of the accused to appear at the trial
without justification despite due notice shall be
deemed a waiver of his right to be present and
the trial may proceed in absentia.
Court cannot Require Arraignment before
the Grant of Bail
The grant of bail should not be conditioned
upon the prior arraignment of the accused. In
cases where bail is authorized, bail should be
granted before arraignment; otherwise, the
accused will be precluded from filing a motion to
quash which is to be done before arraignment.
If the information is quashed and the case is
dismissed, there would be no need for the
arraignment of the accused.
 To condition the grant of bail on his
arraignment would be to place him in a
position where he has to choose between
(1) filing a motion to quash and thus delay
his release until his motion can be resolved
because prior to its resolution, he cannot be
arraigned; and, (2) foregoing the filing of a
motion to quash so that he can be arraigned
at once and thereafter be released on bail.
These scenarios undermine the accused‘s
constitutional right not to be put on trial
except upon a valid complaint or information
sufficient to charge him with a crime and his
right to bail (Lavides vs. Court of Appeals, G.R.
No. 129670,February 01, 2000).
No Release or Transfer except on Court
Order (Rule 114, Sec. 3)
396 Center for Legal Education and Research
General Rule: No person under detention by
legal process shall be released or transferred.
Exceptions: (OrBa)
 When ordered by the court; or
 When he is admitted to bail.
Rules on Availability of Bail (Rule 114, Sec. 7)
Regardless of the stage of the criminal
prosecution, no bail shall be allowed if the
accused is charged with a capital offense or an
offense punishable by reclusion perpetua and
the evidence of guilt is strong.
 Whether bail is a matter of right or
discretion, and even if no charge has yet
been filed in court against a respondent-
suspect-detainee, reasonable notice of
hearing is required to be given to the
prosecutor, or at least his recommendation
must be sought (Prov. Prosecutor Floresca vs.
Judge Ubiadas, A.M. No. RTJ-03-1774, May 27,
2004).
7.F.2 When Bail is a Matter of Right (Rule
114, Sec. 4)
1. Before or after conviction by the MeTC,
MTC, MTC in Cities or Municipal Circuit Trial
Court; and,
2. Before conviction by the Regional Trial
Court.
3. Bail is a matter of right even prior to
conviction for an offense punishable by
death, reclusion perpetua , or life
imprisonment when evidence of guilt is not
strong(Enrile vs. Sandiganbayan,G.R. No.
213847, August 18, 2015).
Exception: Where the offense is punishable by
death, reclusion perpetua or life imprisonment
AND the evidence of guilt is strong(Rule 114, Sec.
7).
Note: The right to bail shall NOT be impaired
even when the privilege of the writ of habeas
corpus is suspended (Sec. 13, Art. III,
Constitution).
 Purple Notes
 The right to bail, embodied in the
Constitution, is not available to military
personnel or officer charged with a
violation of the Articles of War (Aswat vs.
Galido, G.R. No. 88381-82, November 21,
1991).
Q: If the initial bail of the accused was
forfeited for his failure to appear during
trial, may the court reject his application
for new bail when bail is a matter of right?
A: No. Bail before conviction is a constitutional
right of an accused, except in prosecutions for
capital offenses where the proof of guilt is
strong. Other than this, the Constitution makes
no exceptions. The existence of high degree of
probability that the defendant will abscond
confers upon the court no greater discretion
than to intend to assure the presence of the
defendant when it is wanted, such amount to be
subject, of course, to the other provision of the
same section and paragraph cited, that
excessive bail shall not be required. (Sy Guan vs.
Amparo, G.R. No. L-1771, December 4, 1947)
Q: What is the effect of bail, as a matter of
right, to Prosecution?
A: Before conviction, bail is a matter of right for
all offenses punishable by lower than reclusion
perpetua, as to which the prosecution does not
have the right to oppose nor to present
evidence for its denial. (People vs. Donato,G.R. No.
79269, June 05, 1991)
7.F.3 When Bail is Discretionary (Rule 114,
Sec. 5)
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment
 Admission to bail as a matter of discretion
presupposes the exercise thereof in
accordance with law and guided by the
applicable legal principles. The prosecution
must first be accorded an opportunity to
present evidence because by the very
nature of deciding applications for bail, it is
on the basis of such evidence that judicial
discretion is weighed against in determining
whether the guilt of the accused is strong.
Remedial Law
In other words, discretion must be
exercised regularly, legally and within the
confines of procedural due process, that is,
after the evaluation of the evidence
submitted by the prosecution. Any order
issued in the absence thereof is not a
product of sound judicial discretion but of
whim and caprice and outright arbitrariness
(Prov. Prosecutor Floresca vs. Judge Ubiadas,
A.M. No. RTJ-03-1774, May 27, 2004, citing
A.M. No. RTJ-01-1633, June 19, 2001).
General Rule: The application for bail may be
filed and acted upon by the trial court despite
the filing of a notice of appeal, provided it has
not transmitted the original record to the
appellate court.
Exception: If the decision of the RTC
convicting the accused changed the nature of
the offense from non-bailable to bailable, in
which case, the application can only be filed
with and resolved by the appellate court(Rule
114, Sec. 5).
When Application for Bail AFTER
CONVICTION by the RTC shall be Denied:
1. If the penalty imposed is death, reclusion
perpetua or life imprisonment, bail should
be denied since the conviction indicates
strong evidence of guilt based on proof
beyond reasonable doubt (People vs. Nitcha,
G.R. No. 113517, January 19, 1995).
2. Even if the penalty imposed by the trial
court is not any of the above but merely
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail
already allowed shall be cancelled, if the
prosecution shows the following or other
similar circumstances:
a. That the accused is a recidivist, quasi-
recidivist or habitual delinquent or
committed a crime aggravated by the
circumstances of reiteracion.
b. That the accused previously escaped from
legal confinement, evaded his sentence or
violated the conditions of bail without
valid justification.
Bar Operations C ommissions 397
 Purple Notes
Remedial Law
c. That the accused has committed the
offense while on probation, parole or
under conditional pardon.
d. Circumstance of the accused or his case
indicates the probability of flight if
released on bail.
e. Undue risk of commission of another
crime by the accused during pendency of
appeal. (Leviste vs. Court of Appeals, G.R.
No. 189122, March 17, 2010)
7.F.4 Hearing of application for bail in
capital offenses.
Court that may act upon the Application
for Bail
The trial court– despite the filing of a notice of
appeal, UNLESS it has transmitted the original
record to the appellate court. (applies to prior
item, subclause ―2.a‖)
The appellate court – if from the decision of
the trial court, conviction of the accused
changed the nature of the offense from non-
bailable to bailable. (applies to prior item,
subclause ―2.c‖)
Note: Applications for bail in cases where the
grant of bail is a matter of discretion, or where
the accused seeks to be released on
recognizance, can ONLY be filed in the court
where the case is pending on trial or on appeal
(A.M. No. 05-8-26-SC).
1. After conviction by the RTC imposing a
penalty of imprisonment exceeding 6 years
but not more than 20 years and any of the
circumstance enumerated above and other
similar circumstance is present and proved,
no bail shall be granted (Rule 114, Sec. 5).
2. After judgment has become final, no bail
shall be allowed unless accused applied for
probation before commencing to serve
sentence or penalty and the offense is within
the purview of probation law(Rule 114, Sec.
25).
Capital Offense is an offense which, under the
law existing at the time of its commission and of
398 Center for Legal Education and Research
the application for admission to bail, may be
punished with death (Rule 114, Sec. 7).
Non-bailable Offense (Rule 114, Sec. 7)
When evidence of guilt is strong, no person
charge with a capital offense or an offense
punishable by reclusion perpetua or life
imprisonment shall be admitted to bail.
Burden of Proof in Bail Application (Rule
114, Sec. 8)
The prosecution has the burden of showing
that evidence of guilt is strong at the hearing of
an application for bail filed by a person who is in
custody for the commission of an offense
punishable by death, reclusion perpetua, or life
imprisonment.
Reason: Bail is a matter of right.
The hearing should be summary or otherwise, in
the discretion of the court, but the right of the
prosecution to control the quantum of evidence
and the order of presentation of witnesses must
be equated with the purpose of the hearing, i.e.,
to determine the bailability of the accused.
Summary hearing is such brief and speedy
method of receiving and considering the
evidence of guilt as practicable and consistent
with the purpose of the hearing which is merely
to determine the weight of the evidence for
purposes of bail.
As evidence presented under this section are
automatically reproduced at the trial, the
proceedings should be conducted as a regular
trial. But upon motion of either party, the court
may recall any witness for additional
examination when the latter is dead, outside of
the Philippines or otherwise unavailable to
testify.
 A hearing is mandatory in granting bail
whether it is a matter of right or discretion.
It must be stressed that the grant or the
denial of bail in cases where bail is a matter
of discretion, hinges on the issue of
whether or not the evidence of guilt of the
 Purple Notes
accused is strong. The determination of
whether or not the evidence is strong is a
matter of judicial discretion which remains
with the judge. In order for the latter to
properly exercise his discretion, he must
first conduct a hearing to determine
whether the evidence of guilt is strong. In
fact, even in cases where there is no
petition for bail, a hearing should still be
held (Zuno vs. Cabebe, A.M. OCA No. 03-1800-
RTJ, November 26, 2004).
7.F.5 Guidelines in Fixing The Amount Of
Bail(Rule 114, Sec. 9)
1. Excessive bail shall not be required.
2. The remedy of the accused where there is
excessive bail is a Motion for Reduction
of Bail, which is a litigated motion.
Factors for Fixing Reasonable Amount of
Bail (list not exclusive)
1. Financial capacity of the accused to give
bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the
accused;
7. Probability of the accused appearing at the
trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive
from justice when arrested; and
10. Pendency of other cases where the accused
is on bail.
Note: The order fixing the amount of bail is
NOT appealable (Sec. 4, A.M. No. 12-11-2 SC,
Guidelines for Decongesting Jails by Enforcing the
Rights of Accused Persons to Bail and to Speedy Trial,
Effective May 1, 2014).
Forms of Bail: (CorP-DepRec)
a.) Corporate surety;
b.) Property bond;
c.) Cashdeposit; or
d.) Recognizance.
Remedial Law
Corporate Surety (Rule 114, Sec. 10).
This bail furnished by a corporation. Under the
Rules of Court, any domestic or foreign
corporation, which is licensed as a surety and
authorized to act as such, may provide bail by a
bond subscribed jointly by the accused and an
officer of the corporation duly authorized by the
board of directors.
Requisites:
1. Joint affidavit of the accused and duly
authorize d officer of the corporation;
2. Accreditation from the court where the case
is pending;
3. Accreditation from the Supreme Court of the
surety company; and,
4. Submission of picture of the accused (not
earlier than 6 months prior)—at least 3 (Rule
114, Sec. 3).
Effectivity of a Corporate Surety Bond
General Rule: Until termination of the case;
Exception: When the surety corporation
cancels it for non-payment of premium.
Property bond(Rule 114, Sec. 11)
It is an undertaking constituted as lien on the
real property given as security for the amount of
the bail.
 When there is no showing that the
bondsman is the true owner of the land
offered as bond, the court may properly
refuse to accept the same (Lira, Jr. vs. Hon.
Reyes, 4 C.A. Rep. 614).
The following should be presented in court:
1. Transfer Certificate of Title; and,
2. Tax Declaration.
Note: Property bond need not be the property
of the accused.
Bar Operations C ommissions 399
 Purple Notes
Remedial Law
Qualifications of Sureties in Property Bond
1. Each must be a resident owner of real estate
within the Philippines;
2. Where there is only one surety, his real
estate must be worth at least the amount of
undertaking;
3. If there are two or more sureties, each may
justify in an amount less than that expressed
in the undertaking but the aggregate of the
justified sums must be equivalent to the
whole amount of the bail demanded.
In all cases, every surety must be worth the
amount specified in his own undertaking over
and above all just debts, obligations and
properties exempt from execution.(Sec. 12,
Admin. Circ. No. 12-94, August 16, 1994)
Justification of Sureties
Every surety shall justify by affidavit taken
before the judge that he possesses the
qualification of sureties in property bonds and
describe his property(Rule 114, Sec. 13)
The court may examine the sureties upon oath
concerning their sufficiency in such manner as it
may deem proper.
No bail shall be approved unless the surety is
qualified.
Q: What are the requisites in accepting a
surety bond?
A: Before accepting a surety or bail bond, the
following requisites must be complied with:
1. photographs of the accused,
2. affidavit of justification,‘
3. clearance from this Court,
4. certificate of compliance with Circular No. 66
[19 September 1966] of the Insurance
Commissioner,
5. authority of the agent, and
6. current certificate of authority issued by the
Insurance Commissioner with a financial
statement showing the maximum
underwriting capacity of the surety company
(Mangalindan vs. CA, Adm. Matter No. MTJ-94-
932, July 14, 1995).
400 Center for Legal Education and Research
Deposit of Cash as Bail (Rule 114, Sec. 14)
Who may deposit in cash:
a.) The accused; or
b.) Any person acting in his behalf.
To whom the cash is deposited:
a.) With the nearest Collector of Internal
Revenue;
b.) Provincial, City or Municipal Treasurer; or,
c.) The clerk of court where the case is
pending.
 A judge is not one of those authorized to
receive a deposit of cash bail; nor should
such cash be kept in the judge‘s office,
much less in his own residence (Naui vs.
Mauricio, A.M. No. MTJ-01-1368, October 23,
2003).
Amount of Deposit (Bail)
a) The amount of bail fixed by the court; or,
b) The amount of bail recommended by the
prosecutor or who investigated or filed the
case.
 The bail bond posted for the accused was
in the form of cash deposit which, as
mandated by Rule 114, Sec. 14 shall be
applied to the payment of fine and costs,
and the excess, if any, shall be returned to
the accused or to any person who made
the deposit. The Rule thus treats a cash
bail differently from other bail bonds. A
cash bond may be posted either by the
accused or by any person in his behalf.
When a cash bail is allowed, the two parties
to the transaction are the State and the
defendant. Unlike other bail bonds, the
money may then be used in the payment of
that in which the State is concerned – the
fine and costs. The right of the government
is in the nature of a lien on the money
deposited(Esteban vs. Alhambra, G.R. No.
135012, September 7, 2004).
Recognizance (Rule 114, Sec. 15)
 Purple Notes
Remedial Law
Recognizance is a mode of securing the release 5. When the person in custody or detention is
of any person in custody or detention for the unable to post bail due to abject poverty
commission of an offense who is unable to post (Section 3, R.A. No. 10389).
bail due to abject poverty. (Section 3, R.A. No.
10389 Entitled ―An Act Institutionalizing Recognizance DISTINCTION BETWEEN BAIL BONDAND
as a Mode of Granting the Release of an Indigent RECOGNIZANCE
Person in Custody as an Accused in a Criminal Case
and for other purposes) BAIL BOND RECOGNIZANCE
An obligation under An obligation of record,
The court where the case of such person has seal given by the entered into before some
been filed shall allow the release of the accused accused with one or court or magistrate duly
on recognizance as provided herein, to the more sureties, and authorized to take it, with
custody of a qualified member of the barangay, made payable to the the condition to do some
proper officer with the particular act, the most
city or municipality where the accused resides.
condition to be void usual condition in
upon performance by criminal cases being the
Whenever allowed by the law or the Rules, the the accused of such appearance of the
court may release a person in custody on his acts as he may legally accused for trial.
own recognizance or that of a responsible be required to
person. perform.
Requires the signature Does not require the
Instances When Accused may be Released of the accused for its signature of the accused
on Recognizance validity. for its validity.

1. Where a person has been in custody for a Release without Bail (Rule 114, Sec. 16)
period equal to or more than the minimum
1. When the accused has been in custody for a
of the imposable principal penalty, without
period equal to or more than the possible
application of the Indeterminate Sentence
maximum imprisonment prescribed for the
Law or any modifying circumstance, the
offense charged, without prejudice to the
court, in its discretion, may allow his
continuation of the trial or the proceedings
release on a reduced bail or on his own
on appeal.
recognizance (Rule 114, Sec. 16).
2. When the maximum penalty to which the
2. Where, after judgment of conviction but
accused may be sentenced is destierro, but
before its finality, the accused applies for
only after 30 days of preventive
probation and no bail was filed or he is
imprisonment.
incapable of filing one, the court may allow
his release on recognizance to the custody
7.F.6 Bail When NOT Required (Rule 114, Sec.
of a responsible member of the community 16)
(Rule 114, Sec. 24 in relation to Sec. 7, P.D.
968, Probation System Act, as amended).
Generally, bail is not required when the law or
3. In case of a youthful offender held for
the Rules of Court so provide.
physical and mental examination, trial or
appeal, if unable to furnish bail and under Generally, bail is not required when the law or
the circumstances contemplated in The the Rules of Court so provide.
Child and Youth Welfare Code (Art. 191, P.D.
603, The Child and Youth Welfare Code as 1. Subject to certain exceptions, when the
amended). offense charged is a violation of an
4. When the offense charged is a violation of ordinance, light felony or a criminal offense,
an ordinance, a light felony or a criminal the imposable penalty wherefore does not
offense the imposable penalty for which is exceed 6 months of imprisonment and/or
not higher than 6 months imprisonment fine of Php. 2,000 under R.A. No. 6036;
and/ or Php. 2,000 fine under the 2. Where the accused is released on
circumstances provided in R.A. No. 6036. recognizance;

Bar Operations C ommissions 401

 Purple Notes
Remedial Law
3. In case of youthful offender held for
physical or mental examination, trial or
appeal, if unable to furnish bail and under
the circumstances under P.D. No. 603, as
amended.
4. A person who has been in custody for a
period equal to or more than the possible
maximum imprisonment prescribed for the
offense charged, without prejudice to the
continuation of the trial or the proceedings
on appeal;
5. A person accused of an offense with a
maximum penalty of destrierro shall be
released after 30 days of preventive
imprisonment;
6. In cases filed with the MTC for an offense
punishable by imprisonment of less than 4
years, 2 months and 1 day, and the judge is
satisfied that there is no necessity for
placing the accused under custody, he may
issue the summons instead of warrant of
arrest. Since no arrest is made, bail is not
required.
7.F.7 Increase or Reduction of Bail (Rule
114, Sec. 20)
1. When the amount of bail is increased, the
accused may be committed to custody if he
does not give bail in the increased amount
within a reasonable period.
2. An accused released without bail upon filing
of the complaint or information may, at any
subsequent stage of the proceedings and
whenever a strong showing of guilt appears
to the court, be required to give bail in the
amount fixed or, in lieu thereof, committed
to custody.
3. The guidelines provided for in Section 9,
Rule 114, in fixing the amount of bail are
also applicable in reducing or increasing the
bail previously fixed.
 Where the offense is bailable as a matter of
right, the mere probability that the accused
will escape, or even if he had previously
escaped while under detention, does not
deprive him of his right to bail. The remedy
is to increase the amount of bail, provided
such amount would not be excessive (Sy
402 Center for Legal Education and Research
Guan vs. Ampary, G.R. No. L-1771, December
04, 1947).
Bail, Where Filed (Rule 114, Sec. 17)
Bail in the amount fixed may be filed with
the:(PeAMunDAn)
1. court where the case is pending, or
2. in the absence or unavailability of the judge
thereof, with any regional trial judge,
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
province, city, or municipality.
3. if the accused is arrested in a province, city,
or municipality other than where the case is
pending, bail may also be filed with any
regional trial court of said place, or if no
judge thereof is available, with any
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge
therein.
Note: This is a special jurisdiction of the
MTC/MCTC.
4. where the grant of bail is a matter of
discretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the
case is pending, whether on preliminary
investigation, trial, or on appeal.
5. any person in custody who is not yet
charged in court may apply for bail with any
court in the province, city, or municipality
where he is held.
Q: Can a judge of another city grant a bail
and issue a release order of a person who
was detained in another city?
A: No. On the case at bar, it is noted that no
formal petition or application for bail was filed
by the accused, and even if one was filed, the
Marikina courts could not have properly taken
cognizance of the same since Santos was
detained at Camp Crame in Quezon City. (Ruiz
vs. Beldia, Jr., A.M. No. RTJ-02-1731, February 16,
2005)
 Purple Notes
7.F.8 Forfeiture of Bond (Rule 114, Sec. 21)
If the accused fails to appear in person as
required by the law or the Rules:
1. His bail shall be declared forfeited; and,
2. His bondsmen are given 30 days within
which to produce his principal and to show
cause why no judgment should be rendered
against then on the amount of their bail.
Within the 30-day period, the bondsmen must:
1. Produce the body of their principal or give
the reason for his non-production; and,
2. Explain why the accused did not appear
before the court when first required to do so.
Note: Failing in these requisites, a judgment
shall be rendered against the bondsmen, jointly
and severally, for the amount of bail. The 30-
day period cannot be shortened by the court but
may be extended for good cause shown.
If the bondsmen move for the mitigation of their
liability, the court is required not to reduce or
otherwise mitigate the liability of the bondsmen,
UNLESS the accused has been surrendered or is
acquitted.
 Judgment against the bondsmen cannot be
entered unless such judgment is preceded
by an order of forfeiture and an opportunity
given to the bondsmen to produce the
accused or to adduce satisfactory reason for
their inability to do so (Mendoza vs. Alarma,
G.R. No. 151970, May 07, 2008,).
Aside from forfeiture, when the accused fails to
appear in court despite notice, the court may
issue a bench warrant for his arrest.(Alva vs.
Court of Appeals, G.R. No. 157331, April 12, 2006)
 A bench warrant is defined as a writ
issued directly by a judge to a law
enforcement officer, for the arrest of a
person who has been held in contempt, has
disobeyed a subpoena, or has to appear at
a hearing or trial. Under Sec. 9, Rule 71 of
the Rules of Court, when a person is
released on bail fails to appear on the day
fixed for the hearing, the court may issue
Remedial Law
another order of arrest or may order the
bond for his appearance be forfeited and
confiscated, or both (Magleo vs. De Juan-
Quinagoran, A.M. No. RTJ-12-2336, November
12, 2014).
Cancellation of Bail (Rule 114, Sec. 22)
Cancellation by application
Upon application of the bondsmen, with due
notice to the prosecutor, the bail may be
cancelled: (SurPro)
1. Upon surrender of the accused; or
2. Upon proof of the accused‘s death.
Automatic Cancellation
The bail shall be deemed automatically
cancelled upon: (AcqDis-Ex)
1. Acquittal of the accused;
2. Dismissal of the case; or
3. Execution of the judgment of conviction.
Sec. 5 of Rule 114 allows the cancellation of bail
where the penalty imposed by the trial court is
imprisonment exceeding six (6) years if any of
the grounds in the said section is present as
when the circumstances indicate the probability
of flight.
The court is not authorized to deny or cancel
the bail ex parte. The rule requires ―notice to
the accused‖ (Rule 114, Sec. 5).
In all instances, the cancellation shall be
WITHOUT prejudice to any liability on the bail.
Arrest of Accused Out on Bail (Rule 114, Sec.
23)
An accused released on bail may be re-arrested
without the necessity of a warrant IF he
attempts to depart from the Philippines without
permission of the court where the case is
pending.
Bail after Final Judgment (Rule 114, Sec. 24)
Bar Operations C ommissions 403
 Purple Notes
Remedial Law
General Rule: No bail shall be allowed AFTER
judgment of conviction has become final.
Exception: If the accused applies for probation
BEFORE a judgment of conviction has become
final, he may be allowed temporary liberty under
his bail.
When no bail was filed or the accused is
incapable of filing one, the court may allow his
release on recognizance to the custody of a
responsible member of the community.
7.F.9Application for Bail NOT a Bar to
Objections (Rule 114, Sec. 26)
An application for or admission to bail shall not
bar the accused from:
1. Challenging the validity of his arrest;
2. Challenging the legality of thewarrant issued
therefore; and,
3. Assailing the regularity or questioning the
absence of a preliminary investigation of the
charge against him.
The accused must raise these matters before
entering his plea. The court shall resolve the
matter as early as practicable, but not later than
the start of the trial of the case.
Application for Bail NOT a Waiver of Right
to Preliminary Investigation
 There must be clear and convincing proof
that the petitioner had an actual intention to
relinquish her right to question the existence
of probable cause. When the only proof of
intention rests on what a party does, his act
should be so manifestly consistent with, and
indicative of, an intent to voluntarily and
unequivocally relinquish the particular right
that no other explanation of his conduct is
possible (Okabe vs. Hon. Gutierrez, G.R. No.
150185, May 27, 2004).
Hold Departure Order and Bureau of
Immigration Watchlist
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts
to depart from the Philippines without
404 Center for Legal Education and Research
permission of the court where the case is
pending.
A respondent in a criminal complaint may now
be legally barred from leaving the country upon
application with, and issuance of a
precautionary hold departure order (PHDO) by
the courts.(Administrative Matter No. 18-07-05-SC)
Bail in Extradition Cases (Govt. of Hong
Kong Special Administrative Region vs. Olalia,
Jr., G.R. No. 153675, April 19, 2007)
1. An extradition proceeding, while ostensibly
administrative, bears all earmarks of a
criminal process.
2. A potential extraditee may be subjected to
arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding
state following the proceedings.
3. "Temporary detention" may be a necessary
step in the process of extradition, but the
length of time of the detention should be
reasonable.
4. While our extradition law does not provide
for the grant of bail to an extraditee, there
is no provision prohibiting him/her from
filing a motion for bail, a right to due
process under the constitution.
5. An extradition proceeding being sui generis,
the standard of proof required in
granting/denying bail is showing of clear
and convincing evidence: that which is lower
than proof beyond reasonable doubt but
higher than proof of preponderance of
evidence.
6. A Hold Departure Order (HDO) may be
issued either by the Regional Trial Courts or
by the DOJ.
7. Hold Departure orders issued by the RTC
shall pertain to criminal cases falling within
their exclusive jurisdiction, pursuant to
Supreme Court Circular 39-97.
Note:DOJ Circular No. 41 empowering the
Secretary to issue watch list order and HDOs
was declared unconstitutional for being violative
of constitutional right to travel (Genuino vs. De
Lima, G.R. No. 197930, April 18, 2018).
 Purple Notes
Release of Qualified Persons Deprived of
Liberty(OCA Circular No. 91-2020, April 20, 2020)
OCA Circular No. 91-2020 directs first and
second-level court judges to conduct an
inventory of their pending criminal cases,
determine if they have ones covered by the
Guidelines for Decongesting Holding Jails By
Enforcing the Rights of Accused Persons to Bail
and To Speedy Trial (A.M. No. 12-11-02-SC,
March 18, 2014) and comply "without
unnecessary delay, using their sound
discretion." They shall immediately act motu
proprio on cases of PDLs (persons deprived of
liberty) who have been detained for a period at
least equal to the minimum of the penalty for
the offense charged," the circular states.
If warranted, judges may release such detainees
on their own recognizance, on the condition that
the court is assured of their whereabouts and
contact numbers, as well as that of two of their
nearest relatives, during trial. The court
administrator's circular also states that motions
for recognizance and provisional dismissal of
cases leading to a detainee's release "may be
considered urgent and must be immediately set
for hearing‖.
7.G. ARRAIGNMENT AND PLEA (Rule 116)
Arraignmentis the formal mode of
implementing the constitutional right of the
accused to be informed of the nature of the
accusation against him. (People vs. Pangilinan,
G.R. No. 171020, March 14, 2007)
Its purpose is to apprise the accused why he is
being prosecuted by the State. As such, it is an
indispensable requirement of due process and
thus, cannot be regarded lightly or brushed
aside peremptorily. Trial in absentia cannot
proceed since the accused has not been
arraigned.
 The absence of arraignment results in the
nullity of the proceedings before the trial
court (Taglay vs. Daray, G.R. No. 164258, ,
August 22, 2012).
Remedial Law
7.G.1 Arraignment and Plea, Where and
How Made (Rule 116, Sec. 1)
1. Before the court where the complaint or
information was filed or assigned for trial;
2. In open court,by the judge or clerk of court:
a. By furnishing the accused with a copy of
the complaint or information;
b. By reading the complaint or information
in the language or dialect known to the
accused;
c. By asking the accused of his plea.
Note:
The prosecution may call at the trial witnesses
other than those named in the complaint or
information(Rule 116, Sec. 1).
There can be no arraignment in absentia. The
accused must be present at the arraignment
and must personally enter his plea.
Q: Why is reading of the complaint or
information in the language or dialect
known to the accused required?
A: The requirement that the reading be made in
a language or dialect that the accused
understands and knows is a mandatory
requirement, just as the whole of said Section 1
should be strictly followed by trial courts. This
the law affords the accused by way of
implementation of the all-important
constitutional mandate regarding the right of an
accused to be informed of the precise nature of
the accusation leveled at him and is, therefore,
really an avenue for him to be able to hoist the
necessary defense in rebuttal thereof. 14 It is an
integral aspect of the due process clause under
the Constitution (People vs. Estomaca, G.R. Nos.
117485-86, April 22, 1996).
When There are More than One (1)
Complaint/Information
 With exacting certitude, Section 1(a) of Rule
116 requires that the arraignment should be
made in open court by the judge himself or
by the clerk of court by furnishing the
Bar Operations C ommissions 405
 Purple Notes
Remedial Law
accused a copy of the complaint or
information with the list of witnesses stated
therein, then reading the same in the
language or dialect that is known to him,
and asking him what his plea is to the
charge.
The requirement that the reading be made
in a language or dialect that the accused
understands and knows is a mandatory
requirement, just as the whole of said
Section 1 should be strictly followed by trial
courts. It is an integral aspect of the due
process clause under the Constitution.
At threshold, what strikes this Court as
peculiar is that the arraignment appears to
have consisted merely of the bare reading
of the five complaints, synthetically and
cryptically reported in the transcript, thus:
"(Reading the information/complaint to the
accused in Ilonggo/local dialect)." Since
what was supposed to have been read was
stated in the singular, but there were five
criminal complaints against appellant, this
Court is then left to speculate on whether all
five criminal complaints were actually read,
translated or explained to appellant on a
level within his comprehension, considering
his limited education (People vs. Estomaca,
G.R. Nos. 117485-86, April 22, 1996).
Appellant‘s belated arraignment did not
prejudice him. This procedural defect was
cured when his counsel participated in the
trial without raising any objection that his
client had yet to be arraigned. In fact, his
counsel even cross-examined the
prosecution witnesses. His counsel‘s active
participation in the hearings is a clear
indication that he was fully aware of the
charges against him; otherwise, his counsel
would have objected and informed the court
of this blunder. Moreover, no protest was
made when appellant was subsequently
arraigned. The parties did not question the
procedure undertaken by the trial court. It is
only now, after being convicted and
sentenced to two death sentences, that
appellant cries that his constitutional right
has been violated. It is already too late to
406 Center for Legal Education and Research
raise this procedural defect. This Court will
not allow it (People vs. Pangilinan, G.R. No.
171020, March 14, 2007) .
 Where the accused went to trial without
arraignment, but his counsel had the
opportunity to cross-examine the witness of
the prosecution, and after the prosecution
rested, he was arraigned, the procedural
defect was CURED (People vs. Pangilinan, G.R.
No. 171020, March 14, 2007).
Period to Plea
If under Preventive Detention(Rule 116, Sec.
1e)
The case shall be raffled and its records
transmitted to the judge whom the case was
raffled within 3 days from the filing of the
information or complaint.
The accused shall be arraigned within 10 days
from the date of the raffle. The pre-trial
conference of his case shall be held within 10
days after arraignment.
If NOT under Preventive Detention[Rule
116, Sec. 1 (g)]
Arraignment shall be made within 30 days from
the date the court acquires jurisdiction over the
person of the accused (filing of the information,
or from the date the accused appealed before
the justice/judge/court in which the charge is
pending, whichever date last occurs).
This 30-day period is not absolute as the Rules
further states that the time of the pendency of a
motion to quash or for a bill of particulars or
other causes justifying suspension of the
arraignment shall be EXCLUDED in computing
the period.
Failure to observe the rules on arraignment is
reversible error and a judgment of conviction
cannot stand upon an invalid arraignment.
Where the accused was arraigned on the
original, and not on the substantially amended
information, although such defect was pointed
out to the trial court by the defense counsel, the
same constitutes reversible error.
 Purple Notes
Belated Arraignment
 Appellant‘s belated arraignment did not
prejudice him. This procedural defect was
cured when his counsel participated in the
trial without raising any objection that his
client had yet to be arraigned. In fact, his
counsel even cross-examined the
prosecution witnesses. His counsel‘s active
participation in the hearings is a clear
indication that he was fully aware of the
charges against him; otherwise, his counsel
would have objected and informed the court
of this blunder. Moreover, no protest was
made when appellant was subsequently
arraigned. The parties did not question the
procedure undertaken by the trial court. It is
only now, after being convicted and
sentenced to two death sentences, that
appellant cries that his constitutional right
has been violated. It is already too late to
raise this procedural defect. This Court will
not allow it (People vs. Pangilinan, G.R. No.
171020, March 14, 2007) .
Plea is the matter which the accused, on his
arraignment, alleges in answer to the charge
against him.
7.G.2 Kinds of Plea; When a Plea of ―Not
Guilty‖ should be Entered (U-NegCon-
InvAmb)
1. When the accused so pleads (unconditional
plea).
2. When he refuses to plead (negative or
indirect plea).
3. Where in admitting the act charged, he sets
up matters of defense or with a lawful
justification.
4. When he enters a conditional plea of guilt
(conditional plea).
5. Where, after a plea of guilt, he introduces
evidence of self-defense or other exculpatory
circumstances (inverted plea).
6. When the plea is indefinite or ambiguous.
Conditional Plea of Guilty (Negative Plea)
It is one entered that is subject to the proviso
that a certain penalty be imposed upon him. It
is equivalent to a plea of not guilty which
Remedial Law
requires a full-blown trial before judgment may
be rendered.
It is likewise a conditional plea where he pleads
guilty but submits exculpatory evidence and
interposes lawful defenses.
Unconditional Plea of Guilty
An unconditional plea of guilty by the accused
admits the crime and all the attendant
circumstances alleged in the information
including the allegations of conspiracy, and
warrants a judgment of conviction without need
of further evidence.
7.G.3 Plea of Guilty to a LesserOffense(Rule
116, Sec. 2)
1. The lesser offense is necessarily included in
the offense charged;
2. The accused may be allowed to plead at
arraignment, with the consent of the
offended party and prosecutor;
3. In case of failure of the offended party to
appear at arraignment despite due notice,
with the conformity of the trial prosecutor
alone. (Sec. 1[f], Rule 116);
4. After arraignment but before trial, after the
accused withdraws his plea of not guilty.
Note: No amendment of the complaint or
information is necessary (Sec. 4, Circ. 38-98,
effective September 15, 1998).
7.G.4 Court Action when the Accused
Pleads Guilty to a Capital Offense (Rule 116,
Sec. 3)
1. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea.
2. Require the prosecution to prove the guilt
and the precise degree of culpability of the
accused.
3. The accused may present evidence in his
behalf.
Note: As there is prohibition on the imposition
of death penalty (R.A. No. 9346),the requirements
do not apply.
Bar Operations C ommissions 407
 Purple Notes
Remedial Law
Duty of Court When Plea of Guilty to Non-
Capital Offense is Made
The court may receive evidence from the parties
to determine penalty to be imposed. (Rule 116,
Sec. 4)
1. Crimes punishable by reclusion perpetua and
life imprisonment do not need searching
questions.
2. When the facts charged in the information do
not state an offense, no conviction thereon
can be had notwithstanding the defendant‘s
plea of guilty thereon.
7.G.5 Searching Inquiry
 A "searching inquiry," under the Rules,
means more than informing cursorily the
accused that he faces a jail term (because
the accused is aware of that) but so also,
the exact length of imprisonment under the
law and the certainty that he will serve time
at the national penitentiary or a penal
colony. Not infrequently indeed, an accused
pleads guilty in the hope, as we said, of a
lenient treatment, or upon a bad advice or
promises of the authorities or parties of a
lighter penalty should he admit guilt or
express "remorse." It is the duty of the
judge to see to it that he does not labor
under these mistaken impressions (People vs.
Estomaca, supra, citing People vs. Dayot, G.R.
No. 88281, July 20, 1990).
The trial judge must satisfy himself that the
accused, in pleading guilty, (1) is doing so
voluntary, and (2) he, in so doing, is truly
guilty, and (3) that there exists a rational
basis for a finding of guilt based on his
testimony.
 The requirement to conduct a searching
inquiry should not be deemed satisfied in
cases in which it was the defense counsel
who explained the consequences of a
―guilty‖ plea to the accused—the conduct of
a searching inquiry remains the duty of
judges, as they are mandated by the rules
to satisfy themselves that the accused had
not been under coercion or duress;
408 Center for Legal Education and Research
mistaken impressions; or a
misunderstanding of the significance,
effects, and consequences of their guilty
plea (People vs. Baharan, G.R. No. 188314
January 10, 2011).
Q: Is there a concrete rule in conducting a
―searching inquiry?‖
A: No. Although there is no definite and
concrete rule as to how a trial judge may go
about the matter of a proper "searching
inquiry," it would be well for the court, for
instance, to require the accused to fully narrate
the incident that spawned the charges against
him, or by making him reenact the manner in
which he perpetrated the crime, or by causing
him to furnish and explain to the court missing
details of significance. (People vs. Estomaca, G.R.
Nos. 117485-86, April 22, 1996)
Duty of the Judge to Conduct a Searching
Inquiry
In all cases, the judge must convince himself:
1. that the accused is entering the plea of guilty
voluntarily and intelligently.
2. That he is truly guilty;
3. That there exists a rational basis for a finding
of guilt based on his testimony.
7.G.6 Improvident Plea of Guilty
In all cases, the judge must convince himself:
1. that the accused is entering the plea of guilty
voluntarily and intelligently.
2. That he is truly guilty;
3. That there exists a rational basis for a finding
of guilt based on his testimony.
It takes place when the accused does not
understand or does not know fully well his plea.
At any time before the judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty (Rule 116,
Sec. 5).
 Purple Notes
 The withdrawal of a plea of guilty is not a
matter of a strict right to the accused but of
sound discretion to the trial court (People vs.
Lambrino, No. L-10875, April 28, 1958).
 Convictions based on an improvident plea of
guilt are set aside only if such plea is the
sole basis of the judgment. If the trial court
relied on sufficient and credible evidence to
convict the accused, the conviction must be
sustained, because then it is predicated not
merely on the guilty plea of the accused but
on evidence proving his commission of the
offense charged (People vs. Janjalani, G.R. No.
188314, January 10, 2011 citing People vs.
Nadera, G.R. Nos. 131384-87, February 2, 2000).
Instances of Improvident Plea (VUnIns-
OfJu)
1. Plea of guilty was compelled by violence or
intimidation;
2. The accused did not fully understand the
meaning and consequences of his plea;
3. There is insufficient information to sustain
conviction of the offense charged;
4. Information does not charge an offense, any
conviction thereunder being void; or,
5. Court has no jurisdiction
Duty of Court as to the Right to Counsel of
the Accused (Rule 116, Sec. 6)
1. Inform the accused, before arraignment, of
his right to counsel;
2. Ask the accused if he desires to have one;
and,
3. If the accused desires but is unable to
employ an attorney, the court must assign
counsel de officio for the accused, UNLESS:
a. He is allowed to defend himself in
person; or
b. He has employed a counsel of his
choice.
If he has not yet employed one, the
court must grant him reasonable time
therefore.
Remedial Law
Qualifications of Counsel de officio to be
Appointed (Rule 116, Sec. 7)
1. A member of the bar in good standing; and,
2. Able to competently defend the accused by
reason of his experience and ability.
Where no member of the bar is available, the
court may appoint any person to defend the
accused who is:
1. A resident of the province; and,
2. Of good repute for probity and ability to
defend the accused.
The counsel de officio appointed must be given
a reasonable time to consult with the accused as
to his plea before proceeding with the
arraignment (Rule 116, Sec. 8).
 A private prosecutor, who assisted the
prosecuting attorney in prosecution against
one defendant, is disqualified from acting
as counsel de officio for the other
defendants in the same case (U.S. vs.
Laranja, G.R. No. 6789, February 16, 1912).
 However, although the attorney appointed
as counsel de officio had previously
appeared as private prosecutor in the case,
if it appears that the accused were properly
defended, the appointment, if it be
erroneous, is not reversible error (People vs.
Manigbas, G.R. No. L-10352-53, September 30,
1960).
Bill of Particulars (Rule 116, Sec. 9)
The Rules provide for this remedy to protect the
accused from vague and indefinite allegations in
the complaint or information.
Purpose:
The purpose of the bill of particulars is for the
accused to be fully apprised of the true charges
against them, and thus avoid any and all other
possible surpise, which might be detrimental to
their rights and interests (People vs. Abad Santos,
G.R. No. L-447, June 17, 1946).
Bar Operations C ommissions 409
 Purple Notes
Remedial Law
Requirements: (BeSpe-Sta)
1. The motion must be made before
arraignment;
2. It must specify the alleged defects; and,
3. It must state the details desired. (Rule 12,
Sec. 1)
Production or Inspection of Material
Evidence in Possession of Prosecution (Rule
116, Sec. 10)
Requirements:
1. Motion of the accused showing good cause;
and,
2. Notice to the parties
Material evidence refers to written
statements, documents and things not
otherwise privileged in the possession or under
the control of the prosecution, police or other
law investigating agencies.
This is one of the modes of discovery in criminal
cases for the accused only.
Grounds for Suspension of Arraignment
(Rule 116, Sec. 11)
1. The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently
thereto. The court shall order his mental
examination and, if necessary, his
confinement for such purpose.
2. There exists a prejudicial question.
3. A petition for review of the resolution of the
prosecutor is pending at either the
Department of Justice or the Office of the
President; provided that the period of
suspension shall not exceed 60 days counted
from the filing of the petition with the
reviewing office.
Note: The proper party must move for the
suspension based on the above grounds.
7.H. MOTION TO QUASH (Rule 117)
410 Center for Legal Education and Research
It is the mode by which an accused assails the
validity of a criminal complaint or information
filed against him for insufficiency on its face in
point of law, or for defects which are apparent
in the face of the information (People of the
Philippines vs. Odtuhan, G.R. No. 191566, July 17,
2013)
Q: What is a Motion to Quash?
A: A motion to quash is the mode by which an
accused assails, before entering his plea, the
validity of the criminal complaint or the criminal
information filed against him for insufficiency on
its face in point of law, or for defect apparent on
the face of the information. The motion, as a
rule, hypothetically admits the truth of the facts
spelled out in the complaint or information(Los
Banos vs. Pedro, G.R. No. 173588, April 22, 2009).
General Rule: The court, in resolving the
motion, cannot consider facts contrary to those
alleged in the information or which do not
appear on the face of the information.
Exception: Those admitted by the prosecution.
Rules Governing Motion to Quash
1. If denied – go to trial without prejudice to
reiterating special defenses invoked in said
motion.
2. If after trial on the merits, an adverse
decision is rendered – appeal in the manner
authorized by law(Marcelo vs. CA, G.R. 106695,
August 4, 1994).
3. If granted – a final order; immediately
appealable, provided defendant will not be
placed in double jeopardy.
When Certiorari may be Entertained if
Motion to Quash is Denied
1. When the action is necessary to promote
public welfare and public policy; or
2. Where the case has attracted nationwide
attention, making it imperative to proceed
with dispatch in the consideration thereof, or
3. Where the appeal is found to be an
improper remedy because the order which is
sought to be reviewed is merely interlocutory
 Purple Notes
or peremptory in character and the appeal
there from can be interposed only after final
judgment and may, therefore, be of no avail;
or
4.In the interest of substantial justice.
Q: When may the Accused Resort to
Certiorari or Prohibition?
A: Well-established is the rule that when a
motion to quash in a criminal case is denied, the
remedy is not a petition for certiorari butfor
petitioners to goto trial without prejudice to
reiterating the special defenses invoked in their
motion to quash, except, if the court, in denying
the motion to dismiss or motion to quash acts
without or in excess of jurisdiction or with grave
abuse of discretion, then certiorari or prohibition
lies (Lazarte, Jr. vs Sandiganbayan, G.R.No. 180122,
March 13, 2009).
Note: An order granting motion to quash is a
final order which is generally subject to Rule 45
and not Rule 65, subject to an exception that
Rule 65 may be availed of where it can be
clearly established that there was grave abuse
of discretion in issuing the order. The
information needs only to state ultimate facts
(People vs. Romualdez, G.R. No. 166510, July 23,
2008).
When to File(Rule 117, Sec. 1)
General Rule: At any time before entering his
plea, the accused may move to quash the
complaint or information.
1. The motion to quash must be filed before the
arraignment. Thereafter, no motion to quash
can be entertained by the court.
2. It may even be filed during the preliminary
investigation.
Exceptions: A motion to quash can be filed
and entertained at any stage of the proceeding
when:
a.) The complaint or information does not
charge an offense.
b.) The court has no jurisdiction over the offense
charged.
Remedial Law
c.) The offense or penalty has been
extinguished.
d.) The defendant has been in former jeopardy.
(Miranda vs. Sandiganbayan, G.R. No. 154098,
July 27, 2005)
Note: Prescription of the offense as a ground
for a motion to quash is not waived as this is a
substantive right.
Form and Contents (Rule 117, Sec. 2)
1. In writing;
2. Signed by the accused or his counsel;
3. Distinctly specify its factual and legal
grounds.
General Rule: The court shall consider no
ground other than those stated in the motion.
Exception: lack of jurisdiction over the offense
charged.
7.H.1 Grounds for Motion to Quash (Rule
117, Sec. 3) (FaOf-PerAu-FoMEx-JusCo)
1. That the facts charged do not constitute an
offense;
2. That the court trying the case has no
jurisdiction over the offense charged;
3. That the court trying the case has no
jurisdiction over the person of the accused;
4. That the officer who filed the information
had no authority to do so;
5. That it does not conform substantially to the
prescribed form;
6. That more than one offense is charged
EXCEPT when a single punishment for
various offenses is prescribed by law;
7. That the criminal action or liability has been
extinguished;
8. That it contains averments which, if true,
would constitute a legal excuse or
justification; and,
9. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent.
Bar Operations C ommissions 411
 Purple Notes
Remedial Law
Q: Can the infirmity in the information by DEMURRER TO
MOTION TO QUASH
lack of authority be cured by silence, EVIDENCE
acquiescence, or by express consent? Filed before the Filed after the prosecution
defendant enters his has rested its case.
plea.
A: The Supreme Court ruled that the infirmity in
Does not go into the Based upon the
the information caused by lack of authority of
merits of the case but inadequacy of the
the officer signing it cannot be cured by silence, is rather anchored on evidence adduced by the
acquiescence or even by express consent. A matters not directly prosecution in support of
new information must be filed by the proper concerned with the the accusation.
office (Romualdez vs. Sandiganbayan, G.R. Nos. question of guilt or
143618-41, July 30, 2002) innocence of the
accused.
Q: May an accused waive his right to be Governed by Rule 117. Governed by Sec. 23,
tried for only one crime in a single Rule 119.
complaint or information?
 Insufficiency of evidence is not one of the
A: When two or more offenses are charged in a grounds of a Motion to Quash (People vs.
single complaint or information, but the accused Dumlao, G.R. No. 168918, March 2, 2009).
failed to object to the defect before trial, the
trial court may convict them of as many Amendment of the complaint or
offenses as are charged and proven, and impose information (Rule 117, Sec. 4)
on them the penalty for each offence, setting
out separately the findingsof fact and law in 1. If based on an alleged defect of the
each (Monteverde vs. People, G.R. No. 139610, complaint or information which can be cured
August 12, 2002). by amendment, the court shall order that an
amendment be made.
Q: When is the prescriptive period 2.If based on the ground that the facts charged
interrupted? do not constitute an offense, the prosecution
shall be given by the court an opportunity to
A: The Court had ruled, in several cases, that correct the defect by amendment.
the prescriptive period is interrupted by the The motion to quash shall be granted if:
institution of proceedings for preliminary
investigation against the accused (Panaguiton vs. 1. The prosecution fails to make the
Department of Justice, G.R. 167571, November, 25, amendment; or,
2008). 2. The complaint or information still suffers
from the same defect despite the
Q: What does Duplicity of Charges means? amendment. (Rule 117, Sec. 4)

A: It means a single complaint or information Q: What is the test in identifying whether

that charges more than one offense. xxx
Otherwise stated, there is duplicity (or
multiplicity) of charges when a single
Information charges more than one offense
(Soriano vs. People, G.R. Nos. 159517-18, June 30,
2009).
Note: A case is dismissed without the express
consent of the accused when a provisional
dismissal becomes permanent.
7.H.2 Distinguished From Demurrer To
Evidence
the rights of an accused are prejudiced by
the amendment of a complaint or
information?
A: The test on whether the rights of an accused
are prejudiced by the amendment of a
complaint or information is whether a defense
under the complaint or information, as it
originally stood, would no longer be available
after the amendment is made, and when any
evidence the accused might have would be
inapplicable to the complaint or information

412 Center for Legal Education and Research

 Purple Notes
(Poblete vs. Sandiganbayan, G.R. No. 150610, March
25, 2004)
As laid down by the Supreme Court, an
amendment is only in form when it merely adds
specifications to eliminate vagueness in the
information and not to introduce new and
material facts, and merely states with additional
precision something which is already contained
in the original information and which, therefore,
adds nothing essential for conviction for the
crime charged (Poblete vs. Sandiganbayan, G.R. No.
150610, March 25, 2004).
7.H.3 Effect of Sustaining the Motion to
Quash (Rule 117, Sec. 5)
1. The court may order that another complaint
or information be filed EXCEPT if barred;
2. If the order is made, the accused, if in
custody, shall not be discharged UNLESS
admitted to bail;
3. If no order is made or if having been made,
no new information is filed within the time
specified in the order or within such further
time as the court may allow for good cause,
the accused, if in custody, shall be
discharged UNLESS he is also in custody for
another charge.
7.H.4 Order Sustaining the Motion to
Quash Not a Bar to Another
Prosecution(Rule 117, Sec. 6)
General Rule: An order sustaining the motion
to quash is not a bar to another prosecution for
the same offense.
Exceptions: When the motion was based on
following grounds:(ExCon)
1. That the criminal action or liability has been
extinguished.
2. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent.(Rule 117, Sec. 6)
An Order Denying a Motion to Quash is
Interlocutory and not Appealable
Remedial Law
 The denial by the trial court of a motion to
quash cannot be the subject of a petition for
certiorari, prohibition or mandamus in
another court of coordinate rank.
First, a denial of a motion to quash is not
appealable. Petition for certiorari is only
proper when appeal is not an adequate
remedy. The remedy is to go to trial.
Second, certiorari is an exception and a
recourse grounded only on compelling
reasons such as: in the interest of
enlightened and substantial justice,
promotion of public welfare and public
policy, cases that have generated
nationwide attention making it essential to
proceed with dispatch in the consideration
thereof, or judgments attended by grave
abuse of discretion (Galzote vs. Briones, G.R.
No. 164682, September 14, 2011).
7.H.5 Double Jeopardy (Rule 117, Sec. 7)
It means that when a person is charged with an
offense and the case is terminated either by
acquittal or conviction or in any other manner
WITHOUT the consent of the accused, the latter
cannot again be charged with the same or
identical offense(Villareal vs. People, G.R. 151258,
February, 1, 2012).
 Jeopardy refers to peril in which a person
is put when he is regularly charged with a
crime before a tribunal properly organized
and competent to try him(People vs. Jabajab,
G.R. Nos. L-9238-39, November 13, 1956).
Q: When does the Accused waive his
constitutional safeguard against Double
Jeopardy?
A: The Supreme Court reiterates that when an
accused appeals from the sentence of the trial
court, he waives the constitutional safeguard
against double jeopardy and throws the whole
case open to the review of the appellate court,
which is then called to render judgment as the
law and justice dictate, whether favorable or
unfavorable, and whether they are made the
subject of assigned errors or not. (People
vs.Rondero, G.R. No. 125687, December 9, 1999)
Bar Operations C ommissions 413
 Purple Notes
Remedial Law
Q: May an Accused be Prosecuted for More
than One Offense?
A: The Supreme Court had ruled that a single
act or incident might offend against two or more
entirely distinct and unrelated provisions of law
thus justifying the prosecution of the accused
for more than one offense. The only limit to this
rule is the Constitutional prohibition that no
person shall be twice put in jeopardy of
punishment for ―the same offense‖ (Loney vs.
People, G.R. No. 152644, February 10, 2006)
When First Jeopardy Attaches
Requisites: It is necessary that in the first
case, there was: (ICAP-Con)
1. a valid indictment;
2. before a competent court of jurisdiction;
3. after arraignment;
4. when a valid plea has been entered; and,
5. when the accused has been acquitted or
convicted, or the case dismissed or
otherwise terminated without his express
consent (Cerezo vs. People, G.R. No. 185230,
June 01, 2011).
 If the case is dismissed upon defendant‘s
request or with his express consent, the
dismissal is not a bar to another prosecution
for the same offense because his act
prevents the court from proceeding to trial
on the merits and rendering judgment of
conviction against him (People vs. Obsania,
G.R. No. L-24447, June 29, 1968).
 Double jeopardy exists when the following
requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first
jeopardy has been validly terminated; and
(3) a second jeopardy is for the same
offense as in the first (Cerezo vs. People, G.R.
No. 185230, June 01, 2011).
Q: What is the Effect of Double Jeopardy
on the Civil Aspect of the Case?
A: A judgment of acquittal is immediately final
and executory and the prosecution cannot
appeal the acquittal because of the
constitutional prohibition against double
jeopardy. However, either the offended party or
414 Center for Legal Education and Research
the accused may appeal the civil aspect of the
judgment despite the acquittal of the accused.
The public prosecutor has generally no interest
in appealing the civil aspect of a decision
acquitting the accused. The acquittal ends the
work of the public prosecutor and the case is
terminated as far as he is concerned(Cruz vs.
Court of Appeals, G.R. No. 123340, August, 29,
2002).
When ALL the Requisites of First Jeopardy
are Present, they Constitute a Bar to a
Second Prosecution which is:
1. For the same offense;
2. For an attempt to commit the same offense;
3. For a frustration of the said offense;
4. For any offense which necessarily includes
or is necessarily included in the first offense
charged.(Rule 117, Sec. 7)
Instances When Dismissal Amounts to
Acquittal and Bars a Subsequent
Prosecution for the Same Offense EVEN IF
Dismissal is at the Instance of Defendant:
1. If predicated upon right to speedy trial of
the accused;
2. Due to a variance between the proof and
allegations;
3. In the strength of a demurrer to evidence;
or
4. Insufficiency of evidence
DISMISSAL ACQUITTAL
Does not decide the Always based on the
case on the merits or merits; that is, the
that the defendant is defendant is acquitted
not guilty. because the evidence
does not show
defendant‘s guilt beyond
reasonable doubt.
If an act is punished by a law and an ordinance,
even if they are considered as different
offenses, conviction/acquittal under either shall
constitute a bar to another prosecution for the
same act.(Carmelo vs. People of the Philippines, G.R.
No. L-3580, March 22, 1950)
 If a single act is punished by two (2)
different provisions of law, but each
provision requires proof of an additional fact
 Purple Notes
which the other does not so require, neither
conviction nor acquittal in one will bar a
prosecution for the other (Perez vs. CA, G.R.
No. L-80838, November 29, 1988).
Test for Determining whether the Two (2)
Offenses are Identical
Same Offense Test – there is identity between
the two offenses when the evidence to support
a conviction for one offense would be sufficient
to warrant a conviction for the other, or when
the second offense is exactly the same as the
first, or when the second offense is an attempt
to commit or a frustration of, or when it
necessarily includes or is necessarily included in,
the offense charged in the first information
(Tehankee, Jr. vs. Madayag, G.R. No. 103102, March
6, 1992).
Exceptions to the Identity Rule:
a.) The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
b.) The facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information (newly discovered
facts); and
c.) The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party EXCEPT as
provided in Section 1(f) of Rule 116
(improper affirmative plea to a lesser
offense)(Rule 117, Section 7).
Same Evidence Test – whether the facts, as
alleged in the 2nd information, if proved, would
have been sufficient to sustain the former
information, or from which the accused may
have been acquitted or convicted.
7.H.6 Provisional Dismissal(Rule 117, Sec. 8)
Requisites: (MoNO-Ser)
a.) Motion by the prosecution with the express
consent of the accused or by the accused
himself, or by both the prosecution and the
accused for a provisional dismissal;
Remedial Law
b.) Notice to the offended party of the motion;
c.) Court issued order granting the motion and
dismissing the case provisionally; and,
d.) Public prosecutor is served with a copy of
the order of provisional dismissal of the
case (People vs. Panfilo Lason, G.R. No.
149453, April 1, 2003).
Provisional Dismissal Becomes Permanent
for Failure to Revive the Case Within:
a) 1 year: for offenses punishable by
imprisonment not exceeding 6 years.
b) 2 years: for offenses punishable by
imprisonment of more than 6 years.
Note: The period above is counted from the
receipt by the public prosecutor of the copy of
the order of provisional dismissal.
Upon the lapse of the period to revive the case,
the State is presumed, albeit disputably, to have
abandoned or waived its right to revive the case
and prosecute the accused. The dismissal
becomes ipso facto permanent. He can no
longer be charged anew for the same crime or
another crime necessarily included
therein(People vs. Lacson, G.R. No. 149453, April 1,
2003).
Procedure in Reviving Provisionally
Dismissed Cases (People vs. Panfilo Lason, G.R.
No. 149453, April 1, 2003):
a. If the revival is done within the time-bar
and the case involves the same offense or
an offense necessarily included therein,
revival may be had by the refiling of the
Information or by the filing of a new
Information, without the need of a new
preliminary investigation;
b. If after the provisional dismissal, the original
witnesses of the prosecution or some of
them have recanted their testimonies or
have died or are no longer available and
new witnesses for the State have emerged,
the revival within the time-bar for the same
offense or an offense necessarily included
therein may still be done by the refiling of
the Information or by the filing of a new
Bar Operations C ommissions 415
 Purple Notes
Remedial Law
Information, provided that a new
preliminary investigation is conducted;
c. If, in the revival, other persons are charged
for the same offense or one necessarily
included therein, or if the original charge
has been upgraded, or if the criminal liability
of the accused is upgraded from that as an
accessory to that as a principal, such revival
within the time-bar for the same offense or
an offense necessarily included therein may
likewise be done by the refiling of the
Information or by the filing of a new
Information, provided that a new
preliminary investigation is conducted;
d. No revival may be done beyond the time-
bar, as such would result in the violation of
the constitutional right of the accused
against double jeopardy.
Q: Are Dismissal Based on a Motion to
Quash and a Provisional Dismissal the
Same?
A: An examination of the whole Rule tells us
that a dismissal based on a motion to quash and
a provisional dismissal are far different from one
another as concepts, in their features, and legal
consequences. While the provision on
provisional dismissal is found within Rule 117
(entitled Motion to Quash), it does not follow
that a motion to quash results in a provisional
dismissal to which Section 8, Rule 117 applies. If
the problem relates to an intrinsic or extrinsic
deficience of the complaint or information, as
shown on its face, the remedy is a motion to
quash under the terms of Section 3, Rule 117.
All other reasons for seeking the dismissal of the
complaint or information, before arraignment
and under the circumstances outlined in Section
8, fall under provisional dismissal (Los Banos vs.
Pedro, G.R. No. 173588, April 22, 2009).
Failure to Move to Quash or to Allege any
Ground Therefor (Rule 117, Sec. 9)
General Rule: All grounds for a motion to
quash are waived if not seasonably raised.
Exceptions: (Off-JurExDo)
1. When the information does not charge an
offense;
416 Center for Legal Education and Research
2. When the ground is lack of jurisdictionof
the court;
3. When the ground is extinction of the
offense or penalty, and;
4. When the ground is double jeopardy.
7.I. PRE-TRIAL (Rule 118)
Note: Rule 118 has been amended by the the
Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct of Pre-trial
and Use of Deposition-Discovery Measures (A.M.
No. 03-1-09-SC, effective August 16, 2004).
Purpose of Pre-trial
1. To simplify the issues, shape up the
testimonial and documentary evidence and
generally to clear the desks for trial (Irving
Trust Co. vs. US, 221 F.2d 303).
2. To promote a fair and expeditious trial of
the criminal and civil aspects of the case
[Rule 118, Sec. 1 (f)]]
Where Pre-trial is Mandatory (Rule 118, Sec.
1)
In all criminal cases cognizable by the:
1. Sandiganbayan;
2. Regional Trial Court;
3. Metropolitan Trial Court;
4. Municipal Trial Court in Cities;
5. Municipal Trial Court;
6. Municipal Circuit Trial Court.
Period for Court to Order Pre-trial
Conference
General Rule: After arraignment and within 30
days from the date the court acquires
jurisdiction over the person of the accused.
Exception: When a shorter period is provided
for in special laws or circulars of the Supreme
Court.(Rule 118, Section 1)
Order for Pre-Trial Conference:
After the arraignment, the Court shall
forthwith set the pre-trial conference
within thirty (30) days from the date of
arraignment, and issue an order:
 Purple Notes
1. Requiring the private offended party to
appear thereat for pusposes of plea-
bargaining EXCEPT for violations of the
Comprehensive Dangerous Drugs Act of
2002, and for other matters requiring his
presence under Sec. 1 of Rule 118;
2. Referring the case to the Branch Clerk of
Court, if warranted, for a preliminary
conference; and,
3. The Preliminary Conference shall be set
at least three days prior to the pre-trial to
mark the documents or exhibits to be
presented by the parties and copies thereof
to be attached to the records after
comparison and to consider other matters
as may aid in its prompt disposition.
4. Informing the parties that no evidence shall
be allowed to be presented and offered
during the trial other than those identified
and marked during the pre-trial, except
when allowed by the court for good cause
shown (Part I, B[2], A.M. No. 03-1-09-SC)
Note: In mediatable cases, the judge shall refer
the parties and their counsel to the Philippine
Mediation Center (PMC) unit for purposes of
mediation if available(A.M. No. 01-10-5-SC
PHILJA).
7.I.1 Matters to be Considered During the
Pre-Trial Conference (Rule 118, Sec. 1) (P-
SWaMod-Ma)
1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of the
parties;
4. Waiver of objections to admissibility of
evidence;
5. Modification of the order of trial if the
accused admits the charge but interposes a
lawful defense;
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case.
a. Agreements covering these matters shall
be approved by the court. (Rule 118, Sec.
2)
Remedial Law
Preliminary Conference in Criminal Cases
(Part I, B[3], A.M. No. 03-1-09-SC)
During the Preliminary Conference, the Branch
Clerk of Court (COC) shall:
1. Assist the parties in reaching a settlement of
the civil aspect of the case;
2. Mark the documents to be presented as
exhibits and copies thereof attached to the
records after comparison;
3. Ascertain from the parties the undisputed
facts and admissions on the genuineness and
due execution of documents marked as
exhibits; and,
4. Consider such other matters as may aid in
the prompt disposition of the case.
The proceedings during the Preliminary
Conference shall be recorded in the Minutes
of Preliminary Conference to be signed by
both parties and counsel (Annex B, A.M. No.
03-1-09-SC).
The Minutes of Preliminary Conference and
the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
Duty of the Judge(Part I, B[4], A.M. No. 03-1-09-
SC)
Before the pre-trial conference, the judge must
study:
1. The allegations of the information;
2. The statements in the affidavits of
witnesses; and
3. Other documentary evidence which form
part of the record of the preliminary
investigation.
Plea Bargaining in Criminal Cases
During the pre-trial, the trial judge shall consider
plea-bargaining arrangements (Part I, B[5], A.M.
No. 03-1-09-SC).
In all other cases where the imposable penalty
is life imprisonment or life imprisonment to
death, plea bargaining is NOT allowed.
 Plea Bargaining is a process whereby the
accused and the prosecution work out a
mutually satisfactory disposition of the case
Bar Operations C ommissions 417
 Purple Notes
Remedial Law
subject to court approval. It usually involves
the defendant's pleading guilty to a lesser
offense or to only one or some of the counts
of a multi-count indictment in return for a
lighter sentence than that for the graver
charge. (Daan vs. Sandiganbayan, G.R. Nos.
163972-77, March 28, 2008)
 Properly administered, plea bargaining is to
be encouraged because the chief virtues of
the system – speedy, economy and finality –
can benefit the accused, the offended party,
the prosecution and the court. X xx
Considering the presence of mutuality of
advantage, the rules on plea bargaining
neither create a right nor take away a
vested right. Instead, it operates as a
means to implement an existing right by
regulating the judicial process for enforcing
rights and duties recognized by substantive
law and for justly administering remedy and
redress for a disregard or infraction of them
(Estipona, Jr. vs. Lobrigo, G.R. No. 226679,
August 15, 2017).
Note: Under the same case, the Court declared
Sec. 23 of R.A. 9165, which prohibits plea
bargaining in drug cases, as unconstitutional for
being violative of the Court‘s rule-making
authority under the Constitution.
7.I.2 What the Court Should Do When
Prosecution and Offended Party Agree to
the Plea Offered by the Accused(Part I, B[3],
A.M. No. 03-1-09-SC)
The court shall:
1. Issue an oder which contains the plea
bargaining arrived at;
2. Proceed to receive evidence on the civil
aspect of the case; and,
3. Render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence.
Court Action When Plea Bargaining Fails
(Part I, B[6], A.M. No. 03-1-09-SC)
1. Adopt the minutes of preliminary conference
as part of the pre-trial proceedings, confirm
marking of exhibits or substituted
photocopies and admissions on the
418 Center for Legal Education and Research
genuineness and due execution of
documents and list object and testimonial
evidence;
2. Scrutinize every allegation of the
information and the statements in the
affidavits and other documents which form
part of the record of the preliminary
investigation and other documents identified
and marked as exhibits in determining
further admissions of facts, documents and
in particular as to the following:
a. the identity of the accused;
b. court‘s territorial jurisdiction relative to
the offense/s charged;
c. qualification of expert witness/es;
d. amount of damages;
e. genuineness and due execution of
documents;
f. the cause of death or injury, in proper
cases;
g. adoption of any evidence presented
during the preliminary investigation;
h. disclosure of defenses of alibi, insanity,
self-defense, exercise of public authority
and justifying or exempting
circumstances; and,
i. such other matters that would limit the
facts in issue.
3. Define factual and legal issues;
4. Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall contain
the time frames for the different stages of
the proceeding up to promulgation of
decision and use the time frame for each
stage in setting the trial dates;
5. Require the parties to submit to the Branch
COC the names, addresses and contact
numbers of witnesses that need to be
summoned by subpoena; and,
6. Consider the modification of order of trial if
the accused admits the charge BUT
interposes a lawful defense.
Pre-Trial Proper(Part I, B[7 and 9], A.M. No. 03-
1-09-SC)
The judge shall be the one to ask questions on
issues raised during the pre-trial.
 Purple Notes
All questions must be directed to the judge to
avoid hostilities between parties.
All proceedings during the pre-trial shall be
recorded, the transcripts prepared and the
minutes signed by the parties and/or their
counsels.
7.I.3 Pre-Trial Agreement As Evidence
Against The Accused (Rule 118, Sec. 2)
Requisites:
a) Reduced in writing; and
b) Signed by the accused and counsel.
 If the prosecution discovered that the
accused did not sign the stipulation of facts,
as required by Rule 118, he should submit
evidence to establish the elements of the
crime and not relying solely on the
stipulation of facts (Fule vs. CA, G.R. No. L-
79094, June 22, 1988 ).
 Pre-trial stipulations were duly signed by the
accused and their counsel cannot be
allowed to unilaterally withdraw the same
unless set aside for good cause. In the Joint
Stipulation of Facts and Documents, the
prosecution opted not to present any
witness considering that the defense
admitted all the documentary evidence of
the prosecution (Bayas vs. Sandiganbayan,
G.R. Nos. 143689-91, November 12, 2002).
7.I.4 Non-Appearance at Pre-Trial
Conference (Rule 118, Sec. 3)
The Court may impose proper sanctions if the
counsel for the accused or the prosecutor does
not appear at the pre-trial conference and does
not offer an acceptable excuse for his lack of
cooperation.
Sanctions and Penalties for Non –
Appearance Refer to the Counsel for the
Accused and the Prosecutor
 Section 8 of Rule 70 of the Rules of Court
requires the appearance of the plaintiff and
the defendant during the preliminary
Remedial Law
conference. Unless inconsistent with Rule
70, the provisions of Rule 18 on pre-trial
applies to the preliminary conference.
Section 4 of Rule 18 may supplement
Section 8 of Rule 70. Thus, the spirit behind
the exception to personal appearance under
the rules on pre-trial is applicable to the
preliminary conference. If there are valid
reasons or if a representative has a ―special
authority,‖ a party‘s appearance may be
waived (Spouses Macasaet vs. Spouses
Macasaet, G.R. No. 154391-92, August 30,
2004).
7.I.5 Pre-Trial Order
It is an order issued by the trial judge within ten
(10) days AFTER the termination of the pre-trial.
Contents of Pre-trial Order (Rule 118, Sec. 4)
1. Actions taken;
2. Facts stipulated;and
3. Evidence marked.
Effects of Pre-Trial Order
1. Binds the parties;
2. Limits the trial to matters not disposed of;
and,
3. Controls the course of the action during the
trial, unless modified by the court to prevent
manifest injustice.(A.M. No. 03-1-09-SC; Rule
118, Section 4)
Referral of Some Cases For Court Annexed
Mediation (CAM) and Judicial Dispute
Resolution (JDR) Proceedings
Note: The diversion of pending court cases
both to Court-Annexed Mediation (CAM) and to
Judicial Dispute Resolution (JDR) is plainly
intended to put an end to pending litigation
through a compromise agreement of the parties.
Objectives:To actively promote party
autonomy in the resolution of disputes or the
freedom of the parties to make their own
arrangement to resolve disputes. Towards this
end, the State shall encourage and actively
promote the use of Alternative Dispute
Bar Operations C ommissions 419
 Purple Notes
Remedial Law
Resolution (ADR) as an important means to
achieve speedy and impartial justice and de-clog
court dockets(A.M. No. 01-10-5-SC PHILJA).
Coverage:
1. All civil cases and the civil liability of criminal
cases covered by the Rule on Summary
Procedure, including the civil liability for
violation of B.P. 22, except those which by
law may not be compromised;
2. Special proceedings for the settlement of
estates;
3. All civil and criminal cases filed with a
certificate to file action issued by the Punong
Barangay or the Pangkat ng
Tagapagkasundo under the Revised
KatarungangPambarangay Law (Chapter 7, RA
7160);
4. The civil aspect of Quasi-Offenses under Title
14 of the Revised Penal Code;
5. The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment, where the
offended party is a private person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings,
testate and intestate, brought on appeal
from the exclusive and original jurisdiction
granted to the first level courts under Section
33, par. (1) of the Judiciary Reorganization
Act of 1980(A.M. No. 08‐9‐10‐SC‐PHILJA);
8. All cases of forcible entry and unlawful
detainer brought on appeal from the
exclusive and original jurisdiction granted to
the first level courts under Section 33, par.
(2) of the Judiciary Reorganization Act of
1980;
9. All civil cases involving title to or possession
of real property or an interest therein
brought on appeal from the exclusive and
original jurisdiction granted to the first level
courts under Section 33, par. (3) of the
Judiciary Reorganization Act of 1980; and
10. All habeas corpus cases decided by the first
level courts in the absence of the Regional
Trial Court judge, that are brought up on
appeal from the special jurisdiction granted
to the first level courts under Section 35 of
the Judiciary Reorganization Act of 1980.
420 Center for Legal Education and Research
The Following Cases shall NOT be Referred
to Court Annexed Mediation and Judicial
Dispute Resolution:
1. Civil cases which, by law, cannot be
compromised (Article 2035, New Civil Code);
2. Habeas Corpus petitions;
3. All cases under Republic Act No. 9262(Anti-
Violence against Women and their Children Act);
and,
4. Cases with pending application for
Restraining Orders/Preliminary Injunctions.
Note: In cases where the parties inform the
court that they have agreed to undergo
mediation on some aspects thereof, e.g.,
custody of minor children, separation of
property, or support pendente lite, the court
shall refer them to mediation (OCA Circular No.
43-2019).
Archiving of Criminal Cases, When Proper
1. After the issuance of the warrant of arrest
and the accused remains at large for 6
months. The court should require the police
officer to explain why accused was not
apprehended. It should issue an alias
warrant of arrest and order the archiving of
the case;
2. When proceedings are ordered suspended
for an indefinite period because:
a. the accused is suffering from an unsound
mental condition;
b. valid prejudicial question exists;
c. an interlocutory order is elevated; and,
d. the accused jumped bail before
arraignment. (Admin. Circ. No. 7-A-92,
June 21, 1993)
7.J. TRIAL (Rule 119)
Note: Rule 119 has been amended by the
Revised Guidelines for Continuous Trial of
Criminal Cases (A.M. No. 15-06-10-SC , effective
September 1, 2017).
 Trial is the examination before a competent
tribunal, according to the laws of the land,
of the facts put in issue in a case for the
 Purple Notes
purpose of determining such issue (U.S. vs.
Raymundo, G.R. NO. L-8149, February 15,
1916).
1. Trial shall commence within 30 days from
receipt of the pre-trial order.
2. The accused, after a plea of not guilty, shall
have 15 days to prepare for trial (Rule 119,
Sec. 1).
Continuous Trial System (Sec. 2, Rule 119)
Once commenced, trial shall continue from day
to day as far as practicable until terminated;
BUT it may be postponed for a reasonable
period of time for good cause.
Limitation on the Trial Period:
General Rule: Trial shall in no case exceed 180
days from the first day of trial.
Exception: When otherwise provided by the
Supreme Court.
7.J.1 When Presence of the Accused is
Required(Sec. 14 [2], Art. III, 1987 Constitution):
1. At the arraignment and plea;
2. At the promulgation of judgment, EXCEPT
when the conviction is for a light offense;
Judgment in light offense may be
pronounced in the presence of the counsel or
representative of the accused, but is not
indispensable therein, as promulgation may
be made in absentia.
3. When ordered by the court for purposes of
identification during trial; and,
4. When the court, with due notice, requires so.
(Marcos vs. Ruiz, G.R. Nos. 70746-47, Sept. 1,
1992)
7.J.2 Requisites Before Trial can be
Suspended on Account of Absence of
Witness (MaNe-DeAf)
1. That the witness is material and appears to
the court to be so.
2. That the party who applies has been guilty of
no neglect.
Remedial Law
3. That the witnesses can be had at the time to
which the trial is deferred and incidentally
that no similar evidence could be obtained.
4. That an affidavit showing the existence of
the above circumstances must be filed.
7.J.3 Trial in Absentia (ANo-Un)
The holding of trial in absentia is authorized
under Section 14 (2), Article III of the 1987
Constitution which provides that "after
arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has
been duly notified and his failure to appear is
unjustifiable."(Estrada vs. People of the
Philippines,G.R. No. 162371. August 25, 2005).
Requisites
1. Accused has been arraigned;
2. He has been duly notified of the trial; and,
3. His failure to appear is unjustified (Gimenez
vs. Nazarreno, No. L-37933, April 15, 1988 ).
Under the old doctrine, trial in absentia of the
escapee could not be held because he could not
be duly notified thereof. Under the present rule,
the fugitive is deemed to have waived such
notice precisely because he has escaped, and it
is also this escape that makes his failure to
appear at his trial unjustified. Escape can never
be a legal justification(People vs. Agbulos, G.R. No.
73875, May 18, 1993).
Remedies of an Accused When
Prosecuting Officer Secures Postponement
of Trial
When a prosecuting officer, without good cause,
secures postponements of the trial of a
defendant against the latter‘s protest and
beyond a reasonable period of time, the accused
may resort to the following remedies:
1. Mandamus to compel a dismissal of the
information;
2. Habeas corpus to obtain his freedom, if he is
restrained of his liberty;
3. Adhere faithfully to the session hours
prescribed by laws; or,
4. Maintain full control of the proceedings.
Bar Operations C ommissions 421
 Purple Notes
Remedial Law
EXCLUSIONS to the Computation of Time In the determination of whether that right has
for Trial to Commence (Rule 119, Sec. 3) been violated, the factors that may be
(PAMDi-JoC) considered and balanced are as follows: (1)
length of the delay; (2) the reasons for the
1) Proceedings concerning the accused (e.g. delay; (3) the assertion or failure to assert such
physical and mental examination, prejudicial right by the accused; and (4) the prejudice
question); caused by the delay. (Dela Pena vs.
2) Absence or unavailability of essential Sandiganbayan, G.R. No. 144542, June 29, 2001)
witness;
3) Mental incompetence or physical inability of  ―Speedy disposition of cases‖ is consistent
the accused; with reasonable delays. if the long delay in
4) Dismissal of information for the filing of the termination of the preliminary
another charge against the accused for the investigation was not solely the
same offense; prosecution‘s fault, but was also due to
5) Accused is joined for trial with co-accused incidents attributable to the accused and his
over whom the court has not acquired counsel, the right of the accused to speedy
jurisdiction; or, disposition of cases is not violated.
6) Continuance (Mendoza-Ong vs. Sandiganbayan, et al., G.R.
No. 146368-69, October 18,2004)
7.J.4 Remedies When Accused is NOT  In criminal cases, a motion to dismiss may
Brought to Trial Within the Prescribed be filed on the ground of denial of the
Period (Rule 118, Sec. 9) accused‘s right to speedy trial. This denial is
characterized by unreasonable, vexatious,
1. The information may be dismissed on motion and oppressive delays without fault of the
of the accused on the ground of denial of his accused, or by unjustified postponements
right to speedy trial. that unreasonably prolonged the trial. This
2. Dismissal shall constitute double jeopardy. was the main thrust of Cabador‘s motion to
3. The accused must move to dismiss before dismiss and he had the right to bring this up
trial actually commences, otherwise, he for a ruling by the trial court. The fact is
waives such right. that Cabador did not even bother to do
what is so fundamental in any demurrer. He
DISMISSAL WITHOUT PREJUDICE did not state what evidence the prosecution
DISTINGUISHED FROM DISMISSAL WITH had presented against him to show in what
PREJUDICE respects such evidence failed to meet the
elements of the crime charged. His so-called
DISMISSAL "demurrer" did not touch on any particular
DISMISSAL WITH testimony of even one witness. He cited no
WITHOUT
PREJUDICE
PREJUDICE documentary exhibit. Indeed, he could not
Allows a new suit to be An adjudication on the because, he did not know that the
brought on the same merits, the final prosecution finally made its formal offer of
cause of action. disposition barring the exhibits on the same date he filed his
right to bring or maintain motion to dismiss. To say that Cabador filed
an action on the same
a demurrer to evidence is equivalent to the
claim or cause; res
judicata as to every
proverbial blind man, touching the side of
matter litigated. an elephant, and exclaiming that he had
touched a wall (People vs. Cabador, G.R. No.
186001, October 2, 2009).
The right to speedy disposition of cases, like the
right to speedy trial, is violated only when the
Order of Trial(Rule 119, Sec. 11)
proceedings are attended by vexatious,
capricious and oppressive delays.

422 Center for Legal Education and Research

 Purple Notes
1. The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
2. The accused may present evidence to prove
his defense and damages, if any, arising
from the issuance of a provisional remedy in
the case.
3. The prosecution and the defense may, in
that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue.
4. Upon admission of the evidence of the
parties, the case shall be deemed submitted
for decision unless the court directs them to
argue orally or to submit written
memoranda.
5. When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the order of trial
may be modified.
Note: A departure from the order of the trial is
not reversible, as where it was agreed upon or
not seasonably objected to, but not where the
change in the order of the trial was timely
objected by the defense.
 Where the order of the trial set forth under
this section was not followed by the court
to the extent of denying the prosecution an
opportunity to present its evidence, the trial
is a nullity (People vs. Balisacan, G.R. No. L-
26376, August 31, 1966).
Reverse Trial
When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the trial court may
allow the accused to present his evidence and
thereafter give the prosecution the opportunity
to present his rebuttal evidence.
 Refusal of the court to reverse the order of
trial upon demand of the accused who
pleads self-defense as a defense is NOT a
reversible error (People vs. Gutierrez, G.R. No.
116281, February 08, 1999).
 The modification of the order of trial is
discretionary and denial is interlocutory in
nature and hence, not appealable (People vs.
Remedial Law
Marcial, G.R. Nos. 152864-65, September 27,
2006).
Application for Examination of Witness for
Accused Before Trial (Rule 119, Sec. 12)
Accused may have witnesses examined
conditionally in his behalf, before trial, upon
motion with notice to all other parties.
The Motion Must State:
1. Name and residence of witness;
2. Substance of testimony;
3. Witness is sick or infirm as to afford
reasonable ground to believe that he will not
be able to attend the trial or resides more
than 100 km from the place of trial and has
no means to attend the same, or other
similar circumstances exist that would make
him unavailable or prevent him from
attending trial.
4. The motion shall be supported by an affidavit
and such other evidence as the court may
require.
Examination of Defense Witness (Rule 119,
Sec. 13)
The examination of witnesses must be done
orally before a judge in open court. This is true
especially in criminal cases where the
Constitution secures to the accused his right to
a public trial and to meet the witnessess against
him face to face. The requirement is the "safest
and most satisfactory method of investigating
facts" as it enables the judge to test the witness'
credibility through his manner and deportment
while testifying. It is not without exceptions,
however, as the Rules of Court recognizes the
conditional examination of witnesses and the
use of their depositions as testimonial evidence
in lieu of direct court testimony (Go vs. People,
G.R. No. 185527, July 18, 2012).
Rule 23 on Deposition NOT Applicable to
Criminal Cases
 Rule 119 categorically states that the
conditional examination of a prosecution
witness shall be made before the court
where the case is pending. Contrary to
Bar Operations C ommissions 423
 Purple Notes
Remedial Law
petitioners‘ contention, there is nothing in Requisites: (NoMO)
the rule which may remotely be interpreted
to mean that such requirement applies only 1. Court is satisfied, upon proof or oath, that a
to cases where the witness is within the material witness will not testify when
jurisdiction of said court and not when he is required;
kilometers away, as in the present case. 2. Motionby either party; and,
Therefore, the court may not introduce 3. Order of court to the witness to post bail
exceptions or conditions. xxx Considering
that Rule 119 adequately and squarely Effect of Refusal to Post Bail: The court shall
covers the situation in the instant case, we commit the witness to prison.
find no cogent reason to apply Rule 23
Period of Imprisonment
suppletorily or otherwise (Vda. De Manguerra
vs. Risos, G.R. No. 152643, August 28, 2008). 1. Until the witness complies; or,
2. Until he is legally discharged after his
APPLICATION FOR testimony has been taken
MODES OF
EXAMINATION OF
DISCOVERY UNDER
WITNESS UNDER THE Examination of Witness for the
THE CIVIL
RULES OF CRIMINAL
PROCEDURE Prosecution (Rule 119, Sec. 15)
PROCEDURE (Sec. 12,
(Rule 24)
Rule 119)
Rule 24 applies in a The procedure set forth When Witness may be Conditionally
suppletory character in must be complied with Examined (SiLe)
all matters not strictly.
specifically touched on 1. Witness is too sick or infirm to attend trial;
by Sec. 12, Rule 119 or,
and the preceding 2. He has to leave the Philippines with no
sections. definite date of returning.
The taking of The conditional
depositions under Rule examination of a defense
Note:
24 is taken for the witness under Sec. 12 and
preservation of a 13, Rule 119 are taken for
material witness‘ the preservation also of a Such examination in the presence of the
testimony. material witness‘ accused or in his absence after reasonable
testimony. notice to attend the examination has been
If the court is satisfied that the examination of served on him shall be conducted in the same
witness is necessary as provided in Sec 4, an manner as in examination at the trial.
order directing that the witness be examined Failure or refusal of the accused to attend after
shall be made and a copy served on the fiscal. notice shall be considered as a waiver(Rule 119,
Sec. 15).
The examination shall be taken before any
judge or, if not practicable, before any member Face-to-Face Confrontation
of the Bar in good standing so designated in the
order.  The requirement insures that the witness
will give his testimony under oath, thus
The examination shall proceed notwithstanding deterring lying by the threat of perjury
the absence of the prosecutor provided he was charge; it forces the witness to submit to
duly notified of the hearing. A written record of
cross-examination, a valuable instrument in
the testimony shall be taken(Rule 119 Sec. 13).
exposing falsehood and bringing out the
Bail to Secure Appearance of truth; and it enables the court to observe
MaterialWitness(Rule 119, Sec. 14) the demeanor of the witness and assess his
credibility."(Bernas, J.G., The 1987 Constitution:
A Commentary, 1996 Edition, p. 463, citing U.S.

424 Center for Legal Education and Research

 Purple Notes
Remedial Law
vs. Anastacio, G.R. No. 2821, August 30, 1906; General Rule: Joint trial – applies when two or
U.S. vs. Raymundo,G.R.No. 4947, November 11, more accused are jointly charged with any
1909; and U.S. vs. Javier,G.R. No. 12990, offense
January 21, 1918)
Exception: Separate trial – applies when the
Cross-Examination of a Witness court, in its discretion and upon motion of the
prosecutor or any accused, orders separate trial
 There is also the advantage of the witness for one or more accused.
before the judge, and it is this – it enables 1. The motion for separate trial must be filed
the judge as trier of facts "to obtain the before the commencement of the trial and
elusive and incommunicable evidence of a cannot be raised for the first time on appeal.
witness' deportment while testifying, and a 2. If a separate trial is allowed to one of two or
certain subjective moral effect is produced more defendants, his testimony therein
upon the witness. It is only when the imputing guilt to any of the co-accused is not
witness testifies orally that the judge may admissible against the latter who was not
have a true idea of his countenance, able to cross-examine him.
manner and expression, which may confirm
or detract from the weight of his testimony. Admission to the Witness Protection
Certainly, the physical condition of the Program(R.A. No. 6981)
witness will reveal his capacity for accurate
observation and memory, and his Requisites:
deportment and physiognomy will reveal
clues to his character. These can only be 1. The person has witnessed or has knowledge
observed by the judge if the witness or information on the commission of a crime.
testifies orally in court. (People vs. Estenzo, 2. The person has testified or testifying or
G.R. No. L-41166, August 25, 1976) about to testify before any judicial or quasi-
judicial body or before any investigating
authority;
CROSS-EXAMINATION 3. The offense in which his testimony will be
FACE-TO-FACE
OF A WITNESS IN A used is a grave felony as defined under the
CONFRONTATION IN
FOREIGN PLACE
A PUBLIC CRIMINAL RPC, or its equivalent under special laws;
OUTSIDE THE
TRIAL IN THE 4. His testimony can be substantially
COURTROOM IN THE
PRESENCE OF THE corroborated in its material points;
ABSENCE OF A TRIAL
PRESIDING JUDGE 5. He or any member of his family within the
JUDGE
The right of The main and essential second civil degree of consanguinity or
confrontation is held to purpose of requiring a affinity is subjected to threats to his life or
apply specifically to witness to appear and bodily injury or there is a likelihood that he
criminal proceedings. It testify orally at a trial is will be killed, forced, intimidated, harassed or
has a two-fold purpose: to secure for the adverse corrupted to prevent him from testifying or
party the opportunity of
to testify or evasively because of or on
(1) to afford the cross-examination.
accused an opportunity account of his testimony; and,
to test the testimony of This is for the purpose of 6. He is not a law enforcement officer, even if
witnesses by cross- cross examination which he would be testifying against other law
examination; and, cannot be had except by enforcement officers. In such case, only
(2) to allow the judge the direct and personal immediate members of his family may avail
to observe the putting of questions and themselves of the protection provided for
deportment of obtaining immediate under the Witness Protection Act.
witnesses. answers.
Responsibilities of a Witness under the
Trial of Several Accused (Rule 119, Sec. 16) Witness Protection Program

Bar Operations C ommissions 425

 Purple Notes
Remedial Law
1. To testify before and provide information to
all appropriate law enforcement officials
concerning all appropriate proceedings in
connection with or arising from the activities
involved in the offense charged;
2. To avoid the commission of a crime;
3. To take all necessary precautions to avoid
detection by others of the facts concerning
the protection provided him;
4. To comply with legal obligations and civil
judgment against him;
5. To cooperate with respect to all reasonable
requests of officers and employees; and,
6. To regularly inform the appropriate program
official of his current activities and
address(Sec. 5, R.A. No. 6981).
7.J.5 Requisites for Discharge of Accused
To Be State Witness(Rule 119, Sec. 17)
Motion to discharge should be made by the
prosecution before resting its case.
In the discharge of an accused in order that he
may be a state witness, the following conditions
must be present, namely:
1. Two or more accused are jointly charged
with the commission of an offense;
2. The motion for discharge is filed by the
prosecution before it rests its case;
3. The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a hearing in
support of the discharge;
4. The accused gives his consent to be a state
witness; and,
5. The trial court is satisfied that:
a. There is absolute necessity for the
testimony of the accused whose discharge
is requested;
b. There is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of said
accused;
c. The testimony of said accused can be
substantially corroborated in its material
points;
d. Said accused does not appear to be the
most guilty; and,
426 Center for Legal Education and Research
e. Said accused has not at any time been
convicted of any offense involving moral
turpitude(Salvanera vs. People, G.R. No.
143093, May 21, 2007).
Note: Absence of any of the requisites is a
ground for objection to the motion for his
discharge, but such objection must be raised
before the discharge is ordered.
 The Rules do not disqualify an accused The
Rules do not disqualify an accused sought to
be discharged as witness for the state
merely on the ground that he has
committed a falsification himself, or that he
had actually committed the crime charged.
The Rules say that it is necessary that the
said defendant does not appear to be the
'most guilty,' from which the conclusion
follows that the guilt of an accused of the
crime charged is no reason why he may not
be excluded as witness for the State. As a
matter of fact, the candid admission of an
accused, of his participation in a crime, is a
guaranty that if he will testify in court he
will testify truthfully; so that even if an
accused actually participated in the offense
charged in the information, he may still be
made a witness (Lugtu vs. CA, G.R. No. 42037,
March 21, 1990).
Q: When may an Accused become a State
Witness?
A: The two modes by which a participant in the
commission of a crime may become a state
witness are, namely: (a) by discharge from the
criminal case pursuant to Section 17 of Rule 119
of the Rules of Court; and (b) by the approval of
his application for admission into the Witness
Protection Program of the DOJ in accordance
with Republic Act No. 6981 (The Witness
Protection, Security and Benefit Act) (Ampatuan
Jr. vs. Sec. De Lima, G.R. No. 197291, April 3, 2013).
7.J.6 Effects of Discharge of Accused as
State Witness(Rule 119, Sec. 18)
If granted – Evidence adduced in support of
the discharge shall automatically form part of
the trial.
 Purple Notes
General Rule: It operates as an acquittal and
bar to further prosecution for the same offense.
Exception: When the state witness fails or
refuses to testify in accordance with his sworn
statement from which his discharge was based.
If denied – the accused‘s sworn statement
shall be inadmissible in evidence.
Exceptions to the Effects of a Motion to
Discharge
1. If the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of the
discharge;
2. Failure to testify refers exclusively to
defendant‘s will or fault.
3. Where an accused who turns state‘s
evidence on a promise of immunity later
retracts and fails to keep his part of the
agreement, his confession of his participation
in the commission of the crime is admissible
as evidence against him(People vs Beberino,
G.R. No. L-23092, October 28, 1977).
4. Once discharged, even if one or all of the
conditions required for discharge did not
really exist, that fact does not affect the legal
consequences of the discharge and the
admissibility and credibility of his testimony,
IF otherwise admissible and credible(People
vs Bautista, G.R. No. L- 10029, August 21, 1959).
Note: Erroneous or improper discharge of a
state witness does not affect the competency
and quality of the testimony of the discharged
defendant.
When Mistake Has been Made in Charging
the Proper Offense (Rule 119, Sec. 19)
Substitution of the complaint or information
must NOT amount to double jeopardy.
1. The accused shall not be discharged if there
appears a good cause to detain him;
2. Apparently, to raise the defense of double
jeopardy, three requisites must be present:
(FiTer-Sam)
a. A first jeopardy must have attached prior
to the second;
Remedial Law
b. The first jeopardy must have been validly
terminated; and,
c. The second jeopardy must be for the
same offense as that in the first.
(Dimayacyac vs. Court of Appeals, G.R. No.
136264, May 28, 2004)
 Appellant failed to file a motion to quash
within the time prescribed under Section 1,
Rule 117 of the Rules of Court, he is thus
deemed to have waived the defect in the
Information. A duplicitous information is
valid since such defect may be waived and
the accused, because of such waiver, could
be convicted of as many offenses as those
charged in the information and proved
during trial (Mendoza-Ong vs. Sandiganbayan,
et al., G.R. No. 146368-69, October 18, 2004).
Exclusion of the Public (Rule 119, Sec. 21)
Grounds: (OM)
1. When evidence to be presented is offensive
to decency or public morals;
2. On motion of accused; or,
3. Under the Child Witness Rule, because the
child might be intimidated.
Consolidation of Trials of Related Offenses
(Rule 119, Sec. 22)
This contemplates a situation where separate
informations are filed for offenses founded on
the same facts and for offenses which form part
of a series of offenses of similar character.
Charges for such offenses may be tried jointly at
the discretion of the court.
7.J.7 Demurrer to Evidence (Rule 119, Sec.
23)
Demurrer to Evidence in Criminal Cases as
Amended by the Revised Guidelines for
Continuous Trial of Criminal Cases (Part III,
13[d], A.M. No. 15-06-10-SC, effective September 1,
2017)
1. After the prosecution has rested its case, the
court shall inquire from the accused if he/she
desires to move for leave of court to file a
Bar Operations C ommissions 427
 Purple Notes
Remedial Law
demurrer to evidence, or to proceed with the
presentation of his/her evidence.
2. If the accused orally moves for leave of court
to file a demurrer to evidence, the court shall
orally resolve the same.
If the Motion for Leave is Denied
1. If the motion for leave is denied, the court
shall issue an order for the accused to
present and terminate his/her evidence on
the dates previously agreed upon, and to
orally offer and rest his/her case on the day
his/her last witness is presented.
2. If despite the denial of the motion for leave,
the accused insists on filing the demurrer to
evidence, the previously scheduled dates for
the accused to present evidence shall be
cancelled.
3. The demurrer to evidence shall be filed
within a non-extendible period of ten (10)
calendar days from the date leave of court
is granted, and the corresponding comment
shall be filed within a non-extendible period
of ten (10) calendar days counted from date
of receipt of the demurrer to evidence.
4. The demurrer shall be resolved by the court
within a non-extendible period of thirty (30)
calendar days from date of the filing of the
comment or lapse of the ten (10)-day period
to file the same.
If the Motion for Leave is Granted
 If the motion for leave of court to file
demurrer to evidence is granted, and the
subsequent demurrer to evidence is denied,
the accused shall likewise present and
terminate his/her evidence (one day apart,
morning and afternoon) and shall orally
offer and rest his/her case on the day
his/her last witness is presented.
 The court shall rule on the oral offer of
evidence of the accused and the comment
or objection of the prosecution on the same
day of the offer. If the court denies the
motion to present rebuttal evidence because
it is no longer necessary, it shall consider
the case submitted for decision.
 To determine whether the pleading filed is a
demurer to evidence or a motion to dismiss,
428 Center for Legal Education and Research
the Court must consider (1) the allegations
in it made in good faith; (2) the stage of the
proceeding at which it is filed; and (3) the
primary objective of the party filing it (People
vs. Cabador, supra citing Enojas, Jr. vs.
Commission on Elections, G.R. No. 129938,
December 12, 1997).
 A demurrer to evidence is filed after the
prosecution has rested its case and the trial
court is required to evaluate whether the
evidence presented by the prosecution is
sufficient enough to warrant the conviction
of the accused beyond reasonable doubt. If
the court finds that the evidence is not
sufficient and grants the demurrer to
evidence, such dismissal of the case is one
on the merits, which is equivalent to the
acquittal of the accused.
The court cannot review an order granting
the demurrer to evidence and acquitting the
accused on the ground of insufficiency of
evidence because to do so will place the
accused in double jeopardy. Double
jeopardy attaches even if the dismissal of
the case was made on motion of the
accused if: (1) the dismissal is based on a
demurrer to evidence filed by the accused
after the prosecution has rested, which has
the effect of a judgment on the merits and
operates as an acquittal; and, (2) if the
dismissal is made also on motion of the
accused because of the denial of his right to
a speedy trial which is in effect a failure to
prosecute (Bangayan Jr. vs. Bangayan, G.R. No.
172777, October 19, 2011).
 The proscription against double jeopardy
only envisages appeals based on errors of
judgment, but not errors of jurisdiction.
Jurisprudence recognizes two grounds
where double jeopardy will not attach, these
are: (i) on the ground of grave abuse of
discretion amounting to lack or excess of
jurisdiction; and/or (ii) where there is denial
of a party‘s due process rights. In this case,
the SC found that the State was not denied
due process in the proceedings before the
Sandiganbayan. Neither was there any
indication that the special prosecutor
deliberately and willfully failed to present
available evidence or that other evidence
 Purple Notes
Remedial Law
could be secured (People vs. Sandiganbayan If DENIED - If DENIED -
(Fourth Division), G.R. No. 153304-05, February plaintiff distinguish whether
7, 2012). presents there had been
evidence prior leave of court:
Q: What is a Demurer to Evidence?
(1) if with leave,
A: A demurrer to evidence is a motion to accused may
dismiss on the ground of insufficiency of proceed with
evidence. It is a remedy available to the presentation of his
defendant, to the effect that the evidence evidence;
produced by the plaintiff is insufficient in point
of law, whether true or not, to make out a case (2) if without leave,
accused can no
or sustain an issue. The question in a demurrer
longer present his
to evidence is whether the plaintiff, by his evidence
evidence in chief, had been able to establish a If GRANTED - If GRANTED -
prima facie case (Republic vs De Borja, G.R. the case is accused is
187448, January 9, 2017). dismissed; acquitted; order of
order of acquittal is NOT
Q: Can an Appeal from the Grant of a dismissal is a appealable;
Demurrer to Evidence be Granted? FINAL order, otherwise, it will be
hence, a violation the right
A: The grant of a demurrer to evidence amounts appealable. against double
jeopardy.
to an acquittal and cannot be appealed because
If plaintiff No appeal is
it would place the accused in double jeopardy
appeals and allowed, EXCEPT in
(People vs. Go, G.R. No. 191015, August 6, 2014).
the appellate the civil aspect.
court (Hun Hyung Park
REVERSES - vs. Choi, G.R. No.
CIVIL CRIMINAL defendant is 165496, February
DEMURRER DEMURRER no longer 12, 2007)
Similarities Demurrer is a kind of a Motion to allowed to
Dismiss. present
evidence.
It is NOT a prohibited pleading under
the Rules on Summary Proceedings
Reopening (Rule 119, Sec. 24)
because (1) it is there to similarly
expedite the proceedings and (2) it is a. It must be made before finality of judgment
not among those mentioned under
of conviction.
prohibited pleadings
The ground is the same, that is,
b. Its purpose is to avoid a miscarriage of
INSUFFICIENCY OF EVIDENCE. justice.
Only available AFTER the presentation c. Proceedings must terminate within 30 days
of the evidence of the plaintiff or from order granting it.
prosecution, as the case may be. d. It may be made motu proprio by the judge
Court may either grant or deny the or upon motion, with hearing in either case.
Demurrer.
Differences More difficult Easier to file 7.J.8 REVISED GUIDELINES ON
to file because because the CONTINUOUS TRIAL (A.M. 15-06-10-SC,
the plaintiff is prosecution is effective September 1, 2017)
only required required to prove
to present his the guilt of accused 7.J.8a In What Cases Applicable (Part I)
case by beyond reasonable
preponderance doubt. 1) All newly-filed criminal cases, including those
of evidence. governed by Special Laws, in the First and

Bar Operations C ommissions 429

 Purple Notes
Remedial Law
Second Level Courts, Sandiganbayan and
Court of Tax Appeals as of effectivity date.
2) Pending criminal cases with respect to the
remainder of the proceedings.
Not Applicable to Summary Procedure
Cases (Part I)
The Revised Guidelines is NOT applicable to
criminal cases under the Rules on Summary
Procedure, UNLESS otherwise specifically
provided therein.
7.J.8b Motions (Part III, 2)
1. Motion for Inhibition – if based on
grounds under Rule 137, it shall be resolved
immediately within two (2) calendar days
from the date of filing.
2. Prohibited Motions – shall be denied
outright before the scheduled arraignment
without need of comment and/or opposition.
The following motions are prohibited:
a. Motion for Judicial Determination of
Probable Cause.
b. Motion for Preliminary Investigation filed
beyond the five (5)-day reglementary
period in inquest proceedings, or when
preliminary investigation is required, or
allowed in inquest proceedings and the
accused failed to participate in the
preliminary investigation despite due
notice.
c. Motion for Reinvestigation of the
prosecutor recommending the filing of
information once the information has
been filed before the court (1) if the
motion is filed without prior leave of
court; (2) when preliminary investigation
is not required, and (3) when the regular
preliminary investigation is required and
has been actually conducted,and the
grounds relied upon are not meritorious.
d. Motion to Quash information when the
found is not one of those under Sec. 3,
Rule 117.
e. Motion for Bill of Particulars that does not
conform to Sec. 9, Rule 116.
430 Center for Legal Education and Research
f. Motion to Suspend Arraignment based on
grounds not under Sec. 11, Rule 116.
g. Petition to Suspend the criminal action
based on prejudicial question, when no
civil case has been filed, pursuant to Sec.
7, Rule 111.
3. Meritorious Motions – those that allege
plausible grounds supported by relevant
documents and/or competent evidence.
a. Motion to Withdraw Information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecutor.
b. Motion to Quash Warrant of Arrest.
c. Motion to Suspend Arraignment based on
unsound mental condition.
d. Motion to suspend proceedings based on
prejudicial question.
e. Motion to Quash Information based on
the ground that the facts charged do not
constitute an offense, lack of jurisdiction,
extinction of criminal action or double
jeopardy.
f. Motion to Discharge Accused as a state
witness.
g. Motion to Quash Search Warrant or to
Suppress Evidence.
h. Motion to Dismiss based on Strategic
Lawsuit Against Public Participation
(SLAPP)
Procedure for Meritorious Motions
i. The comment of the adverse party shall be
filed within a non-extendible period of ten
(10) calendar days from notice/receipt of
the order of the court to file the same.
ii. The court shall resolve the motion within a
non-extendible period of ten (10) calendar
days from the expiration of the ten (10)-
day period, with or without a comment.
iii. The court, at its discretion, may set the
motion for hearing within a non-extendible
period of ten (10) calendar days from the
expiration of the ten (10) calendar days to
file comment, in which case, the same shall
be submitted for resolution after the
termination of the hearing.
 Purple Notes
iv. It shall be resolved within a non-extendible
period of ten (10) calendar days thereafter.
v. Reply and memorandum need not be
submitted.
vi. In case of a motion to discharge accused as
state witness where the prosecution is
required to present evidence in support
thereof, such motion shall be submitted for
resolution from the termination of the
hearing and shall be resolved within a non-
extendible period of ten (10) calendar days
thereafter.
vii. The motion for reconsideration of the
resolution of a meritorious motion shall be
filed within a non-extendible period of five
(5) calendar days from receipt of such
resolution.
viii. The adverse party shall be given an equal
period of five (5) calendar days from
receipt of the motion for reconsideration
within which to submit its comment.
ix. The motion for reconsideration shall be
resolved within a non-extendible period of
five (5) calendar days from the expiration
of the five (5)-day period to submit the
comment.
Note: Motions that do not conform to the
requirements stated above shall be considered
unmeritorious and shall be denied outright.
4. Motion for Postponement
General rule: It is prohibited.
Exceptions: If it is based on:
1) Acts of God;
2) Force majeure; or,
3) Physical inability of the witness to appear
and testify
If the motion is granted based on such
exceptions, the moving party shall be warned
that the presentation of his evidence must still
be finished on the dates previously agreed
upon.
Note: A motion for postponement shall, at all
times, be accompanied by the original receipt
from the Office of the Clerk of Court evidencing
Remedial Law
payment of the postponement fee to be
submitted either:
1) At the time of filing of the said motion; or
2) Not later than the next hearing date.
The Clerk of Court shall not accept the motion
UNLESS accompanied by the original receipt.
Consolidations (Part III, 5)
1. Newly-filed Cases – When newly-filed
criminal cases involving offenses based on the
same facts or forming part of a series of
offenses of similar character are accompanied
by a motion for consolidation filed by the Office
of the Prosecutor, the Executive Judge shall
cause the raffle to only one court which shall
then resolve the motion for consolidation,
preferably on the date of the arraignment and in
the presence of the accused and counsel.
2. Pending Cases with Multiple Accused –
Where a subsequent information is filed
involving an accused who has been subjected to
further investigation by the Office of the
Prosecutor over an incident which has the same
subject matter as a prior information/s against
different accused, such case, if accompanied by
a motion for consolidation from the Office of the
Prosecutor, shall no longer be raffled.
The subsequent case shall be assigned directly
by the Executive Judge to the court where the
earlier case is pending.
If the earlier case is already at the trial stage
and witnesses have been presented, the parties
may be allowed to adopt the evidence so far
presented, without prejudice to additional direct
examination questions and cross-examinations.
7.J.8c Arraignment and Pre-trial (Part III,
8[a])
General Rule
1.For a Detained Accused: Arraignment and pre-
trial shall be set within ten (10) calendar
days from the date of the court‘s receipt of
the case
Bar Operations C ommissions 431
 Purple Notes
Remedial Law
2.For a Non-detained Accused: Arraignment and
pre-trial shall be set within thirty (30)
calendar days from the date the court
acquires jurisdiction either by arrest or
voluntary surrender
Exception: When a shorter period is provided
by special law or Supreme Court Circular.
Note: The court must set the arraignment in
the commitment order, in case of a detainee. On
the other hand, the court must set the
arraignment in the order of approval of bail, in
any other case.
Notice of Arraignment and Pre-trial (Part
III, 8[b])
Notice shall be sent to the:
1. Accused;
2. His/her counsel;
3.Private complainant or complaining law
enforcement agent;
4. Public prosecutor; and
5.Witnesses whose names appear in the
information
Purpose: For plea-bargaining, arraignment and
pre-trial.
Waiver of the Reading of the Information
(Part III, 8[c])
1) May be allowed by the court in multiple
cases
2) Upon personal examination of the accused
3) Upon the full understanding and express
consent of the accused and his/her counsel
4) Such consent shall be expressly stated in
both the minutes/certificate of arraignment
and the order of arraignment
If the accused desires to enter a plea of guilty to
a lesser offense, plea bargaining shall
immediately proceed, provided, the private
offended party in private crimes, or the arresting
officer in victimless crimes, is present to give
his/her consent with the conformity of the public
prosecutor to the plea bargaining. Thereafter,
judgment shall be immediately rendered in the
same proceedings.
2. Plea of Guilty to the Crime Charged in
the Information
General Rule: Judgment shall be immediately
rendered
Exception: Cases involving capital punishment.
3. Where No Plea Bargaining or Plea of
Guilty Takes Place
The court shall immediately proceed with the
arraignment and pre-trial.
The schedule of the trial dates, for both the
prosecution and the accused, shall be
continuous and within the periods provided in
the Regular Rules/Special Rules. The trial dates
may be shortened depending on the numbers of
witnesses to be presented. The court shall
prepare a flowchart to serve as the final
schedule of hearings.

Duty of the court: The court shall explain the

waiver to the accused in the language or dialect
known to him/her, and ensure the accused‘s full
understanding of the consequences of the
waiver before approving the same.

Arraignment Proper (Part III, 8[c])

1. Plea Bargaining

432 Center for Legal Education and Research

 Purple Notes
Remedial Law
SAMPLE OF SCHEDULE OF TRIAL DATES
Trial
A. Regular Rules (3 months)

Memo
Arraignment and Pre-trial
(30
days)
30
days
Decision (60 days
from the last day to
file Memoranda)
Presentation of the
Prosecution‘s and the
Accused‘s Evidence Disposition period
(6 months/180 days) (within 10 months
from the date of
arraignment)

Intellectual Property Rights Cases

Promulgation of Decision
Arraignment and Pre-trial
(90 days from submission
of the casefor decision)
30
days

B. Special Laws/Rules
Trial
(60 days for each
Drug Cases party to present
evidence, or 120
Trial days)
(to be finished not later
than 60 days from filing of
the Information) Memo
(30
days)

Decision Judgment
(15 days from submission (90 days from
of the case for submission of the
resolution) case for decision)

Environmental Cases

Arraignment and Pre-trial

30
days

Bar Operations C ommissions 433

 Purple Notes
Remedial Law
Arraignment and Pre-trial of Cases
Referred to Mediation
Arraignment and Pre-trial
30 days
Mediation
Trial
(6 months/180 days)
Judgment
(90 days from
submission of the
case for decision)
Arraignment and Preliminary Conference
of Mediatable Cases subject to the Rules
on Summary Procedure (Part III, 8[e])
Arraignment and Pre-conference shall
simultaneously held.
The court shall take up all the matters required
under Sec. 14, Rule on Summary Procedure
during the preliminary conference
If the accused pleads guilty to the crime
charged in the information, the process on the
―Plea of Guilty to the Crime Charged‖ shall be
followed (Subheading III, Item no. 8, [d][ii])
If the accused pleads guilty to a lesser offense,
the process on the ―Plea Bargaining except in
Drug Cases‖ shall be followed. (Subheading III,
Item no. 8, [d][i])
If the accused does not enter a plea of guilty,
whether to a lesser offense or to the offense
charged, the court shall immediately proceed
with the arraignment and the preliminary
conference, and thereafter, refer the case to
mediation.
434 Center for Legal Education and Research
Rules on Summary Procedure of Criminal
Cases Referred to Mediation
Arraignment and Pre-Conference
30 days
Mediation
Trial
(60 days)
Judgment
(30 days from
termination of
the hearing)
Conduct of Pre-Trial (Part III, 8[f])
Absence of Parties in the Pre-trial
be
The court shall proceed with the pre-trial
despite the absence of the accused and/or
private complainant provided that:
1) they were duly notified of the same; and,
2) the counsel for the accused, as well as the
public prosecutor, are present.
Proposals for stipulations shall be done with
the active participation of the court itself and
shall not be left alone to the counsels.
The pre-trial order shall immediately be served
upon the parties and counsel on the same day
after the termination of the pre-trial.
Courts must strictly comply with the Guidelines
to be Observed in the Conduct of Pre-Trial
under A.M. 03-1-09-SC
Mediation (Part III, 9)
 Purple Notes
General Rule: Cases below are subject to
mediation on the civil liability.
Exception: When there is prior settlement in
the pre-trial or preliminary conference
1. Crimes where payment may prevent
criminal prosecution or may extinguish
criminal liability, such as violations of: B.P.
22; SSS Law; and, PAG-IBIG Law.
2. Crimes against property under Title 10 of
the RPC, where the obligation may be civil
in nature, such as:
a. Theft
b. Estafa, under Art. 315 (1), except Art.
315 (2) and (3)
c. Other forms of Swindling
d. Swindling of a minor
e. Other Deceits
f. Malicious mischief
3. Crimes against honor where the liability
may be civil in nature, such as:
a. Libel by means of writing or similar
means
b. Threatening to publish and offer to
present such publication for a
compensation
c. Prohibited publication of actsreferred to
in the course of official proceedings
d. Grave slander – of serious and insulting
nature
e. Simple slander – not of a serious and
insulting nature
f. Grave slander by deed – of a serious
nature
g. Simple slander by deed – not of a
serious nature
h. Incriminating innocent person
i. Intriguing against honor
j. Libel under RA 10175 (Cybercrime
Prevention Act of 2012);
4. Criminal negligence cases where the liability
may be civil in nature;
5. Intellectual property rights cases where the
liability may be civil in nature
The referral of the case to for mediation to the
Philippine Mediation Center (PMC) Unit shall be
made only AFTER the conduct of the
arraignment and the pre-trial/preliminary
Remedial Law
conference. The court shall serve the Order of
Referral to the PMC Unit.
The mediation shall be terminated within a non-
extendible period of thirty (30) calendar days
from the date of referral by the court to the
Philippine Mediation Unit (PMC).
After the lapse of the mediation period, or if
mediation fails, trial shall proceed.
Note: Except those cases mentioned above,
criminal cases subject to the Rule of Summary
Procedure shall NOT be referred to mediation.
Bail (Part III, 10)
Petition for bail filed after the filing of the
information shall be set for summary hearing
after arraignment and pre-trial.
Testimony of a witness may be in the form
allowed under ―Form of Testimony‖ (Subheading
III, Item no. 11, [b]), provided, the demeanor of
the witness is not essential in determining
his/her credibility.
Period
General Rule: Petition for bail shall be heard
and resolved within a non-extendible period of
thirty (30) calendar days from the date of the
first hearing.
Exception: Drug cases which shall be heard
and resolved within twenty (20) calendar days,
without need of oral argument and submission
of memoranda.Motion for Reconsideration on
the resolution of petition for bail shall be
resolved within a non-extendible period of ten
(10) calendar days from the date of submission
of the motion.
Evidence in Petition for Bail
The resolution of the petition shall be based
solely on the evidence presented during the bail
proceedings by the prosecution.
Bar Operations C ommissions 435
 Purple Notes
Remedial Law
The prosecution shall present only evidence that
are essential in establishing that the evidence of
guilt is strong.
The accused need NOT present evidence to
contradict or rebut the prosecution‘s
evidence.(A.M. No. 15-06-10-SC, 10(b))
Non-suspension of the Presentation of
Evidence
The court shall NOT suspend the presentation of
the evidence in chief while awaiting resolution of
the petition for bail or the moton for
reconsideration.
Form of Testimony (Part III, 11)
i. For First Level Courts
a) Shall consist of the duly subscribed
written statements given to law enforcers
or peace officers, or the affidavits or
counter-affidavits submitted before the
investigating prosecutor.
b) If such are not available, it shall be in the
form of judicial affidavits, subject to
additional direct and cross-examination
questions.
c) The trial prosecutor may dispense with
the sworn written statements submitted
to the law enforcers or peace officers and
prepare the judicial affidavits of the
affiants or modify or revise the said sworn
statements before presenting it as
evidence.
ii. For Second Level Courts, Sandiganbayan,
and Court of Tax Appeals
 In criminal cases where the demeanor of
the witness is not essential in determining
the credibility of the said witness, and in
criminal cases that are transactional in
character the testimonies of the witnesses
shall:
 Consist of the duly subscribed written
statements given to law enforcers or
peace officers, or the affidavits or
counter-affidavits submitted before the
investigating prosecutor.
436 Center for Legal Education and Research
 If such are not available, it shall be in the
form of judicial affidavits, subject to
additional direct and cross-examination
questions.
In all other cases where the culpability or the
innocence of the accused is based on the
testimonies of the alleged eyewitnesses, the
testimonies of these witnesses shall be in oral
form.
Stipulations (Part III, 12)
Duty of the court
During pre-trial/pre-conference, the court shall
require the parties to enter into stipulations on
the subject of both direct and cross-
examinations of witnesses who have no
personal knowledge of the material facts. This
rule is without prejudice to allowing additional
direct and cross-examination questions.
When Stipulations Cannot be had in Full
The subject of the direct testimony of the said
witnesses should be stipulated upon, without
prejudice to additional direct and cross-
examination questions.
7.J.8d Trial (Part III, 13)
The court shall encourage the accused and the
prosecution to avail of:
1. For the accused – Sec. 12 and 13, Rule 119
on the application for examination of witness
for accused before trial and how it is made.
2. For the prosecution – Sec. 15, Rule 119 on
the conditional examination of witness for
the prosecution.
Absence of Counsel de parte; Effect (Part
III, 13[b])
The hearing shall proceed upon appointment by
the court of a counsel de officio.
Offer of Evidence [Part III, 13(c)]
How Made: Orally (as well as the
comment/objection to the offer of evidence and
the court ruling).
 Purple Notes
When to Make Offer of Evidence,
Comment and Objection Thereto: On the
same day after the presentation of a party‘s last
witness. The opposing party is required to
immediately interpose his/her oral
comment/objection.
The court will then make a ruling on the offer of
evidence in open court. In making the offer, the
counsel shall cite the specific page numbers of
the court record where the exhibits being
offered are found, if attached thereto. The court
shall ensure that all exhibits offered are
submitted to it on the same day of the offer.
When Exhibits are Not Attached to the
Records: The party making the offer must
submit the same during the offer of evidence in
open court.
Demurrer to EvidenceSee: Discussion on Rule
119.
Presentation of Rebuttal and Sur-rebuttal
Evidence (Part III, 13[e])
When the Court Grants the Motion to Present
Rebuttal Evidence
The prosecution shall immediately proceed with
its presentation after the accused had rested
his/her case, and orally rest its case in rebuttal
after the presentation of its last rebuttal
witness.
Thereafter, the accused shall immediately
present sur-rebuttal evidence, if any, and orally
rest the case in sur-rebuttal after the
presentation of its last sur-rebuttal witness.
Thereafter, the court shall submit the case for
decision.
One-day Examination of Witness Rule [Part
III, 13(f)]
A witness has to be fully examined in one (1)
day.
The court shall strictly adhere to this rule.
Lack of Stenographic Notes (Part III, 15)
Remedial Law
The judge shall not defer the submission of the
case for decision on the ground of incomplete or
missing transcript of stenographic notes.
If the case was heard by another judge, not the
judge tasked to write the decision, the latter
shall direct the stenographers concerned to
submit the complete transcripts within thirty
(30) calendar days from the date of his/her
assumption to office.
7.J.8e Promulgation (Part III, 16)
Schedule of Promulgation:
1. Regular Rules (including the
Sandiganbayan and the CTA) = not more
than ninety (90) calendar days from the date
the case is submitted for decision
2. Drug Cases = not more than 15 days from
the date the case is submitted for decision
3. Environmental Cases = not more than 60
days from the date the case is submitted for
decision
4. Intellectual Property Right Cases = not
more than 60 days from the date the case is
submitted for decision
Resolution of Motion for Reconsideration
(MR) of Judgment of Conviction or Motion
for New Trial (MNT)
The MR or MNT filed within fifteen (15) days
from promulgation shall be resolved within a
non-extendible period of ten (10) calendar days
from the submission of the comment of the
prosecution.
With or without comment, the court shall
resolve the motion within the ten (10)-day
period.
Pilot Testing of Hearings of Criminal Cases
Involving Persons Deprived of Liberty
Through Videoconferencing(Administrative
Circular No. 37-2020, April 27, 2020)
Administrative Circular No. 37-2020informs all
litigants, justices, judges and court personnel of
the Judiciary, and members of the Bar of the
pilot testing of the hearings on urgent matters in
Bar Operations C ommissions 437
 Purple Notes
Remedial Law
criminal cases involving Persons Deprived of
Liberty (PDLs) through videoconferencing in
authorized court stations identified by the Office
of the Court Administrator (OCA).
The hearings through videoconferencing shall
cover all PDL‘s and may apply to all stages of
trial of newly filed and pending criminal cases.
These hearings through videoconferencing are
only for pilot testing and apply only during the
period of public health emergency.
7.K. JUDGMENT(Rule 120)
It is the adjudication by the court that the
accused is guilty or not guilty of the offense
charged and the imposition of the proper
penalty and civil liability provided for by law.
(Sec. 1, Rule 120)
Note: It is not necessary that the judge who
tried the case be the same judicial officer to
decide it. It is sufficient that he be apprised of
the evidence already presented by a reading of
the transcript of the testimonies already
introduced, in the same manner as appellate
courts review evidence on appeal(People vs.
Alfredo, G.R. No. 188560, December 15, 2010).
7.K. 1 Requisites of a Judgment: (WriPre-
SiSta)
1. Written in the official language;
2. Personally and directly prepared by the
judge;
3. Signed by the judge; and,
4. Contain a clear and distinct statement of the
fact and the law on which it is based.
If judgment is not put in writing, the remedy is
to file a Petition for Mandamus to compel the
judge to put in writing the decision of the court.
 Mandamus is never available to direct the
exercise of judgment or discretion in a
particular way or the retraction or reversal
of an action already taken in the exercise of
either (Hipos, Sr. vs. Bay, G.R. Nos. 174813-15,
March 17, 2009).
Jurisdictional Requirements Before a
Judgment may be Rendered: (Su-TerP)
438 Center for Legal Education and Research
a) Jurisdiction over the subject matter;
b) Jurisdiction over the territory; and,
c) Jurisdiction over the person of the accused.
(Antiporda, Jr. vs. Garchitorena, G.R. No. 133289,
December 23, 1999)
7.K.2 Contents of Judgment
Contents of Judgment of Conviction(Rule
120, Sec. 2)
1. The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating and mitigating
circumstances attending its commission.
2. The participation of the accused, whether as
principal, accomplice or accessory.
3. The penalty imposed upon the accused.
4. The civil liability or damages caused by the
wrongful act, UNLESS civil action has been
reserved or waived.
Note: the judgment of conviction shall
determine if the act or omission from which the
civil liability might arise did not exist.(Rule 120,
Sec. 2)
 It is an injustice when the penalty and
liability imposed are not commensurate to
the actual responsibility of the offender; for
criminal responsibility is individual and not
collective, and each of the participants
should be liable only for the acts actually
committed by him. The proportion of this
individual liability must be graduated not
only according to the nature of the crime
committed and the circumstances attending
it, but also the degree and nature of
participation of the individual
offender(People vs. Montesclaros, G.R. No.
181084, June 16, 2009).
 There is nothing in the law which permits
courts to impose sentences in the
alternative (Abellana vs. People, G.R. No.
174654, August 17, 2011).
 Aside from the civil indemnity arising from
the crime, costs and incidental expenses of
the suit are part of the judgment and it is
incumbent upon the prevailing party in
whose favor they are awarded to submit
forthwith the itemized bill to the clerk of
 Purple Notes
court (Basilonia vs. Villaruz, G.R. Nos. 191370-
71, August 10, 2015).
 A judgment of conviction based on
circumstantial evidence can be sustained
when the circumstances proved form an
unbroken chain that results to a fair and
reasonable conclusion pointing to the
accused, to the exclusion of all others, as
the perpetrator (People vs. Baron, G.R. No.
185209, June 28, 2010).
Q: In case there is a conflict between the
fallo and the body of decision, which one
should prevail?
A:The general rule is where there is a conflict
between the dispositive portion or the falloand
the body of the decision, the fallo controls.
However, where the inevitable conclusion from
the body of the decision is so clear as to show
that there was a mistake in the dispositive
portion, the body of the decision will prevail
(Hipos, Sr. vs. Bay, G.R. No. 133289, March 17,
2009).
Contents of Judgment of ACQUITTAL(Rule
120, Sec. 2)
Reasonable Doubt- Reasonable doubt is that
doubt engendered by an investigation of the
whole proof and an inability after such
investigation to let the mind rest each upon the
certainty of guilt. Absolute certainty of guilt is
not demanded by the law to convict a criminal
charge, but moral certainty is required as to
every proposition of proof requisite to constitute
the offense. (People vs. Santos, G.R. No. 175593,
October 17, 2007)
Acquittal – a finding of not guilty based on the
merits, that is, the accused is acquitted because
the evidence does not show that his guilt is
beyond reasonable doubt, or a dismissal of the
case after the prosecution has rested its case
upon motion of the accused on the ground that
the evidence fails to show beyond reasonable
doubt that the accused is guilty.
An acquittal of an accused based on reasonable
doubt does not bar the offended party from
Remedial Law
filing a separate civil action based on quasi-
delict unless the judgment includes a declaration
that the facts from which the civil liability might
arise did not exist.(Lumantas vs. Calapiz, G.R. No.
163753, January 15, 2014)
Judgment for Two or More Offenses (Rule
120, Sec. 3)
When two or more offenses are charged in a
single complaint or information, and the accused
fails to object to it before trial, the court may
convict the accused of as many offenses as
charged and proved and impose on him the
penalty for each offense, setting out separately
the findings of fact and law in each offense.
Judgment in case of variance between
allegation and proof (Rule 120, Sec. 4)
General Rule:
An accused can be convicted of an offense only
when it is both charged and proved. If it is not
proved although charged, the accused cannot
be convicted thereof.
Exceptions:
1) Where there is a variance between the
offense charged in the information or
complaint and what is proved; and,
2) The offense as charged is included or
necessarily includes the offense proved.
In case of such variance, the accused shall be
convicted of the offense proved which is
included in the offense charged, or of the
offense charged which is included in the offense
proved.
When Offense Includes or is Included in
Another (Rule 120, Sec. 5)
General Rule: If what is proved by the
prosecution is an offense that is included in the
offense charged in the information, the accused
may validly be convicted of the offense proved.
Exception: Where facts supervened after the
filing of the information, which change the
nature of the offense.
Notes:
Bar Operations C ommissions 439
 Purple Notes
Remedial Law
1) An offense charged necessarily includes
another when some essential elements or
ingredients of the offense charged constitute
the offense proved.
2) When the essential elements or ingredients
of the offense charged constitute or form
part of those constituting the offense proved,
then one offense is included in the other.
An accused cannot be convicted for the
lesser offense necessarily included in the
crime charged if at the time of the filing of
the information the lesser offense has
already prescribed (Francisco vs. CA, G.R. No.
L-45674, May 30, 1983).
7.K.3 Promulgation of Judgment (Rule 120,
Sec. 6)
Promulgation is the official proclamation or
announcement of judgment. It consists of
reading the judgment or sentence in the
presence of the accused and any judge of the
court rendering the judgment. It is the point of
reference when the judgment becomes final.
Rules on Validity of Promulgation of
Judgment
 The judgment must have been rendered
and promulgated during the incumbency of
the judge who signed it.
 The presence of counsel during the
promulgation of judgment is not necessary.
Note:
When the judge is absent or outside of the city,
the clerk of court may promulgate the decision.
The executive judge of the Regional Trial Court
having jurisdiction over the place of confinement
or detention upon request of the court which
rendered the judgment. The court promulgating
the judgment shall have authority to accept the
notice of appeal and to approve the bail bond
pending appeal; provided, that if the decision of
the trial court convicting the accused changed
the nature of the offense from non-bailable to
bailable, the application for bail can only be filed
440 Center for Legal Education and Research
and resolved by the appellate court. (Rule 120,
Sec. 6)
Instances of Promulgation of Judgment in
Absentia (Rule 120, Sec. 6)
Instances when a judgment may be
promulgated even without the personal
presence of the accused: (LiDu)
1. When the judgment is for a light offense, in
which case, the accused‘s
counsel/representative may stand in for him;
and.
2. In cases where despite due notice to the
accused or his bondsman or warden and
counsel, the accused failed to appear at the
promulgation of the decision.
Note: If the judgment is for conviction and the
accused‘s failure to appear is without justifiable
cause, he shall lose the remedies available in
the rules against the judgment and the court
shall order his arrest.
Within 15 days from the promulgation of the
judgment, however, the accused may surrender
and file a motion for leave of court to avail of
said remedies. If his motion is granted, he may
avail of the remedies within 15 days from
notice.
This amplifies the need for the presence of the
accused during the promulgation of a judgment
of conviction, especially if it is for a grave
offense. Obviously, a judgment of conviction
cannot be executed — and the sentence meted
to the accused cannot be served — without his
presence. Besides, where there is no
promulgation of the judgment, the right to
appeal does not accrue (People vs. Jaranilla,
G.R.No. L-28547,February 22, 1974).
Elements for a Valid Promulgation in
Absentia (RecSer)
1.The judgment is recorded in the criminal
docket; and,
2.A copy thereof is served upon the accused in
his last known address or to his
counsel.(Rule 120, Sec. 6)
 Purple Notes
Note: Rendition comes first before
promulgation. Promulgation without rendition is
null and void.
Q: How is the judgment recorded in the
criminal docket in cases of promulgation
in absentia?
A: The recording of judgment in the criminal
docket is substantially complied by furnishing
the clerk of court with the copy of the judgment.
In the absence of such compliance, there can be
no valid promulgation. Without the same, the …
decision could not attain finality and become
executory. This means that the 15-day period
within which to interpose an appeal did not even
commence(Pascua vs. CA, G.R. No. 140243,
December 14, 2000).
Modification of Judgment (Rule 120, Sec. 7)
Upon motion of the accused, a judgment of
conviction may be modified or set aside by the
court before it has become final or before an
appeal has been perfected.
Q: Is the remedy of annulment of
judgment available in criminal cases?
A: The remedy of annulment of judgment
cannot be availed of in criminal cases, thus
Section 1 of Rule 47 of the Rules of Court limits
the scope of the remedy to civil actions. The
remedy cannot be resorted to when the RTC
judgment being questioned was rendered in a
criminal case. The 2000 Revised Rules of
Criminal Procedure itself does not permit such
recourse, for it excluded Rule 47 from the
enumeration of the provisions of the 1997
Revised Rules of Civil Procedure which have
suppletory application to criminal cases. (Llamas
vs. CA, G.R. No. 149588, September 29, 2009).
7.K.4 When A Judgment Becomes Final
(LapSer-WaPro)
1. When the period for perfecting an appeal has
lapsed.
2. When the accused commences to serve
sentence.
Remedial Law
3. When the accused expressly waives in
writing his right to appeal.
4. When the accused applies for probation,
thereby waiving the right to appeal.(Rule 120,
Sec. 7)
Note: A judgment of acquittal becomes final
immediately after promulgation and cannot be
recalled for correction or amendment.
1. The prosecutor cannot ask for the
modification or setting aside of a judgment
of conviction because the rules clearly
provide that a judgment of conviction may
be modified or set aside by the court
rendering upon motion of the accused.
2. The trial court can validly amend the civil
portion of its decision within 15 days from
promulgation thereof even though the appeal
had in the meantime already been perfected
by the accused from judgment of conviction.
Entry of Judgment (Rule 120, Sec. 8)
After a judgment has become final, it shall be
entered in accordance with Rule 36.
The final judgment of the court is carried into
effect by a process called ―mittimus‖.
Note: Mittimus or Commitment Order is a
process issued by the court after conviction to
carry out the final judgment, such as
commanding a prison warden to hold the
accused in accordance with the terms of the
judgment. (Circular No. 42-93, August 27, 1993)
Finality of Judgment vs. Entry of
Judgment
 The finality of the judgment is entirely
distinct from its entry and the delay in the
latter does not affect the effectivity of the
former which is counted from the expiration
of the period to appeal(Munnez vs. CA, G.R.
No. L-46040, July 23, 1987).
 Findings of the trial courts carry great
weight and respect, and, generally,
appellate courts will not overturn said
findings unless the trial court overlooked,
misunderstood or misapplied some facts or
Bar Operations C ommissions 441
 Purple Notes
Remedial Law
circumstances of weight and substance
which will alter the assailed decision or
affect the result of the case(People vs.
Monteclaros, G.R. No. 181084, June 16, 2009).
7.L. NEW TRIAL OR RECONSIDERATION
(Rule 121)
New trial is rehearing of a case already
decided but beforethe judgment of conviction
therein rendered has become final, whereby
errors of law or irregularities are expunged from
the record, or new evidence is introduced, or
both steps are taken.
A motion for new trial or reconsideration should
be filed with the trial court within 15 days from
the promulgation of the judgment.
Note: The filing of the motion for new trial or
reconsideration interrupts the period for
perfecting an appeal from the time of its filing
until notice of the order overruling the motion
shall have been served upon the accused or his
counsel (Rule 121, Sec. 6).
The Trial Court Loses Jurisdiction Over its
Sentence even BEFORE the Lapse of
Fifteen (15) days when:
1. Defendant voluntarily submits to the
execution of the sentence.
2. The defendant perfects his appeal. The
moment the appeal is perfected, the court a
quo loses jurisdiction over it, EXCEPT for the
purpose of correcting clerical errors.
7.L.1 Grounds for New Trial (Rule 121, Sec. 2)
(ErNe)
 The first ground for new trial requires that
the errors or irregularities prejudicial to the
substantial rights of the accused must have
been committed during the trial. The
phrase ―during the trial‖ refers to that
period from arraignment to the rendition of
judgment and not only to the trial proper,
and considers, as errors committed during
such period, the holding of the trial over
the objection of the accused despite the
lack of preliminary investigation, or where
442 Center for Legal Education and Research
the accused was denied counsel, or where
such counsel was not afforded at least two
(now 15) days to prepare for trial (People
vs. Tamayo, supra; People vs. Enriquez, supra;
Regalado, p. 602 11th edition).
 Mistakes of attorneys as to the competency
of a witness; the sufficiency, relevancy or
irrelevancy of certain evidence, the proper
defense, or the burden of proof; and failure
to introduce certain evidence, to summon
witness and to argue the case are not
proper grounds for a new trial.
Exceptions:
(1) the counsel‘s mistake is so great and
serious that the client is prejudiced
and denied his day in court; or
(2) the counsel is guilty of gross
negligence resulting in the client‘s
deprivation of liberty or property
without due process of law(Ceniza-
Manantanan vs. People of the Philippines,
G.R. No. 156248, August 28, 2007).
 In the case of newly discovered evidence as
a ground for new trial, it should be
established that:
1. That the evidence was discovered after
trial;
2. That such evidence could not have been
discovered and produced at the trial
even with the exercise of reasonable
diligence; and,
3. That the evidence is of such a weight
that it would probably change the
judgment if admitted. (People vs.
Mangulabnan, G.R. No. L-8919, September
28, 1956).
 Evidence is considered material if there is
reasonable likelihood that the testimony or
evidence could have produced a different
result and the accused would have been
acquitted (Tan Ang Bun vs. CA, G.R. No. 47747,
February 15, 1990).
 The decision sought to be reviewed in this
petition for the issuance of a writ of habeas
corpus has long attained finality and entry
of judgment had already been made, upon
examination of the evidence presented by
 Purple Notes
Remedial Law
the petitioner, the court held that the DNA  While the rule requires that an affidavit of
evidence does not fall within the statutory merits be attached to support a motion for
or jurisprudential definition of ―newly new trial based on newly discovered
discovered evidence‖ (De Villa vs. Director of evidence, yet the defect of lack of it may be
New Bilibid Prisons, G.R. No. 158802, November cured by testimony under oath of the
17, 2004). defendant at the hearing of the motion
(Paredes vs. Borja, G.R. No. L-15559, November
7.L.2 Grounds for Reconsideration (Rule 121, 29, 1961).
Sec. 3)  The threshold question in resolving a motion
for new trial based on newly discovered
1. Errors of law in the judgment evidence is whether the [proffered]
2.Errors of fact in the judgment evidence is in fact a "newly discovered
evidence which could not have been
Civil Action Criminal Action discovered by due diligence."
NEW TRIAL The question of whether evidence is newly
discovered has two aspects: a temporal
a) Fraud, accident,  Errors of law or one, i.e., when was the evidence
mistake or irregularities
discovered, and a predictive one, i.e.,
excusable neglect committed during trial;
(FAME);  Newly-discovered when should or could it have been
b) Newly Discovered Evidence. discovered. It is to the latter that the
Evidence. requirement of due diligence has relevance.
We have held that in order that a particular
RECONSIDERATION piece of evidence may be properly regarded
as newly discovered to justify new trial,
a) Award of a) Errors of law in the what is essential is not so much the time
excessive judgment; when the evidence offered first sprang into
damages; b) Errors of fact in the existence nor the time when it first came to
b) Insufficiency of judgment.
the knowledge of the party now submitting
evidence;
c) Decision or final it; what is essential is that the offering party
order is contrary had exercised reasonable diligence in
to law. seeking to locate such evidence before or
during trial but had nonetheless failed to
secure it(Ydiernasvs.Tangco-Gabaldon, G.R. No.
7.L.3 Requisites BEFORE a New Trial may 178925, June 1, 2011).
be Granted on the Ground of Newly-
Discovered Evidence(Rule 121, Sec. 4) 7.L.4 Effects of Granting a New Trial or
Reconsideration (Sec. 6, Rule 121)
1. It must be in writing.
2. It must be filed with the court. When a new trial is granted on the ground of:
3. It must state the grounds on which it is
based. 1. Errors of law or irregularities
4. If the motion for new trial is based on newly committed during the trial – all
discovered evidence, it must be supported by proceedings and evidence not affected by
the affidavits of the witness by whom such the commission of such errors and
evidence is expected to be given, or duly irregularities shall stand, BUT those affected
authenticated copies of documents which it is thereby shall be set aside and taken anew.
proposed to introduce in evidence. The court may, in the interest of justice,
5. Notice of the motion for new trial or allow the introduction of additional evidence.
reconsideration shall be given to the fiscal. 2. Newly discovered evidence – the
evidence already taken shall stand, and the
newly discovered and such other evidence as

Bar Operations C ommissions 443

 Purple Notes
Remedial Law
the court may, in the interest of justice, allow
to be introduced, shall be taken and
considered together with the evidence
already in the record.
• The concept of newly-discovered evidence is
applicable only when a litigant seeks a new
trial or the re-opening of the case in the trial
court. The first guideline is to restrict the
concept of newly-discovered evidence to only
such evidence that can satisfy the following
requisites, namely: (1) the evidence was
discovered after trial; (2) such evidence
could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence; (3) the evidence is
material, not merely cumulative,
corroborative, or impeaching; and (4) the
evidence is of such weight that it would
probably change the judgment if admitted
(Ladines vs. People, G.R. No. 167333, January 11,
2016).
• In all cases, when the court grants new trial
or reconsideration, the original judgment
shall be set aside and a new judgment
rendered accordingly (Rule 121, Sec. 6).
• The effect of the granting of a new trial is
not to acquit the accused of the crime of
which the judgment finds him guilty, but
precisely to set aside said judgment so that
the case may be tried de novo as if no trial
had been conducted before (Rule 37, Sec. 6).
• An error or mistake committed by a counsel
in the course of judicial proceedings is NOT
a ground for new trial (Briones vs. People,
G.R. No. 156009, June 5, 2009).
• Evidence, to be considered newly
discovered, must be one that could not, by
the exercise of due diligence, have been
discovered before the trial in the court
below. Movant failed to show that the
defense exerted efforts during the trial to
secure testimonies from police officers like
Jurado, or other persons involved in the
investigation, who questioned or objected
to the apprehension of the accused in this
case. Hence, the belatedly executed
affidavit of Jurado does not qualify as newly
discovered evidence that will justify re-
opening of the trial and/or vacating the
444 Center for Legal Education and Research
judgment (Lumanog vs. People, G.R. No.
182555, G.R. No. 185123, G.R. No. 187745,
September 7, 2010).
• Unlike the rule in Civil Cases, the remedy of
the aggrieved party being appeal in due
time, such an order rendered in Criminal
Cases is also interlocutory BUT is
controllable by certiorari or prohibition at
the instance of the prosecution, as the new
trial might result in a judgment of acquittal
from which the prosecution can no longer
appeal (People vs. Bocar, supra; People et al.
vs. CA, L-45364, August 6, 1979).
• Although the documents offered by
petitioners are strictly not newly discovered,
it appears to us that petitioners were
mistaken in their belief that its production
during trial was unnecessary. xxx In this
instance, we are inclined to give a more
lenient interpretation of Rule 121, Sec. 2 on
new trial in view of the special
circumstances sufficient to cast doubt as to
the truth of the charges against petitioners.
The situation of the petitioners is peculiar,
since they were precluded from presenting
exculpatory evidence during trial upon the
honest belief that they were being tried for
nonpayment of RATA under the 1999
budget.
• Nevertheless, they deserve a chance to
prove their innocence. This opportunity
must be made available to the accused in
every possible way in the interest of justice.
A remand of the case for a new trial is in
order (Estino vs. People, G.R. Nos. 163957-58,
April 7, 2009).
Q: Does an erroneous rejection of
evidence presented justify a new trial?
A: An erroneous admission or rejection of
evidence by the trial court is not a ground for a
new trial or reversal of the decision if there are
other independent evidence to sustain the
decision, or if the rejected evidence, if it had
been admitted; would not have changed the
decision(People vs. Bande, G.R. No. 26335,March 3,
1927).
Note: In trial courts, a second motion for
reconsideration of a final order or judgment is
not allowed (Par. 4, Interim Rules and Guidelines).
This rule has been adopted in civil actions (Rule
 Purple Notes
Remedial Law
37, Sec. 5).In cases covered by the Rules on Obviously, the new fifteen (15)-day period
Summary Procedure, a motion for may be availed of only if either motion is
reconsideration is prohibited(Sec. 15 [c]). filed; otherwise, the decision becomes final
and executory after the lapse of the original
MOTION FOR NEW MOTION FOR NEW appeal period provided in Rule 41 (Neypes vs.
TRIAL IN CRIMINAL TRIAL IN CIVIL CA, G.R. 141524, September 14, 2005).
CASES CASES
The errors of law or FAME, which ordinary
irregularities prejudicial prudence could not
Note: The Neypes ruling shall not be applied
to the substantial rights have guarded against where no motion for new trial or motion for
of the accused have been and by reason of which reconsideration has been filed in which case the
committed during the such aggrieved party 15-day period shall run from notice of the
trial. has probably been judgment.
impaired in his rights.
(Rule 37, Sec. 1) The fresh period rule does not refer to the
The new and material Newly discovered period within which to appeal from the order
evidence has been evidence, which the denying the motion for new trial because the
discovered which the accused could not, with
order is not appealable under Section 9, Rule
accused could not, with reasonable diligence,
reasonable diligence, have discovered and 37. The non-appealability of the order of denial
have discovered and produced at the trial, is also confirmed by Section 1(a), Rule 41,
produced at the trial and and which if presented which provides that no appeal may be taken
which if introduced and would probably alter from an order denying a motion for new trial or
admitted would probably the result. a motion for reconsideration.
change the judgment.
The NeypesDoctrine applies to the following:
Application of Neypes Doctrine in Criminal
Cases 1. Rule 40 governing appeals from MTC to RTC;
2. Rule 41 governing appeals from the RTC;
Q: Does the Neypes Rule find any 3. Rule 42 on petitions for review from the RTC
application in Criminal cases? to the CA;
4. Rule 43 on appeal from quasi-judicial
A: Yes. While Neypes involved the period to agencies to the CA; and,
appeal in civil cases, the Court‘s pronouncement 5. Rule 45 governing appeals by certiorari to
of a "fresh period" to appeal should equally the SC.
apply to the period for appeal in criminal cases
under Section 6 of Rule 122 of the Revised 7.M. APPEALS (Rules 122 to 125)
Rules of Criminal Procedure(Yu vs. Judge Samson,
G.R. No. 170979, February 9, 2011). APPEAL (Rule 122)

• If the motion is denied, the movants has a
fresh period of fifteen (15) days from receipt
or notice of the order denying or dismissing
the motion for reconsideration within which
to file a notice to appeal.
• This new period becomes significant if either
a motion for reconsideration or a motion for
new trial has been filed but was denied or
dismissed. X xx Accordingly, this rule was
adopted to standardize the appeal periods
provided in the Rules to afford fair
opportunity to review the case and, in the
process, minimize errors of judgment.
Who may appeal(Rule 122, Sec. 1)
Any party may appeal from judgment or final
order, UNLESSthe accused will be placed in
double jeopardy.
Appeal – a proceeding for review by which the
whole case is transferred to a higher court for a
final determination.
Final Judgment – a judgment which would
become final if no appeal is taken.

Bar Operations C ommissions 445

 Purple Notes
Remedial Law
Final Order – one which disposes of the whole
subject matter or terminates a particular
proceeding or action, leaving nothing to be done
but to enforce by execution of what has been
determined.
Interlocutory Order – does not dispose of a
case completely, but leaves something more to
be done on the merits.(Banares vs. Balising, G.R.
No.132624, March 13, 2000)
 The disallowance of the notice of appeal
signifies the disallowance of the appeal
itself. A petition for review under Rule 45 of
the Rules of Court is a mode of appeal of a
lower court‘s decision or final order direct to
the Supreme Court. However, the
questioned Order denying her notice of
appeal is not a decision or final order from
which an appeal may be taken. The Rules of
Court specifically provides that no appeal
shall be taken from an order disallowing or
dismissing an appeal. Rather, the aggrieved
party can elevate the matter through a
special civil action under Rule 65. Thus, in
availing of the wrong mode of appeal in this
petition under Rule 45 instead of the
appropriate remedy of Rule 65, the petition
merits an outright dismissal(Macapagal vs.
People, G.R. No. 193217, February 26, 2014).
7.M.1 Effect of an Appeal
An appeal in a criminal case opens the whole
case for review and this includes the review of
the penalty, indemnity, and the damages
involved. Consequently, on appeal, the
appellate court may increase the penalty,
indemnity, or the damages awarded by the trial
court, although the offended party had not
appealed from said award, and the party who
sought a review of the decision was the
accused.
 An appeal throws open the entire case for
review and may result in the increase of the
penalty imposed by the trial court (Mercado
vs. People, G.R. No. 149375, November 26,
2002; People vs. Morales, G.R. No. 172873,
March 19, 2010).
446 Center for Legal Education and Research
Instances When Appeal DOES NOT Put the
Accused in Double Jeopardy
1. If the dismissal is made upon motion, or with
the express consent of the accused;
2. If the dismissal is not an acquittal or based
upon consideration of the evidence or of the
merits of the case; or,
3. If the question to be passed upon by the
appellate court is purely legal so that the
case should be remanded to the court of
origin for it to determine the guilt or
innocence of the accused.(People vs. Villalon,
G.R. No. 43659, December 21, 1990)
General Rule: A private prosecutor in a
criminal case has no authority to act for the
People of the Philippines before a court on
appeal. It is the government‘s counsel, the
Solicitor General, who appears in criminal cases
or their incidents before the Supreme Court. At
the very least, the Provincial Fiscal himself, with
the conformity of the Solicitor General, shall act
for the People of the Philippines.
Exception: The civil award in a criminal case
may be appealed by the private prosecutor on
behalf of the offended party or his successors.
7.M.2 Where to Appeal(Rule 122, Sec. 2)
1. RTC – In cases decided by the MeTC, MTCC,
MTC, MCTC;
2. CA or SC – decisions by the RTC, in the
proper cases provided by law;
3. SC – in cases decided by the CA and the
Sandiganbayan.
7.M.3 How Appeal Taken (Rule 122, Sec. 3)
Appeal to the RTC, or to the CA in cases decided
by the RTC in exercise of its original jurisdiction
a) By notice of appeal;
b) Filed with the court which rendered the
judgment or final order appealed from; and,
c) By serving a copy thereof to the adverse
party.
Appeal to the CA in cases decided by the RTC in
the exercise of its appellate jurisdiction shall be
by petition for review under Rule 42.
 Purple Notes
Appeal in cases where the penalty imposed by
the RTC is reclusion perpetua, life imprisonment
or where a lesser penalty is imposed for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for which
the penalty of death, reclusion perpetua, or life
imprisonment is imposed
1. By notice of appeal to the CA;
2. Filed with the court which rendered the
judgment or final order appealed from; and
3. By serving a copy thereof to the adverse
party.
Note: Appeals from the Sandiganbayan to the
Supreme Court on pure questions of law,
EXCEPT cases where the penalty imposed is
reclusion perpetua, life imprisonment or death
shall be made by Petition for Review on
Certiorari.(Rule 45, Sec. 1)
Service of Notice of Appeal, How Made
(Rule 122, Sec4)(ParCo-ReSu)
1. Upon the adverse party or his counsel;
2. By registered mail; or
3. By substituted service.
Waiver of Notice (Rule 122, Sec. 5)
The appellee may waive his right to a notice
that an appeal has been taken. The appellate
court may, in its discretion, entertain an appeal
notwithstanding failure to give such notice if the
interests of justice so require.
When Appeal to be taken (Rule 122, Sec. 6)
An appeal must be taken within 15 days from
promulgation of the judgment or from notice of
the final order appealed from.
The period for appeal is interrupted from the
time the motion for new trial is filed up to the
receipt by the accused of the notice of the order
―overruling the motion.‖
Appeal to the Regional Trial Courts (Rule
122, Sec. 9)
Remedial Law
1. Transmittal of Original Records-Within 5
days from perfection of the appeal, the clerk
of court shall transmit the original record to
the appropriate Regional Trial Court.
2. Notice to the Parties-Upon receipt of the
complete record of the case, transcripts and
exhibits, the clerk of court of the Regional
Trial Court shall notify the parties of such
fact.
3. Submission of Memoranda or Briefs-
Within 15 days from receipt of said notice,
the parties may submit memoranda or briefs,
or may be required by the RTC to do so.
4. Decision-After the submission of such
memoranda or briefs, or upon the expiration
of the period to file the same, the RTC shall
decide the case on the basis of the entire
record of the case and of such memoranda
or briefs as may have been filed.
7.M.4 Effect of Appeal by any of Several
Accused (Rule 122, Sec. 11)
1. An appeal taken by one or more of several
accused shall not affect those who did not
appeal, EXCEPT insofar as the judgment of
the appellate court is favorable and
applicable to the latter.
2. The appeal of the offended party from the
civil aspect shall not affect the criminal
aspect of the judgment or order appealed
from.
3. Upon perfection of the appeal, the execution
of the judgment or final order appealed from
shall be stayed as to the appealing party.
(People vs. Mateo, G.R. Nos. 147678-87, July 7,
2004)
 While the Fundamental Law requires a
mandatory review by the Supreme Court of
cases where the penalty imposed is reclusion
perpetua, life imprisonment, or death,
nowhere, however, has it proscribed an
intermediate review. If only to ensure utmost
circumspection before the penalty of death,
reclusion perpetua, or life imprisonment is
imposed, the Court now deems it wise and
compelling to provide in these cases a review
by the Court of Appeals before the case is
elevated to the Supreme Court. Where life
and liberty are at stake, all possible avenues
Bar Operations C ommissions 447
 Purple Notes
Remedial Law
to determine his guilt or innocence must be
accorded an accused, and no care in the
evaluation of the facts can ever be overdone.
A prior determination by the Court of Appeals
on, particularly, the factual issues, would
minimize the possibility of an error of
judgment. If the Court of Appeals should
affirm the penalty of death, reclusion
perpetua, or life imprisonment, it could then
render judgment imposing the corresponding
penalty as the circumstances so warrant,
refrain from entering judgment and elevate
the entire records of the case to the
Supreme Court for its final disposition (People
vs. Mateo, G.R. Nos. 147678-87, July 7, 2004).
Q: Is the appellate court bound by the
findings of lower court?
A: The findings of the trial courts carry great
weight and respect and, generally, appellate
courts will not overturn said findings unless
the trial court overlooked, misunderstood or
misapplied some facts or circumstances of
weight and substance which will alter the
assailed decision or affect the result of the
case. The rule finds an even more stringent
application where the said findings are
sustained by the Court of Appeals (People vs.
Tampus and Montesclaros, G.R. No. 181084, June
16, 2009).
Withdrawal of Appeal
The RTC, MeTC, MCTC, MTC, MTCC, as the case
may be, may allow the appellant to withdraw his
appeal before the record has been forwarded by
the clerk of court to the proper appellate court
as provided in Section 8, in which case the
judgment shall become final. This is
notwithstanding the perfection of the appeal.
The RTC may, in its discretion allow the
appellant from the judgment of a lower court to
withdraw his appeal, provided, a motion to that
effect is filed before the rendition of the
judgment in the case on appeal, in which case
the judgment of the court of origin shall become
final and the case shall be remanded to the
448 Center for Legal Education and Research
latter court for the execution of judgment (Rule
122, Sec. 12).
Q:Is there such an implied waiver of
appeal?
A: For instance, by escaping prison, accused-
appellant impliedly waived his right to appeal.
The accused cannot be accorded the right to
appeal unless he voluntarily submits to the
jurisdiction of the court or is otherwise arrested
within 15 days from notice of the judgment
against him. While at large, he cannot seek
relief from the court, as he is deemed to have
waived the appeal. Thus, having escaped from
prison or confinement, he loses his standing in
court; and unless he surrenders or submits to its
jurisdiction, he is deemed to have waived any
right to seek relief from the court. (People vs.
Taruc, G.R. No. 185202, February 18, 2009)
Appointment of Counsel de officio for
Accused on Appeal
It shall be the duty of the clerk of court of the
trial court upon filing of a notice of appeal:
1. To ascertain from the appellant, if confined
in prison, whether he desires the Regional
Trial Court, Court of Appeals or the Supreme
Court to appoint a counsel de officio to
defend him.
2. To transmit with the record on a form to be
prepared by the clerk of court of the
appellate court, a certificate of compliance
with this duty and of the response of the
appellate to his inquiry.
7.M.5 GROUND FOR DISMISSAL OF
APPEAL
The Court may dismiss the petition if it finds the
same to be: (MeDeUn)
1. Patently without merit;
2. Prosecuted manifestly for delay; or
3. The questions raised therein are too
unsubstantial to require consideration(Rule
45, Sec. 5)
PROCEDURE IN THE MUNICIPAL TRIAL
COURTS (Rule 123)

Uniform Procedure
General Rule: The procedure to be observed in
the MeTC, MTC and MCTC shall be the same as
in the RTCs.
Exception: Where a particular provision applies
only to either of said courts and in criminal
cases governed by the Revised Rule on
Summary Procedure.
PROCEDURE IN THE COURT OF APPEALS
(Rule 124)
Appointment of Counsel de oficio for the
Accused (Rule 124, Sec. 2)
The clerk of court of the Court of Appeals shall
designate a counsel de officio if it appears from
the record of the case as transmitted that:
1. The accused is confined in prison;
2. The accused is without counsel de parte on
appeal; or,
3. The accused has signed the notice of appeal
himself.
Note: An appellant who is not confined in
prison may, upon request, be assigned a
counsel de officio within 10 days from receipt of
the notice to file brief and he establishes his
right thereto.
Dismissal of Appeal for Abandonment or
Failure to Prosecute Grounds (Rule 124, Sec.
8)
a) Appellant fails to file his brief within the time
prescribed by this Rule, except where the
appellant is represented by a counsel de
officio;
b) Appellant escapes from prison
confinement;
c) Appellant jumps bail; or,
d) Appellant flees to a foreign country during
the pendency of the appeal.
� In case the accused fails to appear at the
scheduled date of promulgation of judgment
despite notice, the promulgation shall be
made by recording the judgment in the
criminal docket and serving him a copy
thereof at his last known address or thru his
Purple Notes
Remedial Law
counsel. If the judgment is for conviction and
the failure of the accused to appear was
without justifiable cause, he shall lose the
remedies available in these Rules against the
judgment and the court shall order his arrest.
Within fifteen (15) days from promulgation of
judgment, however, the accused may
surrender and file a motion for leave of court
to avail of these remedies. He shall state the
reasons for his absence at the scheduled
promulgation and if he proves that his
absence was for a justifiable cause, he shall
be allowed to avail of said remedies within
fifteen (15) days from notice(People vs. Taruc,
G.R. No. 185202, February 18, 2009).
Judgment NOT to be Reversed or Modified
EXCEPT for Substantial Error (Rule 124, Sec.
10)
No judgment shall be reversed or modified
unless, the Court of Appeals, after an
examination of the record and of the evidence
adduced, is of the opinion that an error was
committed which injuriously affected the
substantial rights of the appellant.
Scope of Judgment (Rule 124, Sec. 11)
The Court of Appeals may:
1. Reverse, affirm or modify the judgment;
2. Increase or reduce the penalty imposed by
the trial court;
3. Remand the case to the Regional Trial Court
for new trial or retrial; or,
4. Dismiss the case.
Other Powers of the Court of Appeals (Rule
124, Sec. 12)
or
1. Try cases and conduct hearings;
2. Receive evidence;
3. Perform all acts necessary to resolve factual
issues raised in cases falling under its original
and appellate jurisdiction; and,
4. Grant and conduct new trials or further
proceedings.
Certification or Appeal of Case to the
Supreme Court (Rule 124, Sec. 13)
Bar Operations C ommissions 449
 Purple Notes
Remedial Law
Where the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty it shall –
1.Render judgment; and,
2. Enter judgment imposing such penalty.
Note: Such judgment may be appealed to the
SC by notice of appeal filed with the CA.
Motion for New Trial (Rule 124, Sec. 14)
a) Period for Filing: At any time after the
appeal from the lower court has been
perfected and before the judgment of the
Court of Appeals convicting the appellant
becomes final.
b) Ground: Newly-discovered evidence
material to his defense.
c) If granted, the CA may conduct the new trial
or may refer it to the court of origin.
Motion for Reconsideration (Rule 124, Sec.
16)
A motion for reconsideration shall be filed:
1. Within 15 days from notice of the decision or
final order of the Court of Appeals;
2. With copies thereof served upon the adverse
party; and,
3. Setting forth the grounds in support thereof.
• The mittimus shall be stayed during the
pendency of the motion for
reconsideration.
• No party shall be allowed a second
motion for reconsideration of a judgment
or final order (Poliand Industrial Ltd. v.
National Development Co., G.R. No. 143866.
August 22, 2005).
General Rule: The statutory requirement that
―when no motion for reconsideration is filed
within the reglementary period, the decision
attains finality and becomes executory in due
course‖ must be STRICTLY ENFORCED as they
are considered indispensable interdictions
against needless delays and for orderly
discharge of judicial business.
450 Center for Legal Education and Research
The purposes for such statutory requirement are
two-fold:
a) to avoid delay in the administration of justice
and thus, procedurally, to make orderly the
discharge of judicial business; and,
b) to put an end to judicial controversies, at the
risk of occasional errors, which are precisely
why courts exist.
Controversies cannot drag on indefinitely. The
rights and obligations of every litigant must not
hang in suspense for an indefinite period of
time.
Exceptions: When substantial justice and
equity considerations warrant the giving of due
course to an appeal by suspending the
enforcement of statutory and mandatory rules
of procedure.(Ginete vs. Court of Appeals, G.R. No.
127596, September 24, 1998)
Certain elements are considered for the appeal
to be given due course, such as:
1. The existence of special or compelling
circumstances;
2. The merits of the case;
3. A cause not entirely attributable to the fault
or negligence of the party favored by the
suspension of the rules;
4. Lack of any showing that the review sought
is merely frivolous and dilatory; and,
5. The other party will not be unduly prejudiced
thereby (Guasch vs. Dela Cruz, G.R. No. 176015,
June 16, 2009).
Probation
 The Probation Law never intended to deny
an accused his right to probation through no
fault of his. The underlying philosophy of
probation is one of liberality towards the
accused. Such philosophy is not served by a
harsh and stringent interpretation of the
statutory provisions (Colinares vs. People, G.R.
No. 182748, December 13, 2011).
 Purple Notes
Illustrative Case
Facts: The accused was charged with frustrated
homicide and was found guilty thereof and
sentenced to suffer imprisonment from 2 years
and 4 months of prisioncorreccional, as
minimum, to 6 years and 1 day of prision
mayor, as maximum. Since the maximum
probationable imprisonment under the law was
only up to 6 years, accused did not qualify for
probation. Thus, he appealed to the CA invoking
self-defense and alternatively, seeking
conviction for the lesser crime of attempted
homicide with the consequent reduction of the
penalty imposed on him. The CA affirmed the
RTC decision. Accused then went to the SC,
which found that he was guilty of the lesser
crime of attempted homicide with the imposable
penalty of imprisonment of 4 months of arresto
mayor, as minimum, to 2 years and 4 months of
prisioncorreccional, as maximum.
Issue: Whether or not the accused could still
avail of probation in view of the reduction of the
penalty
Ruling: The Court‘s finding that accused was
guilty, not of frustrated homicide but only of
attempted homicide, is an original conviction
that, for the first, time imposes on him a
probationable penalty. Had the RTC done him
right from the start, it would have found him
guilty of the correct offense and imposed on him
the right penalty of 2 years and 4 months as
maximum. This would have afforded the
accused the right to apply for probation
(Colinares vs. People, G.R. No. 182748, December 13,
2011).
PROCEDURE IN THE SUPREME COURT (Rule
125)
Uniform Procedure (Rule 125, Sec. 1)
General Rule: The procedure in the SC in
original and in appealed cases shall be the same
as in the CA.
Exceptions: If otherwise provided by:
1) The Constitution; or
2) The law.
Remedial Law
Review of Decisions of the Court of
Appeals (Rule 125, Sec. 2)
The procedure for the review by the Supreme
Court of decisions in criminal cases rendered by
the Court of Appeals shall be the same as in civil
cases.
Decision If Opinion is Equally Divided (Rule
125, Sec. 3)
a) When the Supreme Court en banc is equally
divided in opinion or the necessary majority
cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon.
b) If no decision is reached after re-
deliberation, the judgment of conviction of
lower court shall be reversed and the
accused acquitted.
7.N. SEARCH AND SEIZURE(Rule 126)
Search warrantis an order in writing issued in
the name of the People of the Philippines,
signed by a judge and directed to a peace
officer, commanding him to search for personal
property described therein and bring it before
the court. (Rule 126, Sec. 1)
Search warrants are in the nature of criminal
process and may be invoked only in furtherance
of public prosecutions. They are also in the
nature of an interlocutory character, because it
leaves something more to be done, the
determination of the guilt of the accused.
Q: Who is vested with authority to issue a
search warrant?
A: The power to issue a search warrants is
exclusively vested with the trial judges in the
exercise of their judicial functions (Skechers, USA
vs. Inter Pacific Industrial Trading Corporation,G.R.
No. 164321, November 30, 2006).
7.N.1 Nature of Search Warrant
1) Search warrants are in the nature of criminal
process akin to a writ of discovery and may
be invoked only in furtherance of public
prosecutions.
Bar Operations C ommissions 451
 Purple Notes
Remedial Law
2) Search warrants have no relation to civil region where the crime was committed if the
process or trials. place of the commission of the crime is
3) They are not available to individuals in the known, or any court within the judicial region
course of civil proceedings. where the warrant shall be enforced.
4) It is not for the maintenance of any mere 3. If the criminal action has already been filed,
private right. the application shall only be made in the
5) It is interlocutory in character – it leaves court where the criminal action is pending.
something more to be done, the
determination of the guilt of the  If the accused committed a continuing
accused(Riano, Criminal Procedure, 2016 Edition, offense, a search warrant may be applied
p. 253-254). for in any court where any element of the
alleged offense was committed (Sony
7.N.2 Distinguished from Warrant of Computer Entertainment, Inc. vs. Evergreen
Arrest Incorporated G.R. No. 161823, March 22, 2007).

WARRANT OF ARREST SEARCH WARRANT Requisites for Issuing Search Warrant (Rule
Preliminary examination leads to its issuance or non- 126, Sec. 3) (ProDEx-DeP)
issuance.
Both rendered by the judge. 1) The warrant must be issued upon probable
For the purpose of taking For the purpose of cause;
a person into the custody taking personal 2) Probable cause must be
of the law. (Rule 113, property into the
determinedpersonally by the judge;
Sec. 1) custody of the law.
(Rule 126, Sec. 1) 3) The judge must have personally examined,
The judge is required to The court must always under oath and affirmation, and in the form
conduct an investigation conduct searching of searching questions and answers, the
or examination but the questions upon the applicant and his witnesses;
court may dispense with complainant and his 4) The warrant must particularlydescribe the
the personal examination witnesses. (Rule 126, place to be searched and the things to be
and may simply rely on Sec. 5) seized which may be anywhere in the
the report of the fiscal. Philippines; and,
An arrest may be made Should be executed 5) The warrant must be issued for one
on any day and at any only on daytime unless
specificpurpose or in connection with one
time of the day or night. otherwise stated in the
(Rule 113, Sec. 6) warrant itself. (Rule specific offense.
126, Sec. 9)
Imprescriptible; until and Only good for 10 days; 7.N.4 Probable Cause
unless implemented. whether implemented
or not, the search It refers to such fact and circumstances which
warrant dies on the would lead a reasonably discreet and prudent
11th day. man to believe that the offense charged has
As long as the person is The things to be seized been committed and that the objects sought in
identifiable, you can and the person to be connection with the offense are in the place
already implement the searched must be
sought to be searched.(Kho v. Lanzanas, G.R. No.
warrant lawfully. specifically identified.
150877, May 4, 2006)
(Rule 126, Sec. 4)
Basis of Probable Cause
7.N.3 Application for Search Warrant,
Where Filed (Rule 126, Sec. 2) (TeJuPen)
The basis must be the personal knowledge of
the complainant or the witnesses he may
1. Any court within whose territorial jurisdiction
produce and not based on mere hearsay.
a crime was committed.
2. For compelling reasons stated in the
application, any court within the judicial

452 Center for Legal Education and Research

 Purple Notes
The test of sufficiency of a deposition or
affidavit is whether it has been drawn in a
manner that perjury could be charged thereon
and the affiant be held liable for damaged
caused.
 Mere affidavits of the complainant and his
witnesses are not sufficient. The judge has
to take depositions in writing of the
complainant and the witnesses and to
attach them to the record (Mata vs. Bayona,
G.R.. No. L-50620, March 26, 1984).
Factors in Determining Probable Cause
 Time of the application in relation to the
alleged offense committed. The nearer the
time at which the observation of the offense
is alleged to have been made, the more
reasonable the conclusion of establishment
of probable cause (Asian Surety Insurance vs.
Herrera, G.R. No. L-25232, Dec. 20, 1973);
 There must be competent proof of particular
acts or specific omissions but only the best
evidence under the circumstances is
required (People vs. Judge Estrada, G.R. No.
124461, September 25, 1998).
Who Determines Probable Cause
General Rule: Probable cause must be
determined personally by a judge. (Art. 3, Sec. 2,
1987 Constitution)
Exception: Deportation of illegal and
undesirable aliens, whom the President or the
Commissioner of Immigration may order
arrested, following a final order of deportation,
for the purpose of deportation. (Harvey vs.
Defensor-Santiago, G.R. No. 82544, June 28, 1988).
―Multi-factor balancing test‖ in
determining probable cause – one which
requires the officer to weigh the manner and
intensity of the interference on the right of the
people, the gravity of the crime committed and
the circumstances attending the incident(Allado
vs Diokno, G.R. No. 113630, May 5, 1994).
Remedial Law
Finding of Probable Cause by a Judge may
be Set Aside
The finding of probable cause of the Judge may
be set aside and the search warrant issued by
him based on his finding may be quashed; the
evidence seized by the police officers based on
said search warrant may be suppressed if the
accused presents clear and convincing evidence
that the police officers and/or a government
informant made a deliberate falsehood or
reckless disregard for the truth in said
affidavit/deposition or testimony which is
essential or necessary to a showing of probable
cause. The requirement that a search warrant
not issue but upon probable cause would be
reduced to a nullity if a police officer and his
informant are able to use deliberately falsehood
allegations to demonstrate probable cause and,
having misled the Judge, was able to remain
confident that the ploy succeeded.(Abuan vs.
People, G.R. No. 168773, October 27, 2006)
7.N.5 Personal Examination by the Judge
of the Applicant and His Witnesses
The judge, before issuing the search warrant
must personally examine on oath or affirmation
the complainant and any witnesses he may
produce. This examination is necessary in order
to ascertain the existence of probable cause, the
determination of which calls for the exercise of
judgment after a judicial appraisal of facts which
may not be delegated.
The examination of the complainant and his
witnesses must be conducted in the form of
searching questions and answer which will have
a tendency to show the commission of a crime
and the perpetrator thereof.
7.N.6 Particularity of Place to be Searched
and Things to be Seized
Purpose: To leave the officers of the law with
no discretion regarding what articles they shall
seize, to the end that unreasonable searches
and seizures may not be made – that abuses
may not be committed (Stonehill vs. Diokno, G.R.
No. L-19550, June 19, 1967).
Bar Operations C ommissions 453
 Purple Notes
Remedial Law
Q: What is the purpose of such
particularity?
A: The provision requiring a particular
description of the items or things to be seized is
designed to prevent general searches. (United
States vs. Marron, 275 US. 192)
Note:General Warrants – a search or an arrest
warrant that is not particular as to the person
to be arrested or the property to be seized.
(Worldwide Web Corporation vs People, G.R. No.
161106, January 13, 2014)
Test to Determine Particularity
a) When the description therein is as specific as
the circumstances will ordinarily allow;
b) When the description express a conclusion of
fact not of law, which the warrant officer
may be guided in making the search and
seizure; and,
c) When the things described are limited to
those which bear direct relation to the
offense for which the warrant is being
issued.
 A description of the place to be
searched is sufficient if the officer
serving the warrant can, with
reasonable effort, ascertain and identify
the place intended and distinguish it
from other places in the community. A
designation or description that points
out the place to be searched to the
exclusion of all others, and on inquiry
unerringly leads the peace officers to it,
satisfies the constitutional requirement
of definiteness (People vs. Tuan, G.R. No.
176066, August 11, 2010).
Examination of Complainant; Record (Sec.
5, Rule 126)
Before issuing the warrant:
a) The judge must personally examine in the
form of searching questions and answers the
complainant and the witnesses he may
produce;
b) In writing and under oath;
454 Center for Legal Education and Research
c) On facts personally known to them; and,
d) Attach to the record their sworn statements,
together with the affidavits submitted.
Note: An application for a search warrant is
heard ex-parte.
The searching questions propounded to the
applicant of the search warrant and his
witnesses must depend to a large extent upon
the discretion of the judge, just as long as the
answers establish a reasonable ground to
believe the commission of a specific offense and
that the applicant is one authorized by law, and
said answers particularly describe with certainty
the place to be searched and the persons or
things to be seized.
Issuance and Form of Search Warrant
(Rule 126, Sec. 6)
If the judge is satisfied of the existence of
facts upon which the application is based or
that there is probable cause to believe that
they exist, he shall issue the warrant. The
warrant must be substantially in the form
prescribed by the Rules.
Knock and Announce Principle
Generally, officers implementing a search
warrant must:
a) Announce their presence;
b) Identify themselves to the accused and to
persons who rightfully have possession of
the premises to be searched; and,
c) Show to said accused and persons the
search warrant to be implemented by them
and explain said warrant in a
language/dialect known and understood by
the said accused or persons(People vs Hua,
G.R. No. 139301, September 29, 2004).
When Unannounced Intrusion is
Permissible
1. The person whose premises or who is
entitled to the possession thereof, refuses,
upon demand, to open it;
 Purple Notes
2. When such person in the premises already
knew of the identity of the officers and of
their authority;
3. When the officers are justified, in the honest
belief that there is an imminent peril to life
and limb; and,
4. When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officer to believe that an escape or the
destruction of evidence is imminent (Vallejo
vs. CA, G.R. No. 156413, April 14, 2004).
Exclusionary Rule – any evidence obtained
through unreasonable searches and seizures
shall be inadmissible for any purpose in any
proceeding.
Right to Break Door or Window to Effect
Search (Rule 126, Sec. 7)
The officer, if refused admittance to the place of
directed search after giving notice of his
purpose and authority, may break open any
outer or inner door or window of a house or any
part of a house or anything therein to execute
the warrant or liberate himself or any person
lawfully aiding him when unlawfully detained
therein.
Search of House, Room, or Premise to be
Made in Presence of Two Witnesses (Rule
126, Sec. 8)
No search of a house, room, or any other
premises shall be made except in the presence
of: (OcMem-Res)
a) The lawful occupant thereof; or,
b) Any member of his family; or
c) In the absence of the latter, two witnesses of
sufficient age and discretion residing in the
same locality.
7.N.7 Personal Property to be seized.
Note: The personal property under search
warrant is not any kind of property.
Rule 126, Section 3. Personal property to be
seized. — A search warrant may be issued for
the search and seizure of personal property:
(SubPro-Us)
Remedial Law
a) Subject of the offense;
b) Stolen or embezzled and other proceeds, or
fruits of the offense; or
c) Used or intended to be used as the means of
committing an offense.
Time of Making Search(Rule 126, Sec. 9)
General Rule: The warrant must direct that it
be served in the day time.
Exception: When the affidavit asserts that the
property is on the person or in the place ordered
to be searched, in which case a direction may
be inserted that it be served at any time of the
day or night.
Validity of Search Warrant (Rule 126, Sec. 10)
A search warrant shall be valid for ten (10) days
from its date. Thereafter, it shall be void.
General Rule: A search warrant can be used
only once, thereafter, it becomes functus oficio.
Exception: When the search conducted on one
day was interrupted, in which case, the same
may be continued under the same warrant the
following day if not beyond the 10-day period
(UyKheytin vs. Villareal, G.R. No. 16009, September
21, 1920).
Receipt for the Property Seized (Rule 126,
Sec. 11)
The officer seizing the property under the
warrant must:
1. Give a detailed receipt for the same to the
lawful occupant of the premises in whose
presence the search and seizure were
made; or,
2. In the absence of such occupant, leave a
receipt in the place in which he found the
seized property, in the presence of at
least 2 witnesses of sufficient age and
discretion residing in the same locality.
Delivery of Property and Inventory thereof
to Court; Return and Proceedings thereon
(Rule 126, Sec. 12)
Bar Operations C ommissions 455
 Purple Notes
Remedial Law
The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath. The judge shall see to it
that this has been complied with.
Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
return has been made.
 If not, the judge shall:
1.Summon the person to whom the warrant
was issued; and,
2. Require him to explain why no return
was made.
 If Made, the judge shall:
1.Ascertain whether Section 11 of this Rule
on Receipt for the Property Seized has
been complied with; and,
2.Require that the property seized be
delivered to him.
The return on the search warrant shall be filed
and kept by the custodian of the log book on
search warrants who shall enter therein the date
of the return, the result, and other actions of
the judge.
A violation of this rule shall constitute contempt
of court.
Custody of Seized Items
 The responsibilities of the magistrate do not
end with the granting of the warrant, but
extends to the custody of the articles
seized. In exercising custody over these
articles, the property rights of the owner
should be balanced with the social need to
preserve evidence which will be used in the
prosecution of a case (Caterpillar, Inc. vs.
Samson, G.R. No. 164605, October 27, 2006).
Immediate Return of the Seized Items
Where No Criminal Action had been Filed
in Court
 Where the purpose of presenting the
articles seized as evidence is no longer
456 Center for Legal Education and Research
served, there is no justification for severely
curtailing the rights of a person to his
property. In ordering the return of the
articles seized, the trial court had
reasonably exercised its discretion in
determining from the circumstances of the
case what constitutes a reasonable and
unreasonable search and seizure (Caterpillar,
Inc. vs. Samson, G.R. No. 164605, October 27,
2006).
7.N.8 Exceptions to Search Warrant
Requirements
1) When the owner of the premises waives his
right against such incursion;
2) When the search is incidental to a lawful
arrest;
3) When it is made on vessels and aircraft,
such as for violation of customs laws;
4) When it is made on automobiles or motor
vehicles generally for the purpose of
preventing violations of smuggling or
immigration laws;
5) When it involves prohibited articles in plain
view; or,In cases of inspection of buildings
and other premises for the enforcement of
fire, sanitary and building regulations (People
vs. Rodriguez, G.R. No. 95902, February 4,
1992).
7.N.8a Search Incident to Lawful Arrest
(Rule 126, Sec. 13)
A person lawfully arrested may, without search
warrant, be searched: (DangPro)
1) For dangerous weapons; or,
2) Anything which may have been used or
which may constitute as proof of the
commission of an offense.
 When the search is incidental to a lawful
arrest, the scope thereof should be limited
to the area within which the arrestee can
reach for a weapon or for evidence in order
to destroy it(Valeroso vs CA, G.R. No. 164815,
September 3, 2009).
 In the latter case, the person making the
arrest may take from the arrestee any
property which was the fruit or proceeds
thereof or, which may furnish the arrestee
with a means of committing violence or
effecting an escape or which may be used
 Purple Notes
as evidence at the trial of the case.(Malacat
vs CA, G.R. No. 123595, December 12, 1997)
7.N.8bConsented Search
Elements of a Valid Consented Search
To constitute a waiver, it must appear that:
(Ex-KInt)
1. The right exists;
2. The person involved had knowledge, actual
or constructive, of the existence of such
rights; and,
3. There is actual intention to relinquish such
rights (People vs. Burgos, GR. No. 92739,
August. 2, 1991).
Note: Consent cannot be presumed simply
because the accused failed to object to the
search.
7.N.8cSearch of Moving Vehicle
Search and seizure without warrant include that
of vessels and aircrafts for violation of the
customs laws, including violations of forestry
laws. These are the traditional exceptions to the
constitutional requirement of a search warrant.
The reason for this is the ease of moving the
vessel/aircraft out of the locality or jurisdiction
where the warrant was secured. In such a case,
it would not be practical to acquire a warrant
before the search and seizure could be
made.(Riano, Criminal Procedure, 2016 Edition, pp.
283-284,)
However, for the warrantless search and seizure
to be valid, the officers conducting it should
have reasonable or probable cause to believe,
before the search is conducted, that they will
find the instrumentality or evidence pertaining
to a crime, in the vehicle to be searched. (People
vs Tuazon, G.R. No. 175783, September 3, 2007)
 Over the years, the rules governing search
and seizure have been steadily liberalized
whenever a moving vehicle is the object of
the search on the basis of practicality. This
is so considering that before a warrant could
be obtained, the place, things and persons
to be searched must be described to the
satisfaction of the issuing judge – a
Remedial Law
requirement which borders on the
impossible in instances where moving
vehicle is used to transport contraband from
one place to another with impunity. This
exception is easy to understand. A search
warrant may readily be obtained when the
search is made in a store, dwelling house or
other immobile structure. But it is
impracticable to obtain a warrant when the
search is conducted on a mobile ship, on an
aircraft, or in other motor vehicles since
they can quickly be moved out of the
locality or jurisdiction where the warrant
must be sought. (People vs. Mariacos, G.R. No.
188611, June 16, 2010)
7.N.8dCheck Points; Body Checks in
Airport
 A warrantless search conducted at police or
military checkpoints has been upheld for as
long as the vehicle is neither searched nor
its occupants subjected to body search, and
the inspection of the vehicle is merely
limited to visual search (Aniag, Jr. vs.
COMELEC,G.R. No. 104961, October 07, 1994).
7.N.8ePlain View Doctrine
Under this doctrine, objects within the sight of
an officer who has the right to be in a position
to have that view are subject to seizure and
may be presented as evidence (i.e. objects open
to the eye and hand).
Elements: (VaIn-Im)
1. A prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
2. The evidence was inadvertently discovered
by the police who have the right to be
where they are; and,
3. The evidence must be immediately
apparent.
 Plain view justified mere seizure of
evidence without further search (Rosario
vs. People, G.R. No. 142295, May 31, 2001).
Bar Operations C ommissions 457
 Purple Notes
Remedial Law
 The law enforcement officer must
lawfully make an initial intrusion or
properly be in a position from which he
can particularly view the area. In the
course of such lawful intrusion, he came
inadvertently across a piece of evidence
incriminating the accused. The object
must be open to eye and hand and its
discovery inadvertent [Under Section 21,
paragraphs 1 and 2, Article II of RA No.
9165; and the implementing provision of
Section 21 (a), Article II of the
Implementing Rules and Regulations (IRR)
of RA No. 9165].
 The failure of the law enforcers to
comply strictly with the rule is not fatal.
It does not render petitioner‘s arrest
illegal nor the evidence adduced against
him inadmissible. What is essential is
"the preservation of the integrity and
the evidentiary value of the seized
items, as the same would be utilized in
the determination of the guilt or
innocence of the accused." (Miclat Jr vs.
People, G.R. No. 176077, August 31, 2011)
Note: The Tariff and Customs Code does not
require a search warrant for purposes of
enforcing customs and tariff laws.
7.N.8fStop and Frisk Situation
1. Its object is either to determine the identity
of a suspicious individual or to maintain the
status quo momentarily while the police
officer seeks to obtain more information.
The officer may search the outer clothing of
the person in an attempt to discover
weapons which might be used to assault
him. (Terry vs. Ohio, 392 U.S. 1, Manalili vs. CA,
GR No. 113447, October 9, 1997).
 The remedy for questioning the validity of
a search warrant can only be sought in
the court that issued it, not in the sala of
another judge of concurrent jurisdiction.
Except where there is already a case
filed, the latter shall acquire jurisdiction to
the exclusion of other courts.(Rule 126,
Sec. 14)
2. What is, therefore, essential is that a genuine
reason must exist, in light of the police
458 Center for Legal Education and Research
officer‘s experience and surrounding
conditions, to warrant the belief that the
person who manifests unusual suspicious
conduct has weapons or contraband
concealed about him. Such a "stop-and-frisk"
practice serves a dual purpose: (1) the
general interest of effective crime prevention
and detection, which underlies the
recognition that a police officer may, under
appropriate circumstances and in an
appropriate manner, approach a person for
purposes of investigating possible criminal
behavior even without probable cause; and
(2) the more pressing interest of safety and
self-preservation which permit the police
officer to take steps to assure himself that
the person with whom he deals is not armed
with a deadly weapon that could
unexpectedly and fatally be used against the
police officer (Esquillo vs. People, G.R. No.
182010, August 25, 2010).
7.N.8gEnforcement of Customs Law
The Collector of Customs is authorized to
enforce customs duties and tariff laws following
the laws governing it. Custom laws authorize
persons with police authority under Section
2203 of the Tariff and Customs Code to enter,
pass through or search any land, enclosure,
warehouse, store or building not being a
dwelling house; and also to inspect search and
examine any vessel or aircraft and any trunk,
package, box or envelope or any person on
board, or to stop and search and examine any
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines. (Papa vs Mago,
G.R. No. L-27360, February 28, 1968)
7.N.9 Remedies Against an Unlawful
Search and Seizure (Rule 126, Sec.
14)(QuaSu-CeR)
1. A motion to quash the search warrant;
2. A motion to suppress as evidence the
objects illegally taken;
3. Certiorari, to nullify the search warrant when
it is a patent nullity; and,
4. Replevin, if the objects are legally possessed.
 Purple Notes
Where to File Motion to Quash the Search
Warrant (Rule 126, Sec. 14)
a. Under the Criminal Case Rule, all the
incidents arising from the Search Warrant
should be consolidated in the court where
the criminal action has been instituted;
b. Under the Alternative Remedy Rule, with
the court that issued the search warrant. All
grounds for objection existent or available
and known at the time must be invoked.
Otherwise, they are deemed waived.
Note:If the court failed to resolve the motion
and a criminal case is subsequently filed in
another court, the motion shall be resolved by
the latter court.(Riano, Criminal Procedure, 2016
Edition, pp. 273-274)
7.N.10. RULE ON CYBECRIME WARRANTS
(A.M. No. 17-11-03-SC, effective August 15, 2018)
7.N.10.a Scope and Applicability
The Rule sets forth the procedure for the
application and grant of warrants and related
orders involving the preservation, disclosure,
interception, search, seizure, and/or
examination, as well as the custody, and
destruction of computer data. (Section 1.2, A.M.
No. 17-11-03-SC)
Supplementary Nature of this Rule
Remedies provided under existing procedural
rules shall, whenever applicable, be made
available to any party who seeks relief against
any of the orders provided under this
Rule.(Section 1.3, A.M. No. 17-11-03-SC)
7.N.10.b General Provisions
Venue of Criminal Actions
The criminal actions for violation of Section 4
(Cybercrime offenses) and/or Section 5 (Other
offenses), Chapter II of R.A. No. 10175
(Cybercrime Prevention Act of 2012), shall be
filed before the designated cybercrime court:
1. of the province or city where the offense or
any of its elements is committed;
Remedial Law
2. where any part of the computer system used
is situated; or
3. where any of the damage caused to a
natural or juridical person took place
Note: The court where the criminal action is
first filed shall acquire jurisdiction to the
exclusion of the other courts.
All other crimes defined and penalized by the
Revised Penal Code, as amended, and other
special laws, committed by, through, and with
the use of Information and Communications
Technology (ICT), as provided under Section 6,
Chapter II of R.A. No. 10175, shall be filed
before the regular or other specialized regional
trial courts, as the case may be (Sec. 2.1, A.M.
No. 17-11-03-SC).
Where to File an Application for a Warrant
For violation of Secs. 4 (Cybercrime Offenses)
and 5 (Other Offenses) of R.A. 10175, the
application shall be filed by the law enforcement
authorities before any of the designated
cybercrime courts of the province or the city:
(ComSit-Dam)
1. where the offense or any of its elements has
been committed, is being committed, or is
about to be committed;
2. where any part of the computer system used
is situated; or
3. where any of the damage caused to a
natural or juridical person took place
Note: However, the cybercrime courts in
Quezon City, the City of Manila, Makati City,
Pasig City, Cebu City, Iloilo City, Davao City and
Cagayan De Oro City shall have the special
authority to act on applications and issue
warrants which shall be enforceable
nationwide and outside the Philippines.
For violation of Sec. 6 (all crimes defined and
penalized by the Revised Penal Code, as
amended, and other special laws, if committed
by, through, and with the use of ICT), the
application shall be filed by the law enforcement
authorities with the regular or other specialized
regional trial courts, as the case may be, within
Bar Operations C ommissions 459
 Purple Notes
Remedial Law
its territorial jurisdiction in the places above-
described (Sec. 2.2, A.M. No. 17-11-03-SC).
Incidents Related to the Warrant When a
Criminal Action is Instituted
A motion to quash and other incidents that
relate to the warrant shall be heard and
resolved by the court that subsequently
acquired jurisdiction over the criminal action.
The prosecution has the duty to move for the
transmittal of the records, as well as the
transfer of the items' custody to the latter court
(Sec. 2.3, A.M. No. 17-11-03-SC).
Examination of Applicant and Record
Before issuing a warrant, the judge must
personally examine the applicant and the
witnesses he may produce on facts personally
known to them and attach to the record their
sworn statements, together with the judicial
affidavits submitted.
The examination shall be in the form of:
1. searching questions and answers;
2. in writing; and
3. under oath (Sec. 2.4, A.M. No. 17-11-03-SC)
Effective Period of Warrants
It shall only be effective for the length of time
as determined by the court, which shall not
exceed a period often (10) days from its
issuance.
Extension of Time of Effectivity of the
Warrant
The court issuing the warrant may, upon
motion, extend its effectivity based only on
justifiable reasons for a period not exceeding
ten (10) days from the expiration of the
original period (Sec. 2.5, A.M. No. 17-11-03-SC).
Requisites: (MoJu-10)
1. upon motion
2. based on justifiable reasons
460 Center for Legal Education and Research
3. not exceeding ten (10) days from the
expiration of the original period
Contempt
Failure to timely file the returns for any of the
issued warrants under this Rule or to duly turn-
over to the court's custody any of the items
disclosed, intercepted, searched, seized, and/or
examined, shall subject the responsible law
enforcement authorities to an action for
contempt, which procedures shall be governed
by Rule 71 of the Rules of Civil Procedure,
insofar as they are applicable. (Sec. 2.6, A.M. No.
17-11-03-SC)
Obstruction of Justice for Non-
Compliance; Where to File
Failure to comply with the orders from law
enforcement authorities, shall be punished as a
violation of P.D. No. 1829, entitled "Penalizing
Obstruction of Apprehension and Prosecution of
Criminal Offenders."
Note: The criminal charge for obstruction of
justice shall be filed before the designated
cybercrime court that has jurisdiction over the
place where the non-compliance was
committed(Sec. 2.7, A.M. No. 17-11-03-SC).
Extraterritorial Service of Warrants and
Other Court Processes
Service of warrants and/or other court processes
shall be coursed through the Department of
Justice -Office of Cybercrime, in line with all
relevant international instruments and/or
agreements on the matter(Sec. 2.8 A.M. No. 17-
11-03-SC).
7.N.10.c Preservation of Computer Data
Pursuant to Section 13, Chapter IV of RA 10175,
the integrity of traffic data and subscriber's
information shall be kept, retained, and
preserved by a service provider for a minimum
period of six (6) months from the date of the
transaction.
 Purple Notes
Remedial Law
Traffic data – refers to any computer data termination of the case and/or as ordered by the
other than the content of the communication, court, as the case maybe.
including, but not limited to, the
communication's origin, destination, route, time, The service provider ordered to preserve
date, size, duration, or type of underlying computer data shall keep the order and its
service(Sec. 1.4(s), A.M. No. 17-11-03-SC). compliance therewith confidential (Sec. 3.1, A.M.
No. 17-11-03-SC).
Subscriber's information – refers to any
information contained in the form of computer Warrants that may be issued in the Rule
data or any other form that is held by a service on Cybercrime Warrants.
provider, relating to subscribers of its services,
other than traffic or content data, and by which 1. Warrant to Disclose Computer Data (WDCD)
any of the following can be established:
2. Warrant to Intercept Computer Data (WICD)
a. The type of communication service used, the 3.Warrant to Search, Seize, and Examine
technical provisions taken therewith, and the Computer Data (WSSECD)
period of service;
b. The subscriber's identity, postal or 4. Warrant to Examine Computer Data (WECD)
geographic address, telephone and other
access number, any assigned network
7.N.10.d Disclosure of Computer Data
address, billing and payment infonnation that
are available on the basis of the service
Law enforcement authorities, upon securing a
agreement or arrangement; or
Warrant to Disclose Computer Data (WDCD)
c. Any other available information on the site of
under this Rule, shall issue an order requiring
the installation of communication equipment
any person or service provider to disclose or
that is available on the basis of the service
submit subscriber's information, traffic data or
agreement or arrangement. (Sec. 1.4(r), A.M.
relevant data in his/her or its possession or
No. 17-11-03-SC)
control within seventy-two (72) hours from
receipt of the order in relation to a valid
On the other hand, content data shall be
complaint officially docketed and assigned for
preserved for six (6) months from the date of
investigation and the disclosure is necessary and
receipt of the order from law enforcement
relevant for the purpose of investigation. (Sec.
authorities requiring its preservation.
4.1, A.M. No. 17-11-03-SC)
Content data – refers to the content of the
Warrant to Disclose Computer Data
communication, the meaning or purported
(WDCD)
meaning of the communication, or the message
or information being conveyed by the
A WDCD is:
communication, other than traffic data. (Sec.
1. an order in writing
1.4(e), A.M. No. 17-11-03-SC)
2. issued in the name of the People of the
Philippines
Law enforcement authorities may order a one-
3. signed by a judge
time extension for another six (6) months:
4. upon application of law enforcement
Provided, that once computer data that is
authorities, authorizing the latter:
preserved, transmitted or stored by a service
provider is used as evidence in a case, the
a. to issue an order to disclose; and,
receipt by the service provider of a copy of the
b. require any person or service provider to
transmittal document to the Office of the
disclose or submit subscriber's
Prosecutor shall be deemed a notification to
information, traffic data, or relevant data
preserve the computer data until the final
in his/her or its possession or control.
(Sec. 4.2, A.M. No. 17-11-03-SC)

Bar Operations C ommissions 461

 Purple Notes
Remedial Law
Contents of Application for a WDCD
a. The Probable Offense involved;
b. Relevance and necessity of the computer
data or subscriber's information sought to be
disclosed for the purpose of the
investigation;
c. Names of the individuals or entities whose
computer data or subscriber's information
are sought to be disclosed, including the
names of the individuals or entities who have
control, possession or access thereto, if
available;
d. Particulardescription of the computer data or
subscriber's information sought to be
disclosed;
e. Place where the disclosure of computer data
or subscriber's information is to be enforced,
if available;
f. Manner or method by which the disclosure of
the computer data or subscriber's
information is to be carried out, if available;
and
g. Otherrelevantinformation that will persuade
the court that there is a probable cause to
issue a WDCD. (Sec. 4.3, A.M. No. 17-11-03-SC)
Note: The application must be verified.
Return on the WDCD; Retained Copy
The authorized law enforcement officer shall
submit a return on the WDCD to the court that
issued it and simultaneously turn over the
custody of the disclosed computer data or
subscriber's information thereto:
a. Within forty-eight (48) hours from
implementation; or
b. After the expiration of the effectivity of the
WDCD, whichever comes first.
Duty of the Judge in Relation to the WDCD
It is the duty of the issuing judge:
a. to ascertain if the return has been made, and
if none,
b. to summon the law enforcement officer to
whom the WDCD was issued and require him
to explain why no return was made, without
462 Center for Legal Education and Research
prejudice to any action for contempt as
provided under Section 2.6 of this Rule.
Law enforcement authorities are allowed to
retain a copy of the disclosed computer data or
subscriber's information subject of the WDCD
which may be utilized for case build-up or
preliminary investigation purposes, without the
need of any court intervention; Provided,
that the details thereof are kept strictly
confidential and that the retained copy shall be
labelled as such.
The retained copy shall be turned over upon the
filing of a criminal action involving the disclosed
computer data or subscriber's information to the
court where such action has been instituted, or
if no criminal action has been filed, upon order
of the issuing court under the under this Rule.
Upon its turn-over, the retained copy shall
always be kept, destroyed, and/or returned
together with the computer data or subscriber's
information that was originally turned over to
the issuing court under the first paragraph of
this Section (Sec. 4.5, A.M. No. 17-11-03-SC).
Contempt
Non-compliance with the order to disclose
issued by law enforcement authorities shall be
deemed non-compliance with the WDCD on
which the said order is based, and shall likewise
give rise to an action for contempt(Sec. 4.6, A.M.
No. 17-11-03-SC).
7.N.10.e Interception of Computer Data
Interception may be carried out only by virtue of
a court-issued warrant, duly applied for by law
enforcement authorities (Sec. 5.1, A.M. No. 17-11-
03-SC).
Warrant to Intercept Computer Data
(WICD)
A WICD is:
1. an order in writing;
2. issued in the name of the People of the
Philippines;
3. signed by a judge; and
 Purple Notes
4. upon application of law enforcement
authorities, authorizing the latter to carry
out any or all of the following activities:
a. listening to;
b. recording;
c. monitoring; or,
d. surveillance of the content of
communications, including procuring of
the content of computer data, either
directly, through access and use of a
computer system or indirectly, through
the use of electronic eavesdropping or
tapping devices, at the same time that
the communication is occurring(Sec. 5.2,
A.M. No. 17-11-03-SC).
Contents of Application for WICD
The verified application for a WICD, as well as
the supporting affidavits, shall state the
essential facts similar to those in Section 4.3
[Contents for WDCD] of this Rule, except that
the subject matter is the communication or
computer data sought to be intercepted. (Sec.
5.3, A.M. No. 17-11-03-SC)
Return on the WICD
The authorized law enforcement officers shall
submit a return on the WICD to the court that
issued it and simultaneously turn-over the
custody of the intercepted communication or
computer data thereto as provided under
Section 7 .1 of this Rule:
1. Within forty-eight (48) hours from
implementation; or
2. after the expiration of the effectivity of the
WICD, whichever comes first
Duty of the judge in relation to the WICD
It is the duty of the issuing judge to ascertain:
a. if the return has been made, and if none,
b. to summon the law enforcement officer to
whom the WICD was issued and require him
to explain why no return was made, without
prejudice to any action for contempt (Sec.
5.5, A.M. No. 17-11-03-SC).
Remedial Law
Notice after Filing of Return
The authorized law enforcement officer has the
duty to notify the person whose communications
or computer data have been intercepted of the
activities conducted pursuant to the WICD:
1. Within thirty (30) days from the filing of the
return; or
2. If no return is filed, from the lapse of the
forty-eight (48) hour period to file the return
If Return has been Filed: a copy of the same
shall be attached to the notice.
If Return has not been Filed: the notice shall
state the details of the interception activities,
including the contents of the intercepted
communication or computer data.
Remedy of a Person whose
Communications or Computer Data have
been Intercepted
Within ten (10) days from notice, the person
whose communications or computer data have
been intercepted may challenge, by motion,
the legality of the interception before the issuing
court (Sec. 5.6, A.M. No. 17-11-03-SC).
7.N.10.f Warrant to Search, Seize and
Examine Computer Data (WSSECD)
A Warrant to Search, Seize and Examine
Computer Data (WSSECD) is:
1. an order in writing;
2. issued in the name of the People of the
Philippines;
3. signed by a judge; and
4. upon application of law enforcement
authorities, authorizing the latter to search
the particular place for items to be seized
and/ or examined. (Sec. 6.1, A.M. No. 17-11-03-
SC)
Contents of Application for a WSSECD
The verified application for a WSSECD, as well
as the supporting affidavits, shall state the
essential facts similar to those in Section 4.3
Bar Operations C ommissions 463
 Purple Notes
Remedial Law
[Contents for WDCD] of this Rule, except that
the subject matter is the computer data sought
to be searched, seized, and examined, and all
other items related thereto.
In addition, the application shallcontain an
explanation of the search and seizure
strategy to be implemented, including a
projection of whether or not an off-site or on-
site search will be conducted, taking into
account the nature of the computer data
involved, the computer or computer system's
security features, and/or other relevant
circumstances, if such information is available
(Sec. 6.2, A.M. No. 17-11-03-SC).
Off-site and On-site Principle; Return of
Items Seized Off-site
If the circumstances so allow, law enforcement
authorities shall endeavor to first:
1. make a forensic image of the computer data
on-site; and
2. limit their search to the place specified in the
warrant.
Otherwise, an off-site search may be conducted,
provided:
1. that a forensic image is made, and
2. that the reasons for the said search are
stated in the initial return. (A.M. No. 17-11-03-
SC, Sec. 6.4).
Remedy of a person whose Computer
Devices or Computer System have been
Searched and Seized Off-site
A person whose computer devices or computer
system have been searched and seized off-site
may, upon motion, seek the return of the said
items from the court issuing the WSSECD:
Provided, that a forensic image of the computer
data subject of the WSSECD has already been
made.
The court may grant the motion upon its
determination that no lawful ground exists to
otherwise withhold the return of such items to
him (Sec. 6.4, A.M. No. 17-11-03-SC).
464 Center for Legal Education and Research
Allowable Activities During the
Implementation of the WSSECD
The interception of communications and
computer data may be conducted during the
implementation of the WSSECD provided:
1. that the interception activities shall only be
limited to communications and computer
data that are reasonably related to the
subject matter of the WSSECD; and
2. that the said activities are fully disclosed, and
the foregoing relation duly explained in the
initial return.
Likewise, law enforcement authorities may
order any person, who has knowledge about the
functioning of the computer system and the
measures to protect and preserve the computer
data therein, to provide, as is reasonable, the
necessary information to enable the undertaking
of the search, seizure and examination(Sec. 6.5,
A.M. No. 17-11-03-SC).
Initial Return
Within ten (10) days from the issuance of the
WSSECD, the authorized law enforcement
officers shall submit an initial return that
contains the following information:
1) A list of all the items that were seized, with a
detailed identification of:
a) the devices of the computer system
seized, including the name, make, brand,
serial numbers, or any other mode of
identification, if available; and
b) the hash value of the computer data
and/or the seized computer device or
computer system containing such data;
2) A statement on whether a forensic image of
the computer data was made on-site, and if
not, the reasons for making the forensic
image off-site;
3) A statement on whether the search was
conducted on-site, and if not, the reasons for
conducting the search and seizure off-site;
4) A statement on whether interception was
conducted during the implementation of the
WSSECD, together with:
 Purple Notes
a) a detailed identification of all the
interception activities that were
conducted;
b) the hash value/s of the communications
or computer data intercepted; and
c) an explanation of the said items'
reasonable relation to the computer data
subject of the WSSECD;
5) List of all the actions taken to enforce the
WSSECD, from the time the law enforcement
officers reached the place to be seized until
they left the premises with the seized items
and reached the place where the items
seized were stored and secured for
examination; and
6) A reasonable estimation of how long the
examination of the items seized will be
concluded and the justification therefor.
Duty of the Judge in relation to the
WSSECD
It is the duty of the issuing judge:
1) to ascertain if the initial return has been
made, and if none,
2) to summon the law enforcement authority to
whom the WSSECD was issued and require
him to explain why no initial return was
made, without prejudice to any action
for contempt(Sec. 6.6, A.M. No. 17-11-03-SC).
Period to Examine and Order to Return
After the initial return is submitted to the court
pursuant to the WSSECD, the court shall issue
an order fixing the period to conclude the
examination of all the items seized, which period
may be extended not exceeding thirty (30) days,
upon motion, for justifiable reasons.
Requisites for Extension of Period (30-
MoJu)
1. Not exceeding thirty (30) days;
2. Upon motion; and
3. For justifiable reasons(A.M. No. 17-11-03-SC,
Sec. 6.7)
Final Return on the WSSECD
Within forty-eight (48) hours after the expiration
of the period to, the authorized law enforcement
Remedial Law
officers shall submit a final return on the
WSSECD to the court that issued it, and
simultaneously turn-over the custody of the
seized computer data, as well as all other items
seized and/or the communications or computer
data intercepted in relation thereto(A.M. No. 17-
11-03-SC, Sec. 6.8)
Duty of the Judge in relation to the Final
Return on the WSSECD
It is the duty of the issuing judge:
1. to ascertain if the final return has been
made, and if none,
2. to summon the law enforcement officer to
whom the WSSECD was issued and require
him to explain why no final return was
made, without prejudice to any action
for contempt. (Sec. 6.8, A.M. No. 17-11-03-
SC)
Examination where Lawful Possession of
Device is Obtained; Warrant to Examine
Computer Data (WECD)
Upon acquiring possession of a computer device
or computer system via a lawful warrantless
arrest, or by any other lawful method, law
enforcement authorities shall first apply for a
warrant before searching the said computer
device or computer system for the purpose of
obtaining for forensic examination the computer
data contained therein.
The warrant therefor shall be denominated as a
Warrant to Examine Computer Data (WECD).
The verified application for a WECD, as well as
the supporting affidavits, shall state the
essential facts similar to those in Section 4.3 of
this Rule, except that the subject matter is
the computer data sought to be examined.
In addition, the application shall disclose the
circumstances surrounding the lawful acquisition
of the computer device or computer system
containing the said computer data.
If the judge is satisfied that there is probable
cause to believe that the facts upon which the
Bar Operations C ommissions 465
 Purple Notes
Remedial Law
application for WECD exists, he shall issue the
WECD, which must be substantially in the form
prescribed under this Rule.
The initial and final returns, as well as the
period to examine under a WECD, shall be
similarly governed by the procedures set forth in
Sections 6.6 to 6.8 of this Rule.
Interception of communications and computer
data may be likewise conducted during the
implementation of the WECD under the same
conditions stated in Section 6.5 of this Rule(Sec.
6.9, A.M. No. 17-11-03-SC).
7.N.10.g Deposit and Custody of Seized
Computer Data
Upon the filing of the return for a WDCD or
WICD, or the final return for a WSSECD or
WECD, all computer data subject thereof
shall be simultaneously deposited in a
sealed package with the same court that
issued the warrant.
It shall be accompanied by a complete and
verified inventory of all the other items seized in
relation thereto, and by the affidavit of the duly
authorized law enforcement officer containing:
1. The date and time of the disclosure,
interception, search, seizure, and/or
examination of the computer data, as the
case may be. If the examiner or analyst has
recorded his/her examination, the recording
shall also be deposited with the court in a
sealed package and stated in the affidavit;
2. The particulars of the subject computer
data, including its hash value;
3. The manner by which the computer data
was obtained;
4. Detailed identification of all items
seized in relation to the subject computer
data, including the computer device
containing such data and/or other parts of
the computer system seized, indicating the
name, make, brand, serial numbers, or any
other mode of identification, if available;
5. The names and positions of the law
enforcement authorities who had access
to the computer data from the time of its
466 Center for Legal Education and Research
seizure until the termination of the
examination but prior to depositing it with
the court, and the names of officers who will
be delivering the seized items to the court;
6. The name of the law enforcement
officer who may be allowed access to
the deposited data. When the said officer
dies, resigns of severs tie with the office,
his/her successor may, upon motion, be
granted access to the deposit; and
7. A certification that no duplicates or
copies of the whole or any part thereof
have been made, or if made, all such
duplicates or copies are included in the
sealed package deposited, except for the
copy retained by law enforcement authorities
pursuant to paragraph 3 of Section 4.5 of
this Rule(A.M. No. 17-11-03-SC, Sec. 7.1).
Note: The return on the warrant shall be
filed and kept by the custodian of the log
book on search warrants who shall enter
therein the date of the return, the description of
the sealed package deposited, the name of the
affiant, and other actions of the judge (Sec. 7.1,
A.M. No. 17-11-03-SC).
Duty of the Prosecutor When Criminal
Action is Instituted
Once a criminal action is instituted, it shall be
the duty of the prosecutor, or his/her duly
authorized representatives to move for the
immediate transmittal of the records as well as
the transfer of the intercepted, disclosed,
searched, seized and/or examined computer
data and items, including the complete and
verified inventory thereof, to the court that
subsequently acquired jurisdiction over the
criminal action.
The motion for the purpose shall be filed before
the court that issued the warrant and has
custody of the computer data within ten (10)
days from the time the criminal action is
instituted and shall be acted upon by the court
within a period of five (5) days. conditions
stated in Section 6.5 of this Rule (Sec. 7.2, A.M.
No. 17-11-03-SC).
 Purple Notes
Access to and Use of Computer Data
General Rule: The package containing the
computer data so deposited shall not be
opened, or the recordings replayed, or its
contents revealed, or, in any manner, used as
evidence.
Exception: Upon motion duly granted by the
court.
The motion for the purpose shall state:
1. The relevance of the computer data sought
to be opened, replayed, revealed, or used as
evidence; and
2. The names of the persons who will be
allowed to have access thereto, if the motion
is granted.
The motion shall further include proof of service
of copies sent to the person or persons whose
computer data is the subject of the motion.
The said person or persons shall be given ten
(10) days from receipt of notice thereof to file a
comment, after which the comi shall rule on the
motion, unless it finds it necessary to conduct a
clarificatory hearing for the purpose (Sec. 7.3,
A.M. No. 17-11-03-SC).
Duty of Service Providers and Law
Enforcement Authorities to Destroy
Pursuant to Section 17 of RA 10175, upon
expiration of the periods as provided in Sections
13 [Preservation of Computer Data] and 15
[Search, Seizure and Examination of Computer
Data] of the said law, service providers and law
enforcement authorities, as the case may be,
shall immediately and completely destroy the
computer data subject of preservation and
examination (Sec. 8.1, A.M. No. 17-11-03-SC).
Destruction and Return of Computer Data
in the Custody of the Court
Upon motion and due hearing, the court may,
for justifiable reasons, order:
1) the complete or partial destruction, or
2) the return to its lawful owner or possessor
Remedial Law
…of the computer data or any of the related
items turned over to its custody.
Likewise, the court may, motu proprio, and
upon written notice to all the parties concerned,
order:
1) the complete or partial destruction, or
2)the return to its lawful owner or possessor
…of the computer data or any of the related
items turned over to its custody if no preliminary
investigation or case involving these items has
been instituted after thirty-one (31) days
from their deposit, or if preliminary
investigation has been so instituted within this
period, upon finality of the prosecutor's
resolution finding lack of probable cause.
In its sound discretion, the court may conduct a
clarificatory hearing to further determine if there
is no reasonable opposition to the items'
destruction or return.
If the court finds the destruction or return of
disclosed computer data or subscriber's
information subject of a WDCD to be justified
under this Section, it shall first issue an order
directing the law enforcement authorities to
turnover the retained copy.
Upon its turn-over, the retained copy shall be
simultaneously destroyed or returned to its
lawful owner or possessor together with the
computer data or subscriber's information that
was originally turned over to the issuing court
(Sec. 8.2, A.M. No. 17-11-03-SC).
7.N.10.h Destruction of Computer Data;
How Made
The destruction of computer data and related
items, if so allowed under Section 8.2 of this
Rule, shall be made:
1) in the presence of the Branch Clerk-of-
Court, or
2) in his/her absence, in the presence of any
other person duly designated by the court to
witness the same.
Bar Operations C ommissions 467
 Purple Notes
Remedial Law
The accused or the person/s from whom such
items were seized, or his/her representative or
counsel, as well as the law enforcement officer
allowed access to such items as indicated in the
inventory, or his/her duly authorized
representative, may also be allowed to witness
the said activity.
Requisite: that they appear during the
scheduled date of destruction upon written
notice to them by the Branch Clerk-of-Court at
least three (3) days prior to the aforementioned
date.
Within twenty-four (24) hours from the
destruction of the computer data, the Branch
Clerk-of-Court or the witness duly designated by
the court shall issue a sworn certification as to
the fact of destruction and file the said
certificate with the same court.
How is a storage device destroyed?
The storage device, or other items turned over
to the court's custody, shall be destroyed:
(ShreD-PrO)
An order which authorizes the Philippine
Competition Commission to search and inspect
business premises and other offices, land and
vehicles, in aid of administrative investigations
on alleged violations of the Philippine
Competition Act, its implementing rules and
regulations, and other competition laws.
The Inspection Order allows information to be
examined, copied, photographed, recorded, or
printed to prevent the removal, concealment,
tampering with, or destruction of such
information.
Application for the issuance of an
inspection order where filed(Sec. 3)
An application for the issuance of an inspection
order is filed with the Special Commercial Court
of the judicial region where the place to be
inspected is located.
Special Commercial Courts in Quezon City,
Manila, Makati, Pasig, Cebu City, Iloilo City,
Davao City and Cagayan De Oro City shall have
authority to act on applications for the issuance
of inspection orders, which shall be enforceable
nationwide.

1) by shredding; When an Inspection Order may be issued

2) drilling of four holes through the device; (Sec. 6)
3) prying the platters apart; or
4) other means in accordance with If there is reasonable ground to suspect:
international standards that will sufficiently
make it inoperable. (Sec. 8.3, A.M. No. 17-11- a) that the information is kept, found, stored
03-SC) or accessible at the premises indicated in
the application;
RULE GOVERNING THE APPLICATION, b) the information relates to any matter
ISSUANCE, AND ENFORCEMENT BY THE relevant to the investigation; and
PHILIPPINE COMPETITION COMMISSION c) the issuance of the order is necessary to
(―PCC‖) OF INSPECTION prevent the removal, concealment,
ORDERS.(Administrative Matter No. 19-08-06- tampering with, or destruction of the books,
SC, effective November 16, 2019) records, or other documents to be
inspected.
Cases Covered (Sec. 1)
Period of Effectivity of the Inspection
Administrative investigations on alleged Order(Sec. 7)
violations of the Philippine Competition Act, its
implementing rules and regulations, and other The Inspection Order shall be effective for the
competition laws. length of time as determined by the court but
shall not exceed fourteen (14) days from
Inspection Order (Sec. 2) issuance, unless extended for another period

468 Center for Legal Education and Research

 Purple Notes
not exceeding fourteen (14) days from
expiration of the original period.
When Inspection Order may be served(Sec.
8)
It may be served during business hours of the
premises, or at any time on any day, as may be
determined by the court for compelling reasons
stated in the application.
Use of Reasonable Force to effect order
(Sec. 12)
The PCC, if refused admission into the premises
despite giving notice of their purpose and
authority may use reasonable force to gain entry
to enforce the inspection order or liberate
themselves or any person lawfully aiding them
when lawfully detained therein.
Motion to Quash Inspection Order(Sec. 13)
If the Inspection Order has been improperly
issued or implemented, the entity or individual
against whom the said inspection order is issued
may file a written motion with the issuing
Special Commercial Court to quash the
Inspection Order before the PCC files its return.
Consequence for Refusal to comply with
Inspection Order(Sec. 15)
Any person or entity who refuses or fails to
comply with an inspection order or any provision
of this Rule shall be cited for contempt of court
under Rule 71 of the Rules of Court.
7.O. PROVISIONAL REMEDIES IN
CRIMINAL CASES (Rule 127)
Availability of provisional remedies(Rule
127, Sec. 1)
The requisites and procedure for availing of
provisional remedies shall be the same as those
for civil cases.
Attachment (Rule 127, Sec. 2)
Remedial Law
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 may be recovered from
the accused in the following cases: (AbCla-
ConOut)
1) When the accused is about to abscond from
the Philippines.
2) When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public officer,
officer of a corporation, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other person
in a fiduciary capacity, or for a willful
violation of duty.
3) When the accused has concealed, removed,
or disposed of his property, or is about to do
so; and,
4) When the accused resides outside the
Philippines.
Support in Criminal Cases (Rule 61, Sec. 6)
In criminal actions 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 prior to its filing, the accused may be
ordered to provide support pendente lite to the
child born to the offended party allegedly
because of the crime.
The application therefor may be filed
successively by the offended party, her parents,
grandparents or guardian and the State in the
corresponding criminal case during its pendency,
in accordance with the procedure established
under this Rule.
Nature
These are remedies which the party litigants
may resort to for the preservation or protection
of their rights or interests during the pendency
of the action.(Ma. Carminia C. Calderon v. Jose
Antonio F. Roxas, G.R. No. 185595, January 9, 2013)
Bar Operations C ommissions 469
 Purple Notes
Remedial Law
When Proper in Criminal Proceedings
In relation to criminal proceedings, the
provisional remedies under Rule 127 are proper
only where the civil action for the recovery of
civil liability ex delicto has not been waived, or is
not reserved when such reservation of a
separate action may be made.
Kinds of Provisional Remedies (AtIn-
ReDS)
1) Attachment;
2) Injunction;
3) Receivership;
4) Delivery of personal property;
5) Support pendente lite
Q: Is a Petition for Relief from Judgment
under Rule 38 available in a criminal case?
A: Yes. In Hilario v. People, G.R. No. 161070,
April 14, 2008, the accused unassisted by
counsel filed a petition for relief from the
decision of the RTC convicting him of the crime
of homicide. According to his affidavit of merit,
at the time of the promulgation of the
judgment, he was already confined with the QC
jail and was directed to be committed to the
National Penitentiary in Muntinlupa. He further
claimed that he instructed his counsel to appeal
the case but learned that this was not done and
the decision then became final. The RTC denied
the petition. It was unconvinced that the
accused was prevented from filing a notice of
appeal. The CA denied the petition for certiorari
filed by the accused himself questioning the
denial of the petition for relief. The SC in this
case remanded the case to the trial court for the
proper determination of the merits of the
petition for relief from judgment. It held that in
criminal cases, the right of an accused to be
assisted by a member of the bar is immutable;
otherwise, there would be a grave denial of due
process.
Moreover, in all criminal prosecutions, the
accused shall have the right to appeal in the
manner prescribed by law. The appeal is an
essential part of the judicial system and the trial
courts are advised to proceed with caution so as
not to deprive a party of the right to appeal and
470 Center for Legal Education and Research
instructed that every party-litigant should be
afforded the amplest opportunity for the proper
and just disposition of his cause, freed from the
restraints of technicalities. While this right is
statutory, once it is granted by law, however, its
suppression would be a violation of a due
process, a right guaranteed by the Constitution.
8. EVIDENCE
8.A. GENERAL PRINCIPLES
8.A.1. CONCEPT OF EVIDENCE
Evidence is the means, sanctioned by the Rules
of Court, of ascertaining in a judicial proceeding
the truth respecting a matter of fact (Rule 128,
Sec. 1).
Evidence prescribes the manner of presenting
evidence, as by requiring that it shall be given in
an open court by one, who personally knows the
thing to be true, appearing in person, and
subject to cross-examination (RIANO, Evidence
(The Bar Lecture Series), 2016 Ed.).
 Evidence is the mode and manner of
proving the competent facts and
circumstances on which a party relies to
establish the fact in dispute in judicial
proceedings (Bustos vs. Lucero, G.R. No. L–
2068, October 20, 1948).
CLASSIFICATION OF EVIDENCE
8.A.2. SCOPE OF THE RULES ON EVIDENCE
PRINCIPLE OF UNIFORMITY:
General Rule: The rules of evidence shall be
the same in all courts and in all trials and
hearings. (Rule 128, Section 2)
Exception:
When otherwise provided by law or these rules,
such as those enumerated under Rule 1, Sec. 4
of the Rules of Court:(NICOLE)
1. Election cases;
2. Land registration cases;
 Purple Notes
Remedial Law
3.Cadastral cases; Evidence is required only when the court has to
4. Naturalization proceedings; resolve a question of fact. Where no factual
5.Insolvency proceedings; and issue exists in a case, there is no need to
6.Other cases not herein provided for by law. present evidence because where the case
presents a question of law, such question is
Exception to the Exception: resolved by the mere application of the relevant
statutes or rules of this jurisdiction to which no
These rules may applyto the aforementioned evidence is required (RIANO, Evidence (The Bar
proceedings by analogy or in suppletory Lecture Series), 2016 Ed.,
character and whenever practicable and p. 6).
convenient (Rule 1, Sec. 4).
Factual findings of administrative bodies
 The rule on formal offer of evidence (Rule charged with their specific field of expertise, are
132, §34) is clearly not applicable to a afforded great weight by the courts, and in the
petition for naturalization; Decisions in absence of substantial showing that such
naturalization proceedings are not covered findings were made from an erroneous
by the rule on res judicata. estimation of the evidence presented, they are
 The NLRC may consider evidence, such as conclusive, and in the interest of stability of the
documents and affidavits, submitted by the governmental structure, should not be
parties for the first time on appeal. The disturbed.(Sugar Regulatory Administration vs.
submission of additional evidence on Encarnacion B. Tormon, G.R. No. 195640, December
appeal does not preclude the other party 4, 2012).
for the latter could submit counter-
evidence(Rolando Sasan, Sr. vs. National Labor Evidence in Civil Cases distinguished from
Relations Commission, G.R. No. 176240, evidence in Criminal Cases
October 17, 2008).
 The ParolEvidenceRule, like other rules of Civil Cases Criminal Cases
evidence, should not be strictly applied in The party having the The accused is entitled to
burden of proof must an acquittal, unless his or
labor cases. In labor cases pending before
establish his or her case her guilt is shown beyond
the Commission or the Labor Arbiter, the by a preponderance of reasonable doubt. (Rule
rules of evidence prevailing in courts of law evidence. (Rule 133, 133, Section 2)
or equity are not controlling. Rules of Section 1)
procedure and evidence are not applied in An offer of compromise is General rule:
a very rigid and technical sense in labor not an admission of any an offer of compromise
cases (Cirtek Employees Labor Union- liability, and is not by the accused may be
Federation of Free Workers vs. Cirtek admissible in evidence received in evidence as
Electronics, Inc., G.R. No. 190515, June 6, against the offeror. (Rule an implied admission of
2011). 130, Section 28) guilt.

Exceptions:
The rules on evidence, being components of the a. Prosecution of quasi-
Rules of Court, apply only to judicial offenses; and
proceedings (RIANO, Evidence (The Bar Lecture b. Criminal cases
Series), 2016 Ed., allowed by law to be
p. 3). compromised. (Rule
130, Section 28,)
The rules on evidence may be waived. When Rules on sufficiency of Circumstantial evidence
otherwise objectionable evidence is not circumstantial evidence is sufficient for conviction
objected, the evidence becomes admissible does not apply if:
because of waiver. (RIANO, Evidence (The Bar  There is more than
Lecture Series), 2016 Ed., one circumstance;
p. 15)  The facts from which
the inferences are

Bar Operations C ommissions 471

 Purple Notes
Remedial Law
derived are proven;
and
 The combination of
all the circumstances
is such as to produce
a conviction beyond
reasonable doubt.
Inferences cannot be
based on other
inferences (Rule 133,
Sec. 4). (n)
A party or defendant may The accused cannot be
be compelled to be a compelled to be a
witness provided written witness against himself
interrogatories (Rules 25, (Art. III, Sec. 17, 1987
Sec. 6) and request for Constitution).
admission (Rules 26, Sec.
5) have been served
upon him.
The concept of The accused enjoys the
presumption of constitutional
innocence does not apply presumption of
and generally there is no innocence. (RIANO, 2016
presumption for or Ed.)
against a party except in
certain cases provided
for by law.
(RIANO, 2016 Ed.)
Evidence of the moral General Rule:
character of a party in a The prosecution is not
civil case is admissible allowed to prove the bad
only when pertinent to moral character of the
the issue of character accused even if it is
involved in the case [Rule pertinent to the moral
130, Sec. 54 (b)]. trait involved.
Exception:
If done in rebuttal [Rule
130, Sec. 54 (a)(2)].
Rule on Doctor-Patient The rule does not apply.
privileged communication
applies [Rule 130, Sec.
24(c)].
8.A.3. DISTINGUISH: PROOF AND
EVIDENCE
Evidence Proof
It is the medium or It is the effect and result
means of proving or of evidence. It is the
disproving a fact (RIANO, probative effect of
Evidence (The Bar evidence and is the
Lecture Series), 2016 conviction or persuasion
Ed., p. 11). of the mind resulting
from the consideration of
the evidence (RIANO,
Evidence (The Bar
472 Center for Legal Education and Research
Lecture Series), 2016
Ed., p. 10).
8.A.4. DISTINGUISH: FACTUM PROBANS
AND FACTUM PROBANDUM
Factum Probans Factum Probandum
Intermediate or Ultimate Facts
Evidentiary Facts
The fact by which the The fact or proposition to
factum probandum is to be established.
be established.
The fact to be proved; The probative or
the fact which is in issue evidentiary fact tending
and to which the to prove the fact in issue.
evidence is directed.
Existent Hypothetical – what one
party affirms and the
other denies
8.A.5 ADMISSIBILITY OF EVIDENCE
Admissibility of evidence refers to the
question of whether or not the circumstance (or
evidence) is to be considered at all. On the
other hand, the probative value of evidence
refers to the question of whether or not it
proves an issue (PNOC Shipping and Transport
Corporation v. CA, G.R. No. 107518, October 8,
1998).
8.A.5.a. Requisites for admissibility of
evidence; exclusions under the
Constitution, laws, and the Rules of Court
For evidence to be admissible, two elements
must concur:
1) Relevancy – it must have such a relation to
the fact in issue as to induce belief in its
existence or non-existence.
2) Competency – it must not be excluded by
the Constitution, the law or by the rules(Rule
128, Sec. 3, as amended).
Admissibility vs. Probative Value
ADMISSIBILITY PROBATIVE VALUE
As to question resolved
It refers to the It refers to the question of
question of whether or whether or not the
not the evidence is to evidence proves an issue.
be considered at
all(Republic of the
 Purple Notes
Philippines vs. Carmen
SantorioGaleno, G.R.
No. 215009, January
23, 2017).
As to characteristic of evidence to which it
pertains
It pertains to It pertains to its tendency
relevance and to convince and persuade
competence.
As to basis
It depends on logic It depends on the
and law. guidelines provided in Rule
133 and doctrines laid
down by the Supreme
Court.
 The admissibility of evidence should not be
confused with its probative value.
Admissibility refers to the question of
whether certain pieces of evidence are to be
considered at all, while probative value
refers to the question of whether the
admitted evidence proves an issue. Thus, a
particular item of evidence may be
admissible, but its evidentiary weight
depends on judicial evaluation within the
guidelines provided by the rules of evidence
(Heirs of Sabanpan vs. Comorposa, G.R. No.
152807, August 12, 2003).
 There is no issue in the admissibility of the
subject sworn statement. However, the
admissibility of evidence should not be
equated with weight of evidence. The
admissibility of evidence depends on its
relevance and competence while the weight
of evidence pertains to evidence already
admitted and its tendency to convince and
persuade. Thus, a particular item of
evidence may be admissible, but its
evidentiary weight depends on judicial
evaluation within the guidelines provided by
the rules of evidence (Tating vs. Marcella, G.R.
No. 155208, March 27, 2007).
Admissibility vs. Credibility
 Admissibility of evidence is determined by
the concurrence of the two requisites of
relevancy and competency; credibility is a
matter for the court to appreciate (People v.
Abellera, G.R. No. 23533, August 1, 1925).
 Trial courts may allow a person to testify as
a witness upon a given matter because he is
Remedial Law
competent but may thereafter decided
whether to believe or not to believe his
testimony. Credibility depends on the
appreciation of his testimony and arises
from the brief conclusion of the court that
said witness is telling the truth (Gonzales vs.
Court of Appeals, G.R. No. L-37453, May 25,
1979).
Exclusionary Rules of Evidence
A. Constitutional exclusionary rules
1. Unreasonable searches and seizures (Sec. 2,
Art. III, Constitution);
2. 2. Privacy of communication and
correspondence (Sec. 3, Art. III, Constitution);
3. Right to counsel, prohibition on torture,
force, violence, threat, intimidation or other
means which vitiate the free will;
prohibition on secret detention places,
solitary, incommunicado (Sec. 12, Art. III,
Constitution);and
4. Right against self-incrimination (Sec. 17, Art.
III, Constitution)
B. Statutory exclusionary rules
1. Lack of documentary stamp tax to
documents required to have one makes
such document inadmissible as evidence in
court until the requisite stamp/s shall have
been affixed thereto and cancelled (Sec.
201, NIRC); and
2. Any communication obtained by a person,
not being authorized by all the parties to
any private communication, by tapping any
wire/cable or using any other
device/arrangement to secretly
overhear/intercept/record such information
by using any device, shall not be admissible
in evidence in any judicial, quasi-judicial,
legislative or administrative hearing, or
investigation [Sec. 1 and 4, R.A. No. 4200
(Wire-Tapping Act)]
C. Exclusionary Rules under Rule 130
1. Original Document Rule – Originally
known as the ―Best Evidence Rule‖. When
the subject of the inquiry is the contents of
the document, no evidence shall be
Bar Operations C ommissions 473
 Purple Notes
Remedial Law
admissible other than the original
document (Rule 130, Sec. 3, as amended).
2. Parol Evidence Rule – When the terms of
the agreement have been reduced to
writing, it is considered as containing all the
terms agreed upon and there can be,
between the parties and their successors in
interest, NO evidence of such terms other
than the contents of the written agreement
(Rule 130, Sec. 10, as amended).
3. Hearsay Evidence Rule – a witness can
testify only to those facts which he knows
of his personal knowledge; that is, which
are derived from his own perception (Rule
130, Sec. 22, as amended).
4. Offer of Compromise in Civil Cases –
In civil case, an offer of compromise is NOT
admission of any liability and is NOT
admissible in evidence against the offeror
(Rule 130, Sec. 28, as amended).
5. Dead Man’s Statute – Disqualification by
Reason of Death or Insanity of Adverse
Party (Rule 130, Sec. 39, as amended).
6. Disqualification by Reason of
Marriage(Rule 130, Sec. 23, as amended).
7. Disqualification by Reason of
Privileged Communication(Rule 130, Sec.
24).
D. Court issuances, such as:
1. Rule on Electronic Evidence (e.g.
compliance with authentication
requirements for electronic evidence);
2. Child Witness Rule (e.g. Sexual Abuse
Shield Rule); and
3. Judicial Affidavit Rule
Doctrine of the Fruit of the Poisonous Tree
Once the primary source ( the "tree") is shown
to have been unlawfully obtained, any
secondary or derivative evidence (the "fruit")
derived from it is also inadmissible. Stated
otherwise, illegally seized evidence is obtained
as a direct result of the illegal act, whereas the
"fruit of the poisonous tree" is the indirect result
of the same illegal act. The "fruit of the
poisonous tree" is at least once removed from
the illegally seized evidence, but it is equally
inadmissible.
474 Center for Legal Education and Research
The rule is based on the principle that evidence
illegally obtained by the State should not be
used to gain other evidence because the
originally illegally obtained evidence taints all
evidence subsequently obtained(People vs.
Samontañez, G.R. No. 134530 December 4,
2000).
8.A.5.b. Relevance of evidence and
collateral matters
Relevancy
Evidence is relevant when it is related to the
fact in issue as to induce belief in its existence
or non-existence(RIANO, Evidence (The Bar Lecture
Series), 2016 Ed., p. 18).
Collateral Matters
General Rule:
Evidence on collateral matters shall not be
allowed(RIANO, Evidence (The Bar Lecture Series),
2016 Ed., p. 20).
Exception:
Collateral evidence shall be allowed when it
tends in any reasonable degree to establish the
probability or improbability of the fact in
issue(Rule 128, Sec. 4).
8.A.5.c. Multiple admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence may
be admitted for any or all the purposes for
which it is offered provided it satisfies all the
requirements of law for admissibility(People vs.
Sagario, G.R. No. L-18659, June 29, 1965).
8.A.5.d. Conditional admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received on the condition that the other facts
will be proved thereafter;otherwise, the
evidence given will be stricken out from the
 Purple Notes
record(RIANO, Evidence (The Bar Lecture Series),
2016 Ed., p. 26).
8.A.5.e. Curative admissibility
Where improper evidence was admitted over the
objection of the opposing party, he should be
permitted to contradict it with similar improper
evidence. This is evidence introduced to cure,
contradict or neutralize improper evidence
presented by the other party.
If one side introduces evidence irrelevant to the
issue, which is prejudicial and harmful to the
other party, then, although it comes in without
objection, the other party is entitled to introduce
evidence which will directly and strictly
contradict it (State vs. Witham, 72. Me. 531, 535).
8.A.5.f. Direct and circumstantial
evidence
Direct Evidence
Evidence which proves that the fact in dispute
without the aid of any inference or
presumption(People vs. Fronda, G.R. No. 130602,
March 15, 2000).
Circumstantial Evidence
Evidence which indirectly proves a fact in issue
through an inference drawn from the
evidence(People vs. Matito, G.R. No. 144405,
February 24, 2004).
8.A.5.g. Positive and negative evidence
Positive evidence – when a witness affirms in
the stand that a certain state of facts does exist
or that a certain event happened.
Negative evidence – when the witness state
that an event did not occur or that the state of
facts alleged to exist does not actually exist.
 Denial is a self-serving negative evidence
that cannot be given greater weight than the
declaration of credible witnesses who
testified on affirmative matters (Roque vs.
People, G.R. No. 138954, November 25, 2004). It
is a long recognized general rule of evidence
Remedial Law
that all other things being equal, positive
evidence is stronger than negative evidence
(Wa-acon vs. People, G.R. No. 164575, December
06, 2006).
8.A.5.h. Competent and credible evidence
Competent evidence is one that is not excluded
by law or rules in a particular case.
Competence, in relation to evidence in general,
refers to the eligibility of an evidence to be
received as such. However, when applied to a
witness, the term competent refers to the
qualifications of the witness. In other words,
competence refers to his eligibility to take the
stand and testify (Riano, Evidence: The Bar Lecture
Series, p.23, 2016 ed.).
Jurisprudence is settled that whatever is
repugnant to the standards of human
knowledge, observation and experience
becomes incredible and lies outside judicial
cognizance. Evidence, to be believed, must
proceed not only from the mouth of a credible
witness but must be credible in itself as to
hurdle the test of conformity with the
knowledge and common experience of
mankind(Zapatos vs. People, G.R. Nos. 147814-15,
September 16, 2003).
8.A.6. BURDEN OF PROOF AND BURDEN
OF EVIDENCE
Burden of Proof is the duty of a party to
present evidence on the facts in issue necessary
to establish his or her claim or defense by the
amount of evidence required by law. Burden of
proof never shifts(RIANO, Evidence (The Bar
Lecture Series), 2016 Ed., p. 49).
Burden of Evidence is the duty of a party to
present evidence sufficient to establish or rebut
a fact in issue 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 the case(RIANO,
Evidence (The Bar Lecture Series), 2016 Ed., p. 49).
Bar Operations C ommissions 475
 Purple Notes
Remedial Law
BURDEN OF PROOF  As an affirmative defense, sweetheart
BURDEN OF
(Onus Probandi/ Risk defense must be established with convincing
EVIDENCE
Of Non-Persuasion) evidence – by some documentary and/or
Burden of proof is Burden of evidence is the other evidence of relationship (People vs.
theduty of a party to duty of aparty to present Bautista, G.R. No. 140278, June 3, 2004).
present evidenceon the evidencesufficient to
 As a rule, forgery cannot be presumed and
facts in issue necessary establish or rebut afact
toestablish his or her in issue to establish a
must be proved by clear, positive and
claim or defenseby the prima faciecase(Rule convincing evidence; the burden of proof
amount of evidence 131, Sec. 1). lies on the party alleging forgery. One who
requiredbylaw(Rule 131, alleges forgery has the burden to establish
Sec. 1). his case by a preponderance of evidence or
Burden of proof never Burden of evidence evidence which is of greater weight or more
shifts (Rule 131, Sec. 1) mayshift from one party convincing than that which is offered in
and remains throughout to the other inthe course opposition to it. The fact of forgery can only
the entire case exactly of the be established by a comparison between the
where the pleadings proceedings,depending
alleged forged signature and the authentic
originally placed it. on the exigencies of
thecase(Rule 131, Sec. and genuine signature of the person whose
1). signature is theorized to have been forged
Generally determined by Generally determined by (Gepulle-Garbo vs. Spouses Garabato, G.R. No.
the pleadings filed by the the developments of the 200013, January 14, 2005).
parties in litigation. trial, or by the provisions
of substantive law or BURDEN OF PROOF, Upon Whom it Rests
procedural rules which
Civil Cases Criminal Cases
may relieve the party
Plaintiff has the burden Prosecution has the burden
from presenting evidence
of proof to show the of proving guilt of the
on the facts alleged.
truth of his allegations accused because of the
if the defendant raises presumption of
 The burden of proof in establishing adoption a negative defense. innocence(Macayan,Jr., vs.
is upon the person claiming such Defendant has the People, G.R. No. 175842,
relationship (Vda. de Jacob vs. Court of burden of proof if he March 18, 2015).
Appeals, G.R. No. 135216, August 19, 1999). raises an affirmative
 It is basic that once an accused in a defense on the
prosecution for murder or homicide complaint of the
admitted his infliction of the fatal injuries on plaintiff.
the deceased, he assumed the burden to
prove by clear, satisfactory and convincing Note: In Burden of Proof, the plaintiff is always
evidence the justifying circumstance that compelled to allege affirmative assertions in his
would avoid his criminal liability. He should complaint. When he alleges a cause of action,
discharge the burden by relying on the he will be forced to allege that he has a right
strength of his own evidence, because the and that such right was violated by the other
Prosecution‘s evidence, even if weak, would party. Thus, he has the duty to prove the
not be disbelieved in view of his admission existence of this affirmative allegation.
of the killing. Nonetheless, the burden to
prove guilt beyond reasonable doubt If the defendant files his answer and sets up
remained with the State until the end of the purely a negative defense and no evidence is
proceedings (People of the Philippines vs. presented by both sides, it is the defendant who
Fontanilla, G.R. No. 177743, January 25, 2012). would win the case since the plaintiff has not
 An admission of carnal knowledge of the presented the quantum of evidence required by
victim consequently places on the accused law.
the burden of proving the supposed
relationship by substantial evidence (People On the other hand, when the defendant in his
vs. Antonio, G.R. No. 157269, June3, 2004). answer sets up an affirmative defense, if there

476 Center for Legal Education and Research

 Purple Notes
Remedial Law
is no evidence presented by both sides, it is the BURDEN OF EVIDENCE,Upon Whom it
defendant who will lose the case. Rests

Test for determining where the burden of CIVIL CASES CRIMINAL CASES
proof lies Plaintiff has to prove his Prosecution has to
affirmative allegations prove its affirmative
The test for determining where the burden of in the complaint. allegations in the
proof lies is to ask which party to an action or information regarding
suit will lose the case if he offers no evidence the elements of the
competent to show the facts averred as the crime as well as the
basis for the relief he seeks to obtain(Aznar attendant
circumstances.
Brothers Realty Company vs. LaurencioAying, G.R.
No. 144773, May 16, 2005). Defendant has to prove Defense has to prove
the affirmative its affirmative
allegations in his allegations regarding
Degree of Proof that Satisfies the Burden counterclaim and his the existence of
of Proof affirmative defenses. justifying or exempting
circumstances,
1. Civil Cases: Preponderance of evidence absolutory causes or
(Tan jr., vs. Hosana, G.R. No. 190846, mitigating
February 3, 2016). circumstances.

2. Criminal Cases: Equipose or Equiponderance Doctrine

a. To sustain conviction: Evidence of guilt
beyond reasonable doubt (Macayan, Jr., vs.
People, G.R. No. 175842, March 18, 2015).
b. Preliminary Investigation: Prima facie
Case – sufficient to engender a well-
founded belief that a crime has been
committed and that the accused is
probably guilty thereof (Yusop vs.
Sandiganbayan, G.R. No. 138859–60, February
22, 2001).
c. For Issuance of Warrant of Arrest:
Probable Cause – that there is reasonable
ground to believe that the accused has
committed an offense (Hao vs. People, G.R.
No. 183345, September 17, 2014).
3. Administrative Cases: Substantial
evidence – such amount of relevant evidence
which a reasonable mind might accept as
adequate to justify a conclusion (Glenda
Rodriguez–Angat vs. GSIS, G.R. No. 204738, July
29, 2015).
Refers to a situation where:
1. The evidence of the plaintiff and
defendant are evenly balanced; or
2. There is doubt on which side the
evidence preponderates;
Equipoise Doctrine, the court shall decide
against the party who has the burden of
proof.
This rule is based on the principle that no
one shall be deprived of his life, liberty or
property without due process of law (Sec. 1,
Art. III, 1987 Constitution).
 Under the equipoise rule, where the
evidence on an issue of fact is in
equipoise or there is doubt on which side
the evidence preponderates, the party
having the burden of proof loses (Candao
vs. People,G.R. Nos. 186659-710, October 19,
2011).
 Where the inculpatory facts and
circumstances are capable of two or
more explanations, one of which is
consistent with the innocence of the
accused and the other consistent with his
guilt, then the evidence does not fulfill
the test of moral certainty and is not

Bar Operations C ommissions 477

 Purple Notes
Remedial Law
sufficient to support a conviction (Peope presumption(Tison vs. Court of Appeals, G.R.
of the Philippines vs. Urzais, et al., G.R. No. No. 121027, July 31, 1997).
207662, April 13, 2016).

Application of the Equipoise Doctrine

Classification of Presumptions:
Civil Cases Criminal Cases
Where the burden of Where the evidence is 1) Presumption of Law(Presumptio Juris) is
proof is on the plaintiff evenly balanced, the a deduction which the law expressly directs
and the evidence does constitutional
to be made from the facts proven. It is a
not suggest that the presumption of
scale of justice should innocence tilts the scales
presumption determined by law and it
weigh in his favor, the in favor of the accused. consists of a presumption juris et de jure or
court should render a conclusive presumptions, which is not
verdict for the permitted to be overcome by any proof to
defendant. the contrary, however strong; and a
presumption juris tantum or disputable
8.A.7. PRESUMPTIONS presumption, which is presumption that
stands unless rebutted by evidence.
Presumption is an inference of the existence
or non-existence of a fact which is permitted to 2) Presumption of Fact (Presumptio
be drawn from the proof of other facts(Delgado Hominis) is a deduction which reason draws
Vda. de De la Rosa vs. Heirs of MarcianaRustiaVda. from facts proved without an express
de Damian, G.R. No. 155733, January 27, 2006). direction from the law to that effect (Martin
 Where there is an entire lack of competent vs. CA, G.R. No. 82248 January 30, 1992).
evidence to the contrary, and unless or until
it is rebutted, it has been held that a Presumptions of facts are borne by reason
presumption may stand in lieu of evidence through human experience.
and support a finding or decision. Perforce,
a presumption must be followed if it is Presumption of Law vs. Presumption of
uncontroverted. This is based on the theory Fact
that a presumption is prima facieproof of
the fact presumed, and unless the fact thus PRESUMPTION OF PRESUMPTION OF
LAW FACT
established prima facie by the legal
Certain inference must A discretion is vested in
presumption of its truth is disproved, it must be made whenever the the tribunal as to drawing
stand as proved (Tison vs. Court of Appeals, facts appear which the inference.
G.R. No. 121027, July 31, 1997). furnish the basis of the
 Indeed, she overlooked or disregarded the inference.
evidential rule that presumptions like judicial Reduced to the fixed Derived wholly and
notice and admissions, relieve the rules and form part of directly from the
proponent from presenting evidence on the the system of circumstances of the
facts he alleged and such facts are thereby jurisprudence particular case by means
considered as duly proved (Tison vs. Court of of the common
Appeals, G.R. No. 121027, July 31, 1997). experience of man
 Ordinarily, when a fact is presumed, it (Robert P. Wa–acon v. People of the Philippines, G.R.
No. 164575, December 6, 2006).
implies that the party in whose favor the
Kinds of Presumptions of Law:
presumption exists does not have to
introduce evidence to establish that fact,
1) Conclusive Presumption (juris et de jure)
and in any litigation where that fact is put in
is not permitted to be overcome by any proof
issue, the party denying it must bear the
to the contrary(RIANO, Evidence (The Bar
burden of proof to overthrow the
Lecture Series), 2016 Ed., p. 59).

478 Center for Legal Education and Research

 Purple Notes
2) Rebuttable Presumption (juris tantum) is
that which the law permits to be overcome
or contradicted by proofs to the contrary,
otherwise, the same remains satisfactory and
is considered sufficient evidence of the fact
in dispute(RIANO, Evidence (The Bar Lecture
Series), 2016 Ed., p. 60).
8.A.7.a. Conclusive Presumptions
Classes of Conclusive Presumptions:
1) Estoppel In Pais– Whenever a party has,
by his own declaration, act, or omission,
intentionally and deliberately led another to
believe a particular thing true, and to act
upon such belief, he cannot, in any litigation
arising out of such declaration, act or
omission, be permitted to falsify it[Rule 131,
Sec. 2(a), as amended].
2) Estoppel by Deed– The tenant is not
permitted to deny the title of his landlord at
the time of the commencement of the
relation of landlord and tenant between
them[Rule 131, Sec. 2(b), as amended].
Instances of Conclusive Presumptions:
1) Whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately led another to believe a
particular thing true, and to act upon such
belief, he cannot, in any litigation arising out
of such declaration, act or omission, be
permitted to falsify it; and
2) The tenant is not permitted to deny the title
of his landlord at the time of
commencement of the relation of landlord
and tenant between them [Rule 131, Sec.
2(b)].
 Scientific experts concur in the view that the
result of a paraffin test is not conclusive.
While it can establish the presence of
nitrates or nitrites on the hand, it does not
always indubitably show that said nitrates or
nitrites were caused by the discharge of
firearm. The person tested may have
handled one or more of a number of
Remedial Law
substances which give the same positive
reaction for nitrates or nitrites, such as
explosives,fireworks, pharmaceuticals, and
leguminous plants such as peas, beans, and
alfalfa. A person who uses tobacco may also
have nitrate or nitrite deposits on his hands
since these substances are present in the
products of combustion of tobacco. The
presence of nitrates, therefore, should be
taken only as an indication of a possibility
but not of infallibility that the person tested
has fired a gun (People vs. Baconguis, G.R. No.
149889, December 2, 2003).
Essential Elements in Relation to the Party
Sought to be Estopped: (CIK)
1. Conduct amounting to false
representation or concealment of material
facts;
2. Intent, or at least expectation that this
conduct shall be acted upon; and
3. Knowledge, actual or constructive, of the
actual facts (Planters Development Bank vs.
Sps. Lopez, G.R. No. 186332, October 23,
2013).
Essential Elements in Relation to the Party
Claiming Estoppel: (LRA)
1. Lack of knowledge and of the means of
knowledge of the truth as to the facts in
question;
2. Reliance in good faith, upon the conduct
or statements of the party to be
estopped; and
3. Action or inaction based thereon of such
character as to change the position or
status of the party claiming the estoppel,
to his injury, detriment or prejudice
(Estacio vs. PELCO, G.R. No. 183196, August
19, 2009).
Statutory Instances of Estoppel:
1. Non-owner transferor who later acquires title
passes ownership to the transferee by
operation of law (Art. 1434, NCC);
2. Agent who alienates cannot claim title
against the transferee (Art. 1435, NCC);
Bar Operations C ommissions 479
 Purple Notes
Remedial Law
3. A lessee or a bailee is estopped from
asserting title to the thing leased or received,
as against the lessor or bailor (Art. 1436, NCC);
4. In a contract between 3rd persons
concerning immovable property, if one of
them is misled by a person with respect to
the ownership or real right over the real
estate, the latter is precluded from asserting
his legal title or interest therein, provided
ALL these requisites are present:
a. Fraudulent representation or wrongful
concealment of facts is known to the
party estopped;
b. Party precluded must intend that the
other should act upon the facts as
misrepresented;
c. Party misled must have been unaware of
the true facts; and,
d. Party defrauded must have acted in
accordance with the
misrepresentation(Art. 1437, NCC).
5. One who has allowed another to assume
apparent ownership of personal property for
the purpose of making any transfer of it,
cannot, if he received the sum for which a
pledge has been constituted, set up his own
title to defeat the pledge of the property,
made by the other to a pledgee who received
the same in good faith and for value(Art. 1438
NCC).
 At the time of the perfection of the contract,
the petitioner spouses, as lessees, were
aware that the NHA, and not Virginia (the
lessor) owned the land on which the rented
house stood, yet they signed the same,
obliged themselves to comply with the
terms thereof for five years and performed
their obligations as lessees for two years.
Now they assume a completely different
legal position. They claim that the lease
contract ceased to be effective because
Virgilio‘s assumption of ownership of the
land stripped the respondents of ownership
of the building. They argue that, under
Article 440 of the Civil Code, Virgilio‘s title
over the lot necessarily included the house
on the said lot, thus automatically canceling
the contract. After recognizing the validity of
480 Center for Legal Education and Research
the lease contract for two years, the
petitioner spouses are barred from alleging
the automatic cancellation of the contract
on the ground that the respondents lost
ownership of the house after Virgilio
acquired title over the lot (Alcaraz vs. Tangga-
an, G.R. No. 128568, 401 SCRA 84, April 9,
2003).
 A party may not go back on his own acts
and representations to the prejudice of the
other party who relied upon them. In the
law of evidence, whenever a party has, by
his own declaration, act or omission,
intentionally and deliberately led another to
believe a particular thing true, and to act
upon such belief, he cannot, in any litigation
arising out of such declaration, act, or
omission, be permitted to falsify it
(Metropolitan Bank and Trust Company vs. Court
of Appeals, G.R. No. 122899, 333 SCRA 212,
June 8, 2000).
8.A.7.b. DisputablePresumptions
1. That a person is innocent of crime or wrong;
Note: The presumption of innocence is a
constitutional prerogative embodied in the
Bill of Rights. It requires that an accused
person shall be presumed innocent until the
contrary is provided in all criminal
prosecutions [Sec. 14(2), Art. III, 1987
Constitution]. This presumption continues
until overthrown by proof of guilt beyond
reasonable doubt. In this regard, any
judgment of conviction should depend upon
the strength of the evidence of the
prosecution and not on the weakness of the
defense (ANNOTATION: The Effect of
Presumption in the Prosecution of a Criminal Case,
245 SCRA 750, July 11, 1995).
2. That an unlawful act was done with an
unlawful intent;
3. That a person intends the ordinary
consequences of his voluntary act;
4. That a person takes ordinary care of his
concerns;
5. That evidence wilfully suppressed would be
adverse if produced;
 Purple Notes
6. That money paid by one to another was
due to the latter;
7. That a thing delivered by one to another
belonged to the latter;
8. That an obligation delivered up to the
debtor has been paid;
9. That prior rents or instalments had been
paid when a receipt for the later one is
produced;
10. That a person found in possession of a
thing taken in the doing of a recent
wrongful act is the taker and the doer of
the whole act; otherwise, that things which
a person possess, or exercises acts of
ownership over, are owned by him;
11. That a person in possession of an order on
himself for the payment of the money, or
the delivery of anything, has paid the
money or delivered the thing accordingly;
12.That a person acting in a public office was
regularly appointed or elected to it;
13. That official duty has been regularly
performed;
14. That a court, or judge acting as such,
whether in the Philippines or elsewhere,
was acting in the lawful exercise of
jurisdiction;
15. That all the matters within an issue raised
in a case were laid before the court and
passed upon by it; and in like manner that
all matters within an issue raised in a
dispute submitted for arbitration were laid
before the arbitrators and passed upon by
them;
16. That private transactions have been fair and
regular;
17. That the ordinary course of business has
been followed;
18. That there was a sufficient consideration for
a contract;
19. That a negotiable instrument was given or
indorsed for a sufficient consideration;
20. That an endorsement of negotiable
instrument was made before the instrument
was overdue and at the place where the
instrument is dated;
21. That a writing is truly dated;
22. That a letter duly directed and mailed was
received in the regular course of the mail;
23. That after an absence of seven years, it
being unknown whether or not the
Remedial Law
absentee still lives, he is considered dead
for all purposes, except for those of
succession.
The following shall be considered dead for
all purposes including the division of the
estate among the heirs:
a. A person on board a vessel lost during a
sea voyage, or an aircraft with is missing,
who has not been heard of for four years
since the loss of the vessel or aircraft;
b. A member of the armed forces who has
taken part in armed hostilities, and has
been missing for four years;
c. A person who has been in danger of
death under other circumstances and
whose existence has not been known for
four years;
d. If a married person has been absent for
four consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead. In case of disappearance, where
there is a danger of death under the
circumstances hereinabove provided, an
absence of only two years shall be
sufficient for the purpose of contracting a
subsequent marriage. However, in any
case, before marrying again, the spouse
present must institute a summary
proceedings as provided in the Family
Code and in the rules for declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
24. That acquiescence resulted from a belief
that the thing acquiesced in was
conformable to the law or fact;
25. That things have happened according to the
ordinary course of nature and ordinary
nature habits of life;
26. That persons acting as co-partners have
entered into a contract of co-partnership;
27. That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
28. That property acquired by a man and a
woman who are capacitated to marry each
Bar Operations C ommissions 481
 Purple Notes
Remedial Law
other and who live exclusively with each
other as husband and wife without the
benefit of marriage or under void marriage,
has been obtained by their joint efforts,
work or industry.
29. That in cases of cohabitation by a man and
a woman who are not capacitated to marry
each other and who have acquired properly
through their actual joint contribution of
money, property or industry, such
contributions and their corresponding
shares including joint deposits of money
and evidences of credit are equal.
30. That if the marriage is terminated and the
mother contracted another marriage within
three hundred days after such termination
of the former marriage, these rules shall
govern in the absence of proof to the
contrary:
a) A child born before one hundred eighty
(180) days after the solemnization of
the subsequent marriage is considered
to have been conceived during such
marriage, even though it be born within
the three hundred days after the
termination of the former marriage.
b) A child born after one hundred eighty
(180) days following the celebration of
the subsequent marriage is considered
to have been conceived during such
marriage, even though it be born within
the three hundred days after the
termination of the former marriage.
Note: It is submitted that the first rule
suffers from a typographical error. This rule
is based on Art. 168 of the Family Code,
which provides that:
―A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to have
been conceived during the former
marriage, provided it be born within three
hundred days after the termination of the
former marriag
31. That a thing once proved to exist continues
as long as is usual with things of the
nature;
482 Center for Legal Education and Research
32. That the law has been obeyed;
33. That a printed or published book,
purporting to be printed or published by
public authority, was so printed or
published;
34. That a printed or published book,
purporting contain reports of cases
adjudged in tribunals of the country where
the book is published, contains correct
reports of such cases;
35. That a trustee or other person whose duty
it was to convey real property to a
particular person has actually conveyed it to
him when such presumption is necessary to
perfect the title of such person or his
successor in interest;
36. That except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
first, and there are no particular
circumstances from which it can be
inferred, the survivorship is determined
from the probabilities resulting from the
strength and the age of the sexes,
according to the following rules:
a) If both were under the age of fifteen
years, the older is deemed to have
survived;
b) If both were above the age sixty, the
younger is deemed to have survived.
c) If one is under fifteen and the other
above sixty, the former is deemed to
have survived.
d) If both be over fifteen and under sixty,
and the sex be different, the male is
deemed to have survived, if the sex be
the same, the older.
e) If one be under fifteen or over sixty,
and the other between those ages, the
latter is deemed to have survived.
37. That if there is a doubt, as between two or
more persons who are called to succeed
each other, as to which of them died first,
whoever alleges the death of one prior to
the other, shall prove the same; in the
absence of proof, they shall be considered
to have died at the same time (Rule 131,
Sec. 3, as amended).
 Purple Notes
Evidence Suppressed Would be Adverse if
Produced, When Presumed
1. The evidence tends to prove a material
fact which imposes a liability on a party;
2. That party has it in his power to produce
evidence;
3.The evidence, from its very nature, must
overthrow the case made against the
party if it is not founded on fact; and,
4.The party refuses to produce such
evidence.
Note: Here, the presumption arises that the
evidence, if produced, would operate to the
party‘s prejudice, and support the case of his
adversary.
 No rule of law is better settled than that a
party having it in his power to prove a fact,
if it exists, which, if proved, would benefit
him, his failure to prove it must be taken as
conclusive that the fact does not exist
(Metropolitan Bank and Trust Company vs.
Court of Appeals, G.R. No. 122899, 333 SCRA
212, June 8, 2000 quoting Manila Bay Club
Corporation vs. Court of Appeals, G.R. No.
110015 October 13, 1995).
Where facts are in evidence affording legitimate
inferences to establish the ultimate fact that the
evidence is designed to prove, and the party to
be affected by the proof, with an opportunity to
do so, fails to deny or explain them, they may
well be taken as admitted with all the effect of
the inferences afforded.
 The ordinary rule is that one who has
knowledge peculiarly within his own
control, and refuses to divulge it, cannot
complain if the court puts the most
unfavorable construction upon his silence,
and infers that a disclosure would have
shown the fact to be as claimed by the
opposing party (Metropolitan Bank and Trust
Company vs. Court of Appeals, G.R. No. 122899,
333 SCRA 212, June 8, 2000 quoting Manila Bay
Club Corporation vs. Court of Appeals, G.R. No.
110015 October 13, 1995).
Remedial Law
Cases where the presumption that
―evidence suppressed would be adverse if
produced‖ does NOT apply: (DNCE)
1. the evidence is at the Disposal of both
parties;
2. the suppression was Not willful;
3. the evidence is merely Corroborative or
cumulative; and,
4. the suppression is an Exercise of a
privilege(Angeles vs. People, G.R. No. 172744,
September 29, 2008).
Plainly, there was no suppression of
evidence in this case. First, the defense had
the opportunity to subpoena Rowena even if
the prosecution did not present her as a
witness. Instead, the defense failed to call
her to the witness stand. Second, Rowena
was certified to be suffering from "Acute
Psychotic Depressive Condition" and thus
"cannot stand judicial proceedings yet." The
non-presentation, therefore, of Rowena was
not willful. Third, in any case, while Rowena
was the victim, Nimfa was also present and
in fact witnessed the violation committed on
her sister (People vs. Padrigone, G.R. No.
137664, May 9, 2002).
No presumption of legitimacy or
illegitimacy
There is no presumption of legitimacy or
illegitimacy of a child born three hundred (300)
days after the dissolution of the marriage or the
separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must
prove his allegation (Rule 131, Sec. 4).
8.A.7.c. Presumptions in civil actions and
proceedings; against an accused in
criminal cases
In Civil Actions and Proceedings
A presumption imposes on the party against
whom it is directed the burden of going forward
with evidence to rebut or meet the presumption.
Note: If the presumptions are inconsistent, the
presumption that is founded upon weightier
Bar Operations C ommissions 483
 Purple Notes
Remedial Law
considerations of policy shall apply. If
considerations of policy are equal weight,
neither presumption applies(Rule 131, Sec. 5). (n)
Bursting-Bubble Theory
Once the other party produces evidence on the
issue sufficient to support a finding contrary to
the presumed fact, the bubble is burst, and the
presumption no longer exists in the case
(Wigmore, Evidence, p. 9, 1981).
Presumption Against an Accused
inCriminal Cases
If a presumed fact that establishes guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the
presumed fact follows from the basic fact
beyond doubt(Rule 131, Sec. 6). (n)
Illustration:
Under the first paragraph of Article 308 the
essential elements of theft are (1) the taking of
personal property; (2) the property belongs to
another; (3) the taking away was done with
intent of gain; (4) the taking away was done
without the consent of the owner; and (5) the
taking away is accomplished without violence or
intimidation against person or force upon
things(People vs. Rodrigo, G.R. No. L-18507, March
31, 1966). Furthermore, jurisprudence provides
that intent to gain or animus lucrandi is an
internal act which can be established through
the overt acts of the offender and is presumed
from the proven unlawful taking(People vs.
Manlao, G.R. No. 234023, September 03, 2018).
In the above scenario, intent to gain or animus
lucrandi is the ―presumed fact‖, while the
unlawful taking is the ―basic fact‖. Proof of
unlawful taking beyond reasonable doubt
permits the inference that intent to gain was
present upon the commission of the crime
charged.
Note:For the presumption to arise, the
presumed fact must either:
484 Center for Legal Education and Research
a) Be an element of the offense charged; or
b) Negate a defense.
8.A.8. CONSTRUCTION OF THE RULES ON
EVIDENCE
Liberal Construction of the Rules on
Evidence
The Rules on Evidence shall be liberally
construed in order to promote their objective of
securing a just, speedy and inexpensive
disposition of every action and proceeding(Rule
1, Sec. 6).
8.A.9. QUANTUM OF EVIDENCE
 Civil Cases: Preponderance of evidence(Tan
jr., vs. Hosana, G.R. No. 190846, February 3,
2016).
 Criminal Cases:
 To sustain conviction: Evidence of guilt
beyond reasonable doubt(Macayan, Jr., vs.
People, G.R. No. 175842, March 18, 2015).
 Preliminary Investigation: Prima facie
Case – sufficient to engender a well-
founded belief that a crime has been
committed and that the accused is
probably guilty thereof(Yusop vs.
Sandiganbayan, G.R. No. 138859–60, February
22, 2001).
 For Issuance of Warrant of Arrest:
Probable Cause – that there is reasonable
ground to believe that the accused has
committed an offense(Hao vs. People, G.R.
No. 183345, September 17, 2014).
 Administrative Cases: Substantial
evidence – such amount of relevant evidence
which a reasonable mind might accept as
adequate to justify a conclusion(Glenda
Rodriguez–Angat vs. GSIS, G.R. No. 204738, July
29, 2015).
 Bail in Extradition Cases:The potential
extraditee must prove by "clear and
convincing evidence" that he is not a flight
risk and will abide with all the orders and
processes of the extradition court(Government
of Hong Kong Special Administrative Region vs.
Olalia Jr., G.R. No. 153675, April 19, 2007).
 Purple Notes
Remedial Law
Hierarchy of evidence (from most and Alibi, 84 Phil., 945, (ANNOTATION: Denial
burdensome to least) November 09, 1949). and Alibi, 84 Phil., 945,
November 09, 1949)
1) Proof beyond reasonable doubt A defense of denial For the defense of alibi to
which is unsupported prosper, accused-
2) Clear and convincing evidence
and unsubstantiated by appellant must prove
3) Preponderance of evidence clear and convincing that:
4) Substantial evidence evidence becomes 1. He was at some
5) Prima facie evidence negative and self- other place when
6) Probable cause serving, deserving no the crime was
weight in law, and committed; and
Proof Beyond Reasonable Doubt does not cannot be given greater 2. It was physically
mean such a degree of proof as, excluding evidentiary value over impossible for him
possibility of error, produces absolute certainty. convincing, to be at the locus
straightforward and criminis at the time
probable testimony on of its commission
Note: Only moral certainty is required, or that affirmative matters (People vs.
degree of proof which produces conviction in an (People vs. Villanueva, Villanueva, G.R. No.
unprejudiced mind (Rule 134, Sec. 2). G.R. No. 211082, 211082, December
December 13, 2017). 13, 2017).
 A conviction in a criminal case must be
supported by proof beyond reasonable Motive
doubt, which means a moral certainty that
the accused is guilty; the burden of proof General Rule: The prosecution need not prove
rests upon the prosecution (People of the motive on the part of the accused when the
Philippines vs. Patentes, G.R. No. 190178, latter has been positively identified as the
February 12, 2014). author of the crime. Motive would not bar
 Moral certainty is that degree of certainty conviction of the accused as long as the crime
that convinces and directs the itself and the identity of the perpetrator had
understanding and satisfies the reason and been indubitably established (Gorong vs. People,
judgment of those who are bound to act G.R. No. 148971, November 29, 2006).
conscientiously upon it. It is certainty Exception: Motive becomes important when
beyond reasonable doubt. This requires that the evidence on the commission of the crime is
the circumstances, taken together, should purely circumstantial or inconclusive(Crisostomo
be of a conclusive nature and tendency; vs. Sandiganbayan, G.R. No. 152398, April 14, 2005).
leading, on the whole, to a satisfactory
In a criminal case, the prosecution must prove
conclusion that the accused, and no one
two things:
else, committed the offense charged (People
of the Philippines vs. Yatar, G.R. No. 150224, 1. the fact of the crime; and
May 19, 2004). 2. the fact that the accused is the perpetrator
of the crime (People vs. Dela Peña, G.R. No.
Denial and Alibi 183567, January 19, 2009).

Denial Alibi Preponderance of Evidenceis that which is

A defense which The evidence offered by
traverses an allegation one charged with a crime
made in the pleading of to support the statement
an adverse party or in that at the time of its
the direct examination commission, he was at a
by the prosecution and place so remote or that
puts the matter so the crime took place
denied in issue, to be under such
resolved upon the trial circumstances that he
of the action could not possibly have
(ANNOTATION: Denial committed it
more convincing and more credible than the one
offered by the adverse party(Glenda Rodriguez–
Angat vs. GSIS, G.R. No. 204738, July 29, 2015).
 Preponderance of evidence" is the weight,
credit, and value of the aggregate evidence
on either side and is usually considered to
be synonymous with the term "greater
weight of the evidence" or "greater weight

Bar Operations C ommissions 485

 Purple Notes
Remedial Law
of the credible evidence." Preponderance of evidence of both parties are evenly balanced,
evidence is a phrase which, in the last the party having the burden of proof fails in that
analysis, means probability of the truth. It is issue(Lico vs. COMELEC, G.R. No. 205505,
evidence which is more convincing to the September 29, 2015).
court as worthy of belief than that which is
offered in opposition thereto (Philippine Equiponderance of Evidence in Criminal
Commercial International Bank vs. Balmaceda, and Civil Cases
G.R. No. 158143, September 21, 2011 quoting
Encinas v. National Bookstore, Inc., 485 Phil. Criminal Cases Civil Cases
683, 2004). The equipoise rule When the scale of justice
 In civil cases, the degree of evidence provides that where the shall stand on equipoise
required of a party in order to support his evidence of the parties and nothing in the
claim is preponderance of evidence or that in a criminal case is evidence inclines a
evidence adduced by one party which is evenly balanced, the conclusion to one side or
more conclusive and credible than that of constitutional the other, the court will
the other party (Stronghold Insurance presumption of find for the defendant
Company, Inc. vs. Court of Appeals, et al., G.R. innocence should tilt the (Republic vs. Mupas, G.R.
No. 83376, May 29, 1989, 173 SCRA 619, 625 scales in favor of the No. 181892, September
cited in Philippine Airlines Inc. vs. Ramos, G.R. accused (Malana vs. 8, 2015).
No. 92740, March 23, 1992). People, G.R. No.
173612, March 26,
2008).
In civil cases, the party having burden of proof
must establish his or her case by a
preponderance of evidence. Substantial Evidence is such relevant
evidence as a reasonable mind might accept as
In determining where the preponderance or adequate to support a conclusion. (Rule 133, Sec.
6, as amended)
superior weight of evidence on the issues
involved lies, the court may consider the
 Substantial evidence means more than a
following:
scintilla, but may be somewhat less than
preponderance, even if other reasonable
1. Facts and circumstances of the case;
minds might conceivably opine otherwise
2. Witnesses‘ manner of testifying;
(Spouses Manalo vs. Hon. Roldan-Confessor,
3. Witnesses‘ intelligence; G.R. No. 102358, November 19, 1992).
4. Witnesses‘ means and opportunity of
knowing the facts to which they are To satisfy the substantial evidence requirement
testifying; for administrative cases, hearsay evidence
5. Nature of the facts to which they testify; should necessarily be supplemented and
6. Probability or improbability of their corroborated by other evidence that are not
testimony; hearsay (Gumaton vs. Amador, A.C. No. 8962, July
7. Witnesses‘ interest or want of interest; and 09, 2018).
8. Witnesses‘ personal credibility so far as the
same may legitimately appear upon the trial. Clear and Convincing Evidenceisthat
evidence which produces in the mind of the trier
Note: The court may also consider the number of fact a firm belief or conviction as to
of witnesses, though the preponderance is not allegations sought to be established(Dela Paz vs.
necessarily with the greater number (Rule 133, Republic, G.R. No. 195726, November 20, 2017).
Sec. 1, as amended).
Clear and convincing proof is more than mere
Equiponderance of Evidence preponderance, but not to the extent of such
certainty as is required beyond reasonable
When the evidence in an issue of fact is in doubt as in criminal cases(Pangasinan vs.
equipoise, that is, when the respective sets of Disonglo-Almazora, G.R. No. 200558, July 01, 2015).

486 Center for Legal Education and Research

 Purple Notes
Clear and Convincing Evidence in Granting
Bail in Extradition Cases
The potential extraditee must prove by "clear
and convincing evidence" that he is not a flight
risk and will abide with all the orders and
processes of the extradition court (Government of
Hong Kong vs. Olalia, Jr., G.R. No. 153675, April 19,
2007).
 In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato
S. Puno, proposed that a new standard
which he termed "clear and convincing
evidence" should be used in granting bail in
extradition cases. According to him, this
standard should be lower than proof beyond
reasonable doubt but higher than
preponderance of evidence (Government of
Hongkong Special Administrative Region vs.
Olalia, Jr., G.R. No. 153675, April 19, 2007).
 The foregoing standard of proof required to
establish one's filiation is founded on the
principle that an order for recognition and
support may create an unwholesome
atmosphere or may be an irritant in the
family or lives of the parties, so that it must
be issued only if paternity or filiation is
established by clear and convincing
evidence (Jison vs. Court of Appeals, G.R. No.
124853, February 24, 1998).
 We begin our resolution of this issue with
the well-settled rule that the party alleging
fraud or mistake in a transaction bears the
burden of proof. The circumstances
evidencing fraud are as varied as the people
who perpetrate it in each case. It may
assume different shapes and forms; it may
be committed in as many different ways.
Thus, the law requires that it be established
by clear and convincing evidence (Republic of
the Philippines vs. Heirs of Alejaga, G.R. No.
146030, December 3, 2002).
 The defense of alibi cannot save the
appellants from conviction. They have not
established by clear and convincing
evidence that they were at some other place
and for such a period of time as to negate
their presence at the time when and the
Remedial Law
place where the crimes were committed
(People of the Philippines vs. Flores, G.R. No.
71980, March 18, 1991).
 Appellant‘s bare denial is not only an
inherently weak defense. It is not supported
by clear and convincing evidence. It cannot
thus prevail over the positive declaration of
Evelyn who convincingly identified him as
her rapist (People of the Philippines vs.
Golimlim, G.R. No. 145225, April 2, 2004).
 An allegation that one was framed can be
made with ease. That allegation must
therefore be proved by clear and convincing
evidence. The presumption that law
enforcers have regularly performed their
duties perforce requires that proof of a
frame-up must be strong (People of the
Philippines vs. Tranca, G.R. No. 110357 August
17, 1994).
Extrajudicial Confession, not sufficient
ground for conviction.
A confession is a declaration of an accused
acknowledging guilt for the offense charged, or
for any offense necessarily included therein. It is
something less than a confession and is but an
acknowledgment of some fact or circumstance
which in itself is insufficient to authorize a
conviction, and which tends only to establish the
ultimate fact of guilt(People vs. Licayan, G.R. No.
144422, February 28, 2002).
A confession is admissible in evidence if it is
satisfactorily shown to have been obtained
within the limits imposed by the 1987
Constitution. Furthermore, in order for an
extrajudicial confession to be admissible, it must
conform to the following requisites: (WAVE)
1. the confession must be in Writing.
2. the confession must be made with the
Assistance of a competent and independent
counsel, preferably of the confessant‘s
choice;
3. the confession must be Voluntary; and
4. the confession must be Express(People vs.
Tuniaco, G.R. No. 185710, January 19, 2010).
Bar Operations C ommissions 487
 Purple Notes
Remedial Law
General Rule: An extrajudicial confession
made by an accused shall not be sufficient
ground for conviction.
Exception:Whencorroborated by evidence of
corpus delicti(Rule 133, Sec. 3).
Corpus delictiis defined as the body or
substance of the crime and, in its primary sense,
refers to the fact that a crime was actually
committed. It is a compound fact made up of
two elements, namely:
1.The existence of a certain act or result
forming the basis of the criminal charge; and
2. The existence of a criminal agency as the
cause of the act or result(People vs.
Nepomuceno, G.R. No. 216062, September 19,
2018).
Circumstantial Evidence
Circumstantial evidence is sufficient for
conviction if:(MIC)
1. There is More than one circumstance;
2. The facts from which the Inferences are
derived are proven; and
3. The Combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt(Espineli vs. People, G.R. No.
179535, June 9, 2014).
Note: Inferences cannot be based on other
inferences(Rule 133, Sec. 4, as amended).
Direct Circumstantial
Evidence Evidence
It proves a challenged It indirectly proves a fact
fact without drawing any in issue, such that the
inference. factfinder must draw an
inference or reason from
circumstantial evidence.
The difference between direct evidence and
circumstantial evidence involves the relationship of
the fact inferred to the facts that constitute the
offense. Their difference does not relate to the
probative value of the evidence. The probative value
of direct evidence is generally neither greater than
nor superior to circumstantial evidence. The Rules of
Court do not distinguish between direct evidence of
fact and evidence of circumstances from which the
existence of a fact may be inferred (Tabones vs.
488 Center for Legal Education and Research
People, G.R. No. 204544, July 3, 2017).
Weight to be given opinion of expert
witness (Rule 133, Sec. 5, as amended)
In any case where the opinion of an expert
witness is received in evidence, the court has a
wide latitude of discretion in determining the
weight to be given to such opinion, and for that
purpose may consider the following:
1. Where the opinion is based upon sufficient
facts or data;
2. Whether it is the product of reliable
principles and methods;
3. Whether the witness has applied the
principles and methods reliably to the facts
of the case; and
4. Such other factors as the court may deem
helpful to make such determination.
Power of the court to stop further
evidence
The court may stop the introduction of further
testimony upon any particular point when the
evidence upon it is already so full that more
witnesses to the same point cannot be
reasonably expected to be additionally
persuasive. This power shall be exercised with
caution(Rule 133, Sec. 7, as amended).
Evidence on Motion
When a motion is based on facts not appearing
of the record, the court may hear the matter on
affidavits or depositions presented by the
respective parties, but the court may direct that
the matter be heard wholly or partly on oral
testimony or depositions(Rule 133, Sec. 8, as
amended).
8.B. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS
 Judicial notice takes the place of proof and
is of equal force. It displaces evidence and
fulfills the purpose for which the evidence is
designed to fulfill. Hence, it makes evidence
unnecessary (Moran, Comments on the Rules
 Purple Notes
of Court, 1980, p. 38 citing Alzua vs. Johnson,
21 Phil. 308).
 It is the cognizance of certain facts which
judges may properly take and act upon
without proof because they are supposed to
be known to them. It is based on
considerations of expediency and
convenience. It displaces evidence, being
equivalent to proof (Regalado,2008).
8.B.1. WHAT NEED NOT TO BE PROVED
(DASMA-P)
1. Matters which are subject of Mandatory
judicial notice of(Rule 129, Sec. 1, as
amended);
2. Matters which are subject of Discretionary
judicial notice of(Rule 129, Sec. 1, as
amended);
3. Those which are judicially Admitted(Rule
129, Sec. 4, as amended); and,
4. Matters which are legally Presumed (Rule
131, Secs. 2 to 3, as amended);
5. Matters which are not Specifically denied in
the Answer (Rule 8, Sec. 11, as amended); and
6. Facts Agreed upon by the parties (Rule 30,
Sec. 7, as amended).
8.B.2. MATTERS OF JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts
that judges may properly take and act on
without proof because these facts are already
known to them. It is the assumption by a court
of a fact without need of further traditional
evidentiary support(Juan vs. Juan, G.R. No.
221732, August 23, 2017).
Basis: This rule is based on consideration of
expediency and convenience.
Purpose:It aims to dispense the presentation of
evidence and fulfills the purpose for which the
evidence is designed to fulfill. Its purpose is to
abbreviate litigation by admission of matters
that needs no evidence because judicial notice is
a substitute for formal proof of a matter by
evidence (RIANO, Evidence (The Bar Lecture Series),
2016 Ed., p. 74).
Remedial Law
Note: Judicial notice is not judicial knowledge.
The mere personal knowledge of the judge is
not the judicial knowledge of the court, and he
is not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his action(LBP
vs. Wycoco, G.R. No. 140160, January 13, 2004).
Requisites of Judicial Notice:
1) The matter must be of common knowledge;
2) It must be well and authoritatively settled
and not doubted or uncertain; and,
3) It must be known to be within the limits of
the jurisdiction of the court(South Davao
Development Company Inc., vs. Sergio L. Gamo,
G.R. No. 171814, May 8, 2009).
Three Kinds of Judicial Notice
1. Mandatory;
2. Discretionary; and
3. That which requires a hearing.
 True, as a general rule, courts should not
take judicial notice of the evidence
presented in other proceedings, even if
these have been tried or are pending in the
same court, or have been heard and are
actually pending before the same judge.
This is especially true in criminal cases,
where the accused has the constitutional
right to confront and cross-examine the
witnesses against him (People vs. Kulais, ,
G.R. No. 100901, July 16, 1998).
 The doctrine of judicial notice rests on the
wisdom and discretion of the courts. The
power to take judicial notice is to be
exercised by courts with caution; care must
be taken that the requisite notoriety exists;
and every reasonable doubt on the subject
should be promptly resolved in the negative
(State Prosecutors vs. Muro, A.M. No. RTJ-92-
876 September 19, 1994).
 Jurisprudence dictates that judicial notice
cannot be taken of a statute before it
becomes effective. The reason is simple. A
law which is not yet in force and hence, still
inexistent, cannot be of common knowledge
capable of ready and unquestionable
demonstration, which is one of the
Bar Operations C ommissions 489
 Purple Notes
Remedial Law
requirements before a court can take nations(Bayan Muna vs. Romulo, G.R. No.
judicial notice of a fact. Evidently, it was 159618, February 1, 2011).
impossible for respondent judge, and it was
definitely not proper for him, to have taken 4. The admiralty and maritime courts of the
cognizance of CB Circular No. 1353, when world and their seals;
the same was not yet in force at the time 5. The political constitution and history of the
the improvident order of dismissal was Philippines;
issued (State Prosecutors vs. Muro, A.M. No. 6. The official acts of the legislative, executive
RTJ-92-876 September 19, 1994). and judicial departments of
 The allegation of the assessed value of the theNationalGovernmentof the Philippines;
realty must be found in the complaint, if the
action (other than forcible entry or unlawful Note:While courts are required to take
detainer) involves title to or possession of judicial notice of the laws enacted by
the realty, including quieting of title of the Congress, the rule with respect to local
realty. If the assessed value is not found in ordinances is different. Ordinances are not
the complaint, the action should be included in the enumeration of matters
dismissed for lack of jurisdiction because the covered by mandatory judicial notice under
trial court is not thereby afforded the means Section 1, Rule 129 of the Rules of Court.
of determining from the allegations of the
basic pleading whether the jurisdiction over Even where there is a statute that requires a
the subject matter of the action pertains to court to take judicial notice of municipal
it or to another court. Courts cannot take ordinances, a court is not required to take
judicial notice of the assessed or market judicial notice of ordinances that are not
value of the realty (Penta Pacific Realty before it and to which it does not have
Corporation vs Ley Construction and access. The party asking the court to take
Development Corporation, G.R. No. 161589, judicial notice is obligated to supply the court
November 24, 2014).
with the full text of the rules the party
desires it to have notice of.Counsel should
8.B.2.a. Mandatory
take the initiative in requesting that a trial
court take judicial notice of an ordinance
As a general rule, when the matter is subject to
even where a statute requires courts to take
a mandatory judicial notice, no motion or
judicial notice of local ordinances.
hearing is necessary for the court may take
judicial notice of a fact.
The intent of a statute requiring a court to
take judicial notice of a local ordinance is to
1. Existence and territorial extent of states;
remove any discretion a court might have in
2. Their political history, forms of government
determining whether or not to take notice of
and symbols of nationality;
an ordinance. Such a statute does not direct
3. The law of nations;
the court to act on its own in obtaining
evidence for the record and a party must
The Law of Nations is the body of legal
make the ordinance available to the court for
rules, norms, and standards that apply
it to take notice(SJS vs. Atienza, Jr., G.R. No.
between sovereign states and other entities
156052, February 13, 2008).
that are legally recognized as international
actors(Bentham).
7. The laws of nature;
Doctrine of Incorporation: as expressed
8. The measure of time; and
in Section 2, Article II of the 1987
9. The geographical divisions.
Constitution, the Philippines adopts the
generally accepted principles of international
Note: Courts CANNOT take judicial notice of
law and international jurisprudence as part of
FOREIGN LAWS (Relate to Rule 39, Sec. 4;
the law of the land and adheres to the policy
of peace, cooperation, and amity with all
490 Center for Legal Education and Research
 Purple Notes
Laureano vs. CA and Singapore Airlines, G.R. No.
114776, February 2, 2000).
 It would be error for the court not to take
judicial notice of an amendment to the
Rules of Court (Siena Realty v. Gal-lang, G.R.
No. 145169, May 13, 2004).
Laws of Nations Subject to Judicial Notice
The law of nations is subject to a mandatory
judicial notice. Under the Philippine Constitution,
we adopt the generally accepted principles of
international law as forming part of the law of
the land. Being parts of the law of the land, they
are therefore technically in the nature of local
laws and thus subject to mandatory judicial
notice.
Doctrine of Processual Presumption
(Doctrine of Presumed-Identity Approach)
It lays down the presumption that the foreign
law is the same as the law of the forum. It
arises if the foreign law, though properly
applicable, is either NOT alleged, or if alleged, is
NOT duly proved before a competent court(ATCI
Overseas Corporation vs. Echin, G.R. No. 178551,
October 11, 2010).
 The Philippines does not take judicial notice
of foreign laws, hence, they must not only
be alleged; they must be proven(ATCI
Overseas Corporation vs. Echin, G.R. No.
178551, October 11, 2010).
8.B.2.b.Discretionary
When the matter is subject to discretionary
judicial notice, a hearing is necessary before
judicial notice istaken of a matter.(PUJ)
1) Matters which are of Publicknowledge
These are those matters coming to the
knowledge of men generally in the course of
ordinary experiences of life, or they may be
matters which are generally accepted by
mankind as true and are capable of ready
and unquestioned demonstration.
Remedial Law
Examples:The fact that three (3) senators
have been indicted; that Mayor Lim lost in
the elections, etc.
2) Matters capable of Unquestionable
demonstration
These are facts, theories and conclusions
which have come to be established and
accepted by the specialists in the areas of
natural science, natural phenomena,
chronology, technology, geography,
statistical facts and other fields of
professional and scientific knowledge
(Francisco, 1996).
Example:That April 4, 2002 falls on a
Thursday
3) Matters ought to be known to judges
because of their Judicial functions
Example:That Filipino women as witnesses
are ordinarily docile and timid).
 Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is
not the judicial knowledge of the court, and
he is not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his action.
Judicial cognizance is taken only of those
matters which are "commonly" known (State
Prosecutors vs. Muro, A.M. No. RTJ-92-876,
September 19, 1994).
The principal guide in determining what facts
may be assumed to be judicially known is that
of notoriety. Hence, it can be said that judicial
notice is limited to facts evidenced by public
records and facts of general notoriety.
Judicially noticed fact must be one not subject
to a reasonable dispute in that it is either:
a. Generally known within the territorial
jurisdiction of the trial court; or,
b. Capable of accurate and ready determination
by resorting to sources whose accuracy
cannot reasonably be questionable
(Expertravel& Tours, Inc. v. CA, G.R. No. 152392,
May 26, 2005).
Bar Operations C ommissions 491
 Purple Notes
Remedial Law
Judicial Notice of Records of Another Case
General Rule: Courts should not take judicial
notice of the evidence presented in other
proceedings, even if these have been tried or
are pending in the same court or have been
heard and are actually pending before the same
judge (People vs. Kulais, G.R. No. 100901-08, July
16, 1998).
Exceptions:
1. When, with the knowledge of, and absent
any objection from, the opposing party,
reference is made to it for that purpose by
name and number or in some other manner
by which it is sufficiently designated; or
2. When the original record of the former case
or any part of it is actually withdrawn from
the archives by the court‘s direction at the
request or with the consent of the parties
and admitted as a part of the record of the
case then pending(Republic vs. Sandiganbayan
G.R. No. 152375, December 13, 2011).
Judicial notice of foreign laws
GeneralRule:Courts cannot take judicial notice
of foreign laws. They must be alleged and
proved.
Exceptions:
a)When the representations of the parties in
action in regard to the foreign laws
constitute admissions of fact which the other
parties and the Court are being made to rely
and act upon;
b) When the foreign laws are well and generally
known; or
c) When the foreign laws have been actually
ruled upon in other cases before it and none
of the parties claim otherwise (PCIB v. Escolin,
G.R. Nos. L-27860 L-278896, March 29, 1974);
d) When the foreign law is part of a published
treatise, periodical or pamphlet and the
writer is recognized in his profession or
calling as expert in the subject, the court, it
is submitted, may take judicial notice of the
treatise containing the foreign law (Rule 130,
Sec. 48, as amended);
492 Center for Legal Education and Research
e) When the action is closely interrelated to
another case pending between the same
parties;
f) Where there is finality of a judgment in
another case that was previously pending
determination and therefore, res judicata
(Herrera, 1999);
g.) Where the interest of the public in
ascertainthe truth are of paramount
importance.
Note: The appreciation of one judge of the
testimony of a certain witness is not binding on
another judge who heard the testimony of the
same witness on the same matter. Each
magistrate who hears the testimony of a witness
is called upon to make his own appreciation of
the evidence (People v. Langit, G.R. Nos. 134757-
58, August 4, 2000).
8.B.2.c.When Hearing is Necessary
During the Pre-Trial Before Judgment or
and the Trial on Appeal
The court, motu proprio General Rule: The court
or upon motion, shall CANNOT take judicial
hear the parties on the notice of any matter.
propriety of taking
judicial notice of any Exception: the court,
matter. motu proprio or upon
motion, may take judicial
notice of any matter and
shall hear the parties
thereon if such matter
isdecisive of a material
issue in the case.
(Rule 129, Sec. 3, as amended)
Hence, the court can take judicial notice of any
matter during [the pre-trial and] the trial as long
as there is a hearing. If trial is already over, the
court can take judicial notice only of matters
decisive of a material issue in the case as long
as there is a hearing (Francisco, p. 88).
Court’s Own Acts and Records
 A court will take judicial notice of its own
acts and records in the same case, of facts
established in prior proceedings in the
same case, of the authenticity of its own
records of another case between the same
parties, of the files of related cases in the
 Purple Notes
Remedial Law
same court, and of public records on file in General Rule: Judicial admissions should be
the same court (Republic vs. Court of Appeals, made in the same case.
G.R. No. 119288, August 18, 1997).
Exception: Where there is identity of parties
Mandatory vs. Discretionary Judicial in interest (Republic Glass vs. Qua, G.R. No.
Notice 144413, July 30, 2004 ).

Mandatory Judicial Discretionary Judicial 3. An admission may either be Oral or Written.

Notice Notice
Court is compelled to Court is not compelled to
take judicial notice take judicial notice
Takes place at court‘s May be at court‘s own
initiative initiative or on request of
a party
No motion or hearing Needs hearing
presentation of evidence.
8.B.3. JUDICIAL ADMISSIONS
An admission, oral or written, made by a party
in the course of the proceedings in the same
case, does not require proof. The admission
may be contradicted only by showing that it was
through palpable mistake or that the imputed
admission was not, in fact, made (Rule 129, Sec.
4, as amended).
General Rule: A judicial admission is
conclusive upon the party making it and does
not require proof.
Exceptions:
 Upon showing that the admission was made
through palpable mistake; or
 Upon showing that the imputed admission
was not, in fact, made(Rule 129, Sec. 4, as
amended).
Elements of Judicial Admission (PC-OW)
1. The admission must be made by a Party to
the case.
Note: Admissions of a non-party do NOT fall
within the definition of Rule 129, Sec 4.
2. The admission, to be judicial, must be made
in the course of the proceedings in the Same
case.
Note: There is no particular form for an
admission
 It is settled that judicial admissions may be
and
made: (a) in the pleadings filed by the
parties; (b) in the course of the trial either by
verbal or written manifestations or
stipulations; or (c) in other stages of judicial
proceedings, as in the pre-trial of the case.
Thus, facts pleaded in the petition and
answer, as in the case at bar, are deemed
admissions of petitioner and respondents,
respectively, who are not permitted to
contradict them or subsequently take a
position contrary to or inconsistent with such
admissions (Republic vs. Sandiganbayan, G.R.
No. 152154, July 15, 2003).
A written statement is nonetheless
competent as an admission even if it is
contained in a document which is not in itself
effective for the purpose for which it is
made, either by reason of illegality, or
incompetency of a party thereto, or by
reason of not being signed, executed or
delivered. Accordingly, contracts have been
held as competent evidence of admissions,
although they may be unenforceable
(Republic of the Philippines vs. Sandiganbayan,
G.R. No. 152154, July 15, 2003).
 Once the stipulations are reduced into
writing and signed by the parties and their
counsels, they become binding on the
parties who made them. They become
judicial admissions of the fact or facts
stipulated.29 Even if placed at a
disadvantageous position, a party may not
be allowed to rescind them unilaterally; it
must assume the consequences of the
disadvantage. (Bayas vs. Sandiganbayan, G.R.
Nos. 143689-91, November 12, 2002)
 The rule is that the testimony on the
witness stand partakes of the nature of a
formal judicial admission when a party

Bar Operations C ommissions 493

 Purple Notes
Remedial Law
testifies clearly and unequivocally to a fact
which is peculiarly within his own
knowledge (Republic of the Philippines vs.
Sandiganbayan, G.R. No. 152154, July 15,
2003).
Admission and Confession
Admission is an act, declaration or omission of
a party as to a relevant fact(Rule 130, Sec. 27).
Confession is a categorical acknowledgement
of guilt made by an accused of the offense
charged or any offense necessarily included
therein(Rule 130, Sec. 34).
Instances of Judicial Admissions
1. Admissions made in the course of the
proceedings (Rule 129, Sec. 4).
2. The genuineness and due execution of an
actionable document copied or attached to a
pleading, when the other party fails to
specifically deny under oath (Rule 8, Sec. 8, as
amended);
3. Material averments in a pleading asserting a
claim or claims, when not specifically denied
(Rule 8, Sec. 11, as amended);
4. Negative Pregnant Denial;
Note: A defense is considered a negative
pregnant when it contains a denial pregnant
with an admission of the substantial facts
alleged in the pleading. Where a fact is
alleged with qualifying or modifying language
and the words of the allegation as so
qualified or modified are literally denied, it
has been held that the qualifying
circumstances alone are denied while the
fact itself is admitted (Republic of the
Philippines vs. Sandiganbayan, G.R. No. 152154,
July 15, 2003).
5. Admissions in amended pleadings (Rule 10,
Sec. 8, as amended);
Note: Admissions in the superseded
pleading disappear from the record and
cease to be judicial admissions. While they
may nonetheless be utilized against the
pleader as extra-judicial admissions, they
must, in order to have such effect, be
494 Center for Legal Education and Research
formally offered in evidence (Director of Lands
vs. CA, G.R. No. L-31408, April 22, 1991).
6. Admissions made by counsel;
General Rule: The statements of counsel
made in open court during the hearing in his
capacity as counsel of record of a party is
deemed to be in the nature of judicial
admission made by him on behalf of his
client (SURICON vs. PLASLU, G.R. No. L-22970,
June 9, 1969).
Exceptions:
a. Upon showing that the admissions had
been made through palpable mistake;
b. Unauthorized admissions during the pre-
trial made by counsel should not bind the
client (Macaraeg vs. CA, G.R. No. L-48008,
January 20, 1989);
c. An admission which operates as a waiver,
surrender, or destruction of the client‘s
cause is beyond the scope of the
attorney‘s implied authority (People vs.
Hermanes, G.R. No. 139416, March 12, 2002).
7. Admissions obtained through depositions,
written interrogatories or requests for
admissions (Rules 23-26, as amended).
8.B.3.a. Effect of judicial admissions
General Rule: A judicial admission is
conclusive upon the party making it and does
not require proof.
Exceptions:
a) Upon showing that the admission was made
through palpable mistake; or
b) Upon showing that the imputed admission
was not, in fact, made (Rule 129, Sec. 4, as
amended).
8.B.3.b. How judicial admissions may be
contradicted
a) Upon showing that the admission was made
through palpable mistake; or
b) Upon showing that the imputed admission
was not, in fact, made (Rule 129, Sec. 4, as
amended).
 Purple Notes
Remedial Law
Judicial Admissions in Pleadings Later Self-serving Rule
Amended
1) It prohibits the admission of declaration of a
In civil cases, an amended pleading becomes a witness in his favor.
judicial admission; and the contents of the 2) It applies only to extra-judicial admission
pleading it amended which are not included in and not to those made in open court. The
the amended pleading becomes extra-judicial admission made in open court is admissible
admissions which must be offered in evidence because the witness may be cross-examined
for it to be considered by the trial court (Ching on the matter. It is however up to the court
vs. Court of Appeals, G.R. No. 110844, April 27, to appreciate the same.
2000).
8.b.3c. Pre-Trial Admissions
General Rule: Judicial admissions made in one
case are admissible at the trial of another case Pre-Trial Admissions in Civil Cases
provided they are proved and are pertinent to
the issue involved in the latter. The parties shall file with the court and serve on
the adverse party, in such manner as shall
Exceptions: ensure their receipt thereof at least three (3)
calendar days before the date of the pre-trial,
a) The said admissions were made only for their respective pre-trial briefs which shall
purposes of the first case, as in the rule of contain, among others, A summary of admitted
implied admissions and their effects under facts and proposed stipulation of facts[Rule 18,
Rule 26; Sec. 6(b), as amended].
b) The same were withdrawn with the
permission of the court therein; or The contents of the pre-trial order shall control
c) The court deems it proper to relieve the the subsequent proceedings, unless modified
party therefrom. before trial to prevent manifest injustice (Rule
18, Sec. 7, as amended).
Extrajudicial Admission and Judicial
Admission, Distinguished The Pre-trial order shall include an enumeration
of the admitted facts [Rule 18, Sec. 7(a), as
Extrajudicial Judicial amended].
Admission Admission
Made outside of the Made in the course of the Should there be no more controverted facts, or
proceedings in the same proceedings in the same no more genuine issue as to any material fact,
case. case. or an absence of any issue, or should the
Must be offered in Need not be offered in answer fail to tender an issue, the court shall,
evidence in order to be evidence since they without prejudice to a party moving for
considered by the court. already form part of the
judgment on the pleadings under Rule 34 or
records.
May be given in evidence Not only is it evidence
summary judgment under Rule 35, motu proprio
against the admitter. against the admitter but include in the pre-trial order that the case be
is binding upon him. submitted for summary judgment or judgment
May be contradicted by May not be contradicted on the pleadings, without need of position
the admitter. by the admitter except papers or memoranda(Rule 18. Sec. 10). (n)
upon showing that the
admission was made Pre-Trial Admissions in Criminal Cases
through palpable mistake All agreements or admissions made or entered
or that the imputed
during the pre-trial conference shall be reduced
admission was not, in
in writing and signed by the accused and
fact, made.
(Riguera) counsel, otherwise, they cannot be used against
the accused(Rule 118, Sec. 2).

Bar Operations C ommissions 495

 Purple Notes
Remedial Law
8.C. OBJECT (REAL) EVIDENCE
Note: Professor Wigmore adopted the term
―autoptic preference‖ to describe evidence
presented directly to the senses of the tribunal.
Objects as evidence are those addressed to the
senses of the court. When an object is relevant
to the fact in issue, it may be exhibited to,
examined or viewed by the court(Rule 130, Sec.
1).
It is not limited to the view of an object. It
covers the entire range of human senses:
hearing, taste, smell, and touch (Riano, 2016).
Physical evidence is a mute but eloquent
manifestation of truth and it ranks high in our
hierarchy of trustworthy evidence- where
physical evidence runs counter to testimonial
evidence, the physical evidence should prevail
(Bank of the Philippine Islands vs. Reyes, G.R. No.
149840-41, March 31, 2006).
 The circumstances of force and intimidation
attending the instant case were manifested
clearly not only in the victim's testimony but
also in the physical evidence presented
during the trial consisting of her torn dress
and underwear as well as the medico-legal
report. Such pieces of evidence indeed are
more eloquent than a hundred witnesses
(People of the Philippines vs. Ulzoron, G.R. No.
121979, March 2, 1998).
8.C.1. NATURE OF OBJECT EVIDENCE
Object evidence refers to those which are
addressed to the senses of the court and is not
limited to the view of an object but also to
visual, auditory, tactile, gustatory and olfactory
perception.
Note: Documents are object (real) evidence if
the purpose is to prove their existence or
condition, or the nature of the handwriting
thereon, or to determine the age of the paper
used, or the blemishes or alterations thereon, as
where falsification is alleged (Regalado, 2008).
Examples of Object Evidence
496 Center for Legal Education and Research
1. Any article or object which may be known or
perceived using the senses;
2. Examination of the anatomy of a person or of
anysubstance taken therefrom;
 A person's appearance, where relevant,
is admissible as object evidence, the
same being addressed to the senses of
the court. A person's appearance, as
evidence of age (for example, of
infancy, or of being under the age of
consent to intercourse), is usually
regarded as relevant; and, if so, the
tribunal may properly observe the
person brought before it (People vs.
Rullepa, G.R. No. 131516, March 5, 2003).
 The right against self-incrimination is
simply a prohibition against legal
process to extract from the accused's
own lips, against his will, admission of
his guilt. It CANNOT be invoked against
object evidence (People v. Malimit, G.R.
No. 109775, November 14, 1996).
3. Conduct of tests, demonstrations or
experiments;
4. Examination of representative portrayals of
the object in question (e.g.maps, diagrams);
5. Documents, if the purpose is to prove their
existence or condition, or the nature of the
handwriting thereon or to determine the age
of the paper used, or the blemishes or
alterations (Regalado, 2008);and
6. A person‘s appearance, where relevant
(People v. Rullepa, G.R. No. 131516, March 5,
2003).
 When the trier of facts observes the
appearance of a person to ascertain his
or her age, he is not taking judicial
notice of such fact; rather, he is
conducting an examination of the
evidence, the evidence being the
appearance of the person. Such a
process militates against the very
concept of judicial notice, the object of
which is to do away with the
presentation of evidence. This is not to
say that the process is not sanctioned
by the Rules of Court; on the contrary, it
does. A person's appearance, where
 Purple Notes
relevant, is admissible as object
evidence, the same being addressed to
the senses of the court (People of the
Philippines vs. Rullepa, G.R. No. 131516,
March 5, 2003).
8.C.2. REQUISITES FOR ADMISSIBILITY
1) Relevant;
2) Competent;
3) Identified;
4) Authenticated;
5) Duly Marked;
6) Formally Offered
Notes:
 Identification, authentication, and marking
are not required in Testimonial Evidence.
 Every pleading stating a party‘s claims or
defenses shall, in addition to those
mandated by Section 2, Rule 7, state the
documentary and object evidence in support
of the allegations contained in the pleading
(Rule 7, Sec. 6, as amended). (n)
Witness Needed
For the object not to be excluded by the Rules,
the same must be authenticated.
To authenticate the object, there must be
someone who should identify the object to be
the actual thing involved in the litigation. This
someone is the witness.
It must be emphasized that every evidence,
whether it be a document or an object, needs a
witness.Even object evidence requires
statements from a witness to make its way into
the realm of admissible evidence.
Testimonial evidence provides the foundation for
all types of evidence. This is a very basic rule.
8.C.3. CATEGORIES OF OBJECT EVIDENCE
1. Direct Evidence –Can prove directly the
fact for which it is offered.
Remedial Law
2. Circumstantial Evidence - Facts about
the object are proved as the basis for an
inference that other facts are true.
Demonstrative Evidence - tangible evidence
that merely illustrate a matter of importance in
the litigation.
It is NOT the actual thing, rather it represents or
―demonstrates‖ the real thing. It is not strictly
―real‖ evidence because it is not the very thing
involved in the case.
Note:Photographs, when offered as proof of
their contents, are considered documentary
evidence. The term ―photographs‖ include still
pictures, drawings, stored images, x-ray films,
motion pictures or videos(Rule 130, Sec. 2, as
amended).
Demonstrative
Real Evidence
Evidence
Tangible object that Tangible evidence that
played some actual role merely illustrate a matter
in the matter that gave of importance in the
rise to the litigation. litigation.
View of an Object or Scene
When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the
court.Court has an inherent power to order view
when there is a need to do so (Rule 130, Sec. 1).
Inspection may be made inside or outside the
courtroom. An inspection outside should be
made in the presence of the parties or at least
with the previous notice to them (In: Re Climaco,
A.C. No. 134-J (1974); Riano, citing Moran).
Categories of object evidence for purposes
of authentication
1. Unique objects– Those that have readily
identifiable marks (e.g.a caliber 40 gun with
serialnumber XXX888);
2. Objects made unique– Those that are
made readily identifiable (e.g.a bolo knife with
identifying marks on it); and
Bar Operations C ommissions 497
 Purple Notes
Remedial Law
3. Non-unique objects– Those which have
noidentifying marks and cannot be marked
(e.g.drops of blood) (Riano, 2016).
NOTE: In case of non-unique objects, the
proponent of the evidence must establish the
chain of custody.
8.C.4. CHAIN OF CUSTODY IN RELATION
TO SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS
―Chain of Custody‖ means the duly recorded
authorized movements and custody of seized
drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of
each stage, from the time of
seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in
court for destruction. Such record of movements
and custody of seized item shall include the
identity and signature of the person who held
temporary custody of the seized item, the date
and time when such transfer of custody were
made in the course of safekeeping and use in
court as evidence, and the final
disposition[People vs.Moner, G.R. No. 202206,
March 5, 2018, citing Section 1(b) of DDB Regulation
No. 1, Series of 2002].
Note:Sec. 21 of R.A. No. 9165and its
Implementing Rules and Regulations providefor
the meticulous requirement as to the chain of
custody of seized drugs and paraphernalia.
The teaching consistently upheld in our
jurisdiction is that in all prosecutions for
violations of R.A. No. 9165, the corpus delicti is
the dangerous drug itself, the existence of
which is essential to a judgment of conviction;
thus, its identity must be clearly established.
The prosecution must be able to account for
each link in the chain of custody over the
dangerous drug from the moment of seizure up
to its presentation in court as evidence of the
corpus delicti(People vs. Lumagui, G.R. No. 224293,
July 23, 2018).
Purpose:The function of the chain of custody
requirement is to ensure that the integrity and
evidentiary value of the seized items are
preserved, so much so that unnecessary doubts
498 Center for Legal Education and Research
as to the identity of the evidence are
removed(People vs. Langcua, G.R. No. 190343,
February 06, 2013).
Links in the Chain of Custody
Since it is called a chain, there must be links to
the chain. The links are the people who actually
handled or had custody ofthe object. Each link
must show how he received the object, how he
handled it to prevent substitution and how it
wastransferred to another. Each must testify to
make thefoundation complete.
The chain of custody of the dangerous drugs
has been jurisprudentially established as
follows:
First, the seizure and marking, if practicable, of
the illegal drug recovered from the accused;
Note:The apprehending team having initial
custody and control of the drugs shall,
immediately after seizure and confiscation,
physically inventory and photograph the
same in the presence of: (DAME)
 the Accused or his counsel,
 a representative from the Media,
 a representative from the DOJ, and
 any Elected public official who shall be
required to sign the copies of the
inventory and be given a copy
thereof[R.A. No. 9165, Sec. 21(1)].
"Marking" means the apprehending officer or
the poseur-buyer places his/her initials and
signature on the seized item. The marking of
the evidence serves to separate the marked
evidence from the corpus of all other similar
or related evidence from the time they are
seized from the accused until they are
disposed of at the end of the criminal
proceedings, thus, preventing switching,
planting or contamination of evidence(People
of the Philippines vs. Omamos,G.R. No. 223036,
July 10, 2019).
Second, the turnover of the illegal drug by the
apprehending officer to the investigating officer;
 Purple Notes
Third, the turnover by the investigating officer
to the forensic chemist for laboratory
examination; and
Fourth, the turnover and submission of the
marked illegal drug by the forensic chemist to
court (People vs. Lumagui, G.R. No. 224293, July 23,
2018).
 The failure of the arresting officers to
prepare the required inventory and
photograph of the seized dangerous drug
militated against the guilt of an accused. For
under these circumstances, the integrity and
evidentiary value of the corpus delicti
cannot be deemed to have been
preserved(People of the Philippines vs.
Omamos, G.R. No. 223036, July 10, 2019).
 Generally, non-compliance with the chain of
custody rule results to the acquittal of the
accused, for it compromises the identity and
integrity of the corpus delicti. The exception
is whenever compelling reasons exist that
would otherwise warrant deviation from the
established protocol so long as the integrity
and evidentiary value of the seized items
are properly preserved(Ibid.).
 The amendment under R.A. No. 10640 uses
the disjunctive "or," i.e., "with an elected
public official and a representative of the
National Prosecution Service or the media."
Thus, a representative from the media and
a representative from the
NationalProsecution Service are now
alternatives to each other(People of the
Philippins vs. Alibudbud, G.R. No. 237850,
September 16, 2020).
 Jurisprudence has consistently held that in
the seizure and confiscation of seized drugs
in the implementation of a search warrant,
the Court religiously applies Sec. 21 of R.A.
No. 9165, as amended, including the
mandatory presence of the required
witnesses during the physical inventory and
taking of photographs of the seized drugs,
and the preservation of the integrity and
evidentiary value of the same in applying
the saving clause under the IRR (Tumabini vs.
People of the Philippines, G.R. No. 224495,
February 19, 2020).
Remedial Law
8.C.5. DNA EVIDENCE (A.M. No. 06-11-5-SC,
October 2, 2007)
8.C.5.a. Meaning of DNA
―DNA‖ means deoxyribonucleic acid, which is
the chain of molecules found in every nucleated
cell of the body. The totality of an individual‘s
DNA is unique for the individual, except identical
twins.
―DNA evidence‖ constitutes the totality of the
DNA profiles, results and other genetic
information directly generated from DNA testing
of biological samples.
 Biological sample is any organic
material originating from a person‘s body,
even if found in inanimate objects, that is
susceptible to DNA testing. This includes
blood, saliva, and other body fluids,
tissues, hairs and bones (Estate of Rogelio
G. Ong vs. Diaz, G.R. No. 171713, December
17, 2007).
―DNA profile‖ means genetic information
derived from DNA testing of a biological sample
obtained from a person, which biological sample
is clearly identifiable as originating from that
person.
―DNA testing‖ means verified and credible
scientific methods which include the extraction
of DNA from biological samples, the generation
of DNA profiles and the comparison of the
information obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty, whether
or not the DNA obtained from two or more
distinct biological samples originates from the
same person (direct identification) or if the
biological samples originate from related
persons (kinship analysis)(A.M. No. 06-11-5-SC,
Sec.3).
 In case proof of filiation or paternity
would be unlikely to satisfactorily
establish or would be difficult to obtain,
DNA testing, which examines genetic
codes obtained from body cells of the
illegitimate child and any physical residue
Bar Operations C ommissions 499
 Purple Notes
Remedial Law
of the long dead parent could be resorted
to (Tecson vs. Commission on Elections, G.R.
No. 161434, March 3, 2004). Stated
differently, even if the putative parent
had already died, any of the biological
samples, as may be available, may be
used for DNA testing.
8.C.5.b. Application for DNA testing order
The appropriate court may, at any time, either
motu proprio or on application of any person
who has a legal interest in the matter in
litigation, order a DNA testing.
Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
1. A biological sample exists that is relevant to
the case;
2. The biological sample:
a) was not previously subjected to the type
of DNA testing now requested; or
b) was previously subjected to DNA testing,
but the results may require confirmation
for good reasons;
3. The DNA testing uses a scientifically valid
technique;
4. The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
5. The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy of integrity of the DNA
testing.
This shall not preclude a DNA testing, without
need of a prior court order, at the request of
any party, including law enforcement agencies,
before a suit or proceeding is commenced(A.M.
No. 06-11-5-SC, Sec.4).
Note: A court order is not always required
before undertaking a DNA testing. The last
paragraph of Sec. 4 allows a testing without a
prior court order, if done before a suit or
proceeding is commenced, at the request of any
party, including law enforcement agencies
(Riano).
500 Center for Legal Education and Research
The grant of DNA testing application shall not be
construed as an automatic admission into
evidence of any component of the DNA evidence
that may be obtained as a result thereof(A.M.
No. 06-11-5-SC, Sec. 5).
Remedies against an order granting DNA
testing
An order granting the DNA testing shall be
immediately executory and shall not be
appealable.
Any petition for certiorari initiated therefrom
shall not, in any way, stay the implementation
thereof, unless a higher court issues an
injunctive order(A.M. No. 06-11-5-SC, Sec. 5).
8.C.5.c.Post-conviction DNA testing;
remedy
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment provided that:(ERP)
1. A biological sample Exists;
2. Such sample is Relevant to the case; and
3. The testing would Probably result in the
reversal or modification of the judgment of
conviction.
Confidentiality: DNA profiles and all results or
other information obtained from DNA testing
shall be confidential.
General Rule:
A DNA profile and all results or other
information obtained from DNA testing shall only
be released to any of the following, under such
terms and conditions as may be set forth by the
court:
1.Person from whom the sample was taken;
2. Lawyers representing parties in the case or
action where the DNA evidence is offered
and presented or sought to be offered and
presented;
3. Lawyers of private complainants in a criminal
action;
 Purple Notes
4. Duly authorized law enforcement agencies;
and
5.Other persons as determined by the court.
Exception: Unless the court orders the
disclosure to some other entities(A.M. No. 06-11-
5-SC, Sec. 11).
Remedy if the Results Are Favorable to the
Convict
The convict or the prosecution may file a
petition for a writ of habeas corpus in the court
of origin if the results of the post-conviction
DNA testing are favorable to the convict. In the
case the court, after due hearing finds the
petition to be meritorious, if shall reverse or
modify the judgment of conviction and order the
release of the convict, unless continued
detention is justified for a lawful cause.
A similar petition may be filed either in the Court
of Appeals or the Supreme Court, or with any
member of said courts, which may conduct a
hearing thereon or remand the petition to the
court of origin and issue the appropriate
orders(A.M. No. 06-11-5-SC, Sec. 10).
8.C.5.d. Assessment of probative value of
DNA evidence and admissibility
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
 The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
 The DNA testing methodology, including the
procedure followed in analyzing the samples,
the advantages and disadvantages of the
procedure, and compliance with the
scientifically valid standards in conducting
the tests;
 The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of the
analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
Remedial Law
casework and credibility shall be properly
established; and
 The reliability of the testing result.
Note: The provisions of the Rules of Court
concerning the appreciation of evidence shall
apply suppletorily(A.M. No. 06-11-5-SC, Sec. 7).
8.C.5.e.Rules on evaluation of reliability of
the DNA testing methodology
In evaluating whether the DNA testing
methodology is reliable, the court shall consider
the following:
 The falsifiability of the principles or methods
used, that is, whether the theory or
technique can be and has been tested;
 The subjection to peer review and
publication of the principles or methods;
 The general acceptance of the principles or
methods by the relevant scientific
community;
 The existence and maintenance of standards
and controls to ensure the correctness of
data generated;
 The existence of an appropriate reference
population database; and
 The general degree of confidence attributed
to mathematical calculations used in
comparing DNA profiles and the significance
and limitation of statistical calculations used
in comparing DNA profiles(A.M. No. 06-11-5-
SC, Sec. 8).
8.D. DOCUMENTARY EVIDENCE
8.D.1. MEANING OF DOCUMENTARY
EVIDENCE
Documentary evidenceconsists of writings,
recordings, photographs or any material
containing letters, words, sounds, numbers,
figures, symbols, or their equivalent, or other
modes of written expression offered as proof of
their contents.
Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or
videos (Rule 130, Sec. 2, as amended). (n)
Bar Operations C ommissions 501
 Purple Notes
Remedial Law
Any object or material having any matter
expressed or described upon it by marks
capable of being read.
Note: A document may be offered as object
evidence or documentary evidence depending
on the purpose for which it is presented in
court. It is object evidence if the purpose of its
presentation is to prove its existence. In
contrast, it is documentary evidence if the
purpose is to prove the contents of the
document.
8.D.2 REQUISITES FOR ADMISSIBILITY
a) Relevant
b) Competent
c) Identified Not present in
d) Authenticated Testimonial
e) Duly Marked; and Evidence
f) Formally Offered
Rules in Documentary Evidence
1) Original Document Rule
2) Parol Evidence Rule
3) Electronic Evidence Rule
 While baptismal certificates may be
considered public documents, they can only
serve as evidence of the administration of
the sacraments on the dates so specified.
They are not necessarily competent
evidence of the veracity of entries therein
with respect to the child‘s paternity (Salas vs.
Matusalem, G.R. No. 180284, September 11,
2013).
 A certificate of live birth purportedly
identifying the putative father is not
competent evidence of paternity when there
is no showing that the putative father had a
hand in the preparation of the certificate.
The local civil registrar has no authority to
record the paternity of an illegitimate child
on the information of a third person (Puno
vs. Puno Enterprise Inc., G.R. No. 177066,
September 11, 2009).
8.D.3. ORIGINAL DOCUMENT RULE
(Formerly known as the ―Best Evidence Rule‖)
502 Center for Legal Education and Research
General Rule: When the subject of inquiry is
the contents of a document, writing, recording,
photograph or other record, no evidence is
admissible other than the original document
itself.
 The [Original Document] Rule stipulates
that in proving the terms of a written
document the original of the document
must be produced in court. When the
evidence sought to be introduced
concerns external facts, such as the
existence, execution or delivery of the
writing, without reference to its terms,
the [Original Document] Rule cannot be
invoked. In such a case, secondary
evidence may be admitted even without
accounting for the original(Heirs of
Margarita Prodon vs. Heirs of Maximo S.
Alvarez and Valentina Clave, G.R. No. 170604,
September 2, 2013).
Exceptions: (CLAP-N)
1. When the original has been Lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
Laying the Foundation
When the original document has been lost or
destroyed, or cannot be produced in court,
the offeror must prove the following: (ELR)
a. Existence or due execution of the original;
b. Loss and destruction of the original or the
reason for its non-production in court,
without bad faith on the part of the
offeror (Rule 130, Sec. 5); and
c. Reasonable diligence and good faith on
the part of the offeror in the search for or
attempt to produce the originals (Citibank
vs. Teodoro, G.R. No. 150905, September 23,
2003).
The offeror may prove the contents on
theoriginal document: (CRT)
i. By a Copy of the original;
 Purple Notes
ii. By a Recital of its contents in some
authentic document; or
iii. By the Testimony of a witnesses (Rule 130,
Sec. 5).
Note: The order stated must be followed.
2. When the original is in the Custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice, or the
original cannot be obtained by local judicial
processes or procedures;
Laying the Foundation
If the document is in the custody or under
the control of adverse party, the offeror must
prove the following: (PERF)
a. Existence of the original;
b. Possession of the original by the adverse
party;
c. Reasonable notice to produce to the
adverse party; and
d. Failure of the adverse party to produce
the original despite such notice (Rule 130,
Sec. 6).
Note: The non-production by the accused of
the original document unless justified under
the exceptions in Section [3], Rule 130 of the
Rules of Court, gives rise to the presumption
of suppression of evidence adverse to him
(Vallarta vs. CA, G.R. No. L-36543, July 27, 1988).
3. When the original consists of numerous
Accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole;
Note: When the contents of documents,
records, photographs, or numerous accounts
are voluminous and cannot be examined in
court without great loss of time, and the fact
sought to 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.
Remedial Law
The originals shall be available for
examination or copying, or both, by the
adverse party at a reasonable time and
place. The court may order that they be
produced in court (Rule 130, Sec. 7). (n)
Laying the Foundation
a. When the contents of documents,
records, photographs, or numerous
accounts are voluminous;
b. Such account or documents cannot be
examined in court without great loss of
time; and
c. The fact sought to be established is only
the general result of the whole.
4. When the original is a Public record in the
custody of a public officer or is recorded in a
public office; and
Note: When the original of document is in
the custody of public officer or is recorded in
a public office, its contents may be proved by
a certified copy issued by the public officer in
custody thereof (Rule 130, Sec. 8, as amended).
5. When the original is Not closely-related to a
controlling issue (Rule 130, Sec. 3).(n)
Purposes:
1. To prevent fraud – If a party is in
possession of such evidence and withholds it,
and seeks to substitute inferior evidence in
its place, the presumption naturally arises
that the better evidence is withheld for
fraudulent purposes which its production
would expose and defeat.
2. To exclude uncertainties in the
contents of a document – the best
evidence rule accepts the document itself as
the best evidence of its contents because it is
certain; and rejects a copy thereof, because
of the uncertainty of its contents caused by
the hazards of faulty duplication, or an oral
description thereof, because of the
uncertainty caused by the frailties of human
recollection.
Bar Operations C ommissions 503
 Purple Notes
Remedial Law
The primary purpose of the [Original Document]
Rule is to ensure that the exact contents of a
writing are brought before the court,
considering that (a) the precision in presenting
to the court the exact words of the writing is of
more than average importance, particularly as
respects operative or dispositive instruments,
because a slight variation in words may mean a
great difference in rights; (b) there is a
substantial hazard of inaccuracy in the human
process of making a copy by handwriting or
typewriting; and (c) as respects oral testimony
purporting to give from memory the terms of a
writing, there is a special risk of error, greater
than in the case of attempts at describing other
situations generally. The rule further acts as an
insurance against fraud (Heirs of Margarita Prodon
vs. Heirs of Maximo S. Alvarez and Valentina Clave,
G.R. No. 170604, September 2, 2013).
8.D.3.a. Meaning of Original Document
Rule
Under the Original Document Rule which
requires that the highest available degree of
proof must be produced, no evidence which is
merely substitutionary in its nature shall be
received so long as the original evidence can be
had. In other words, the contents of a
document must be proved by producing the
document itself (ANNOTATION: Admissibility of
Documentary Evidence, 241 SCRA 225, February 09,
1995).
8.D.3.b. When not applicable
When Original Document Rule does NOT
apply:
The [Original Document Rule] applies only when
the content of such document is the subject of
the inquiry.
Where the issue is only as to whether such
document was actually executed, or exists, or
on the circumstances relevant to or surrounding
its execution, the best evidence rule does not
apply and testimonial evidence is admissible.
Any other substitutionary evidence is likewise
admissible without need for accounting for the
504 Center for Legal Education and Research
original(Citibank, N.A. vs. Sabeniano, G.R. No.
156132, October 12, 2006).
 The [original document] rule does NOT
apply to the marked money in a buy bust
operation because the inquiry is not on the
contents of the marked bill, but merely its
existence (People vs. Tandoy, G.R. No. 80505,
December 4, 1990).
Waiver of the Original Document Rule
 The [original document] rule may be
waived if not raised in the trial. In one
case, although the marriage certificate, the
marriage license, and other pieces of
documentary evidence were only
photocopies, the fact that these have been
examined and admitted by the trial court,
with no objections having been made as to
their authenticity and due execution, means
that these documents are deemed
sufficient proof of the facts contained
therein (Sy vs. Court of Appeals, 330 SCRA
550).
8.D.3.c. Meaning of Original Document and
Duplicate
An Original Documentrefers to:
a) The document itself; or
b)Any counterpart intended to have the same
effect by a person executing or issuing it.
An original of a photograph includes:
a)The negative; or
b) Any print therefrom.
If data is stored in a computer or similar
device, any printout or other output readable by
sight or other means, shown to reflect the data
accurately, is an original[Rule 130, Sec. 4(a)]. (n)
 A facsimile transmission is not the
functional equivalent of an original under
the Best Evidence Rule. In an ordinary
facsimile transmission, there exists an
original paper-based information or data
that is scanned, sent through a phone line,
 Purple Notes
and re-printed at the receiving end(MCC
Industrial Sales Corporation vs. Ssangyong
Corporation, G.R. No. 170633, October 17,
2007).
A Duplicate is a counterpart produced:
(IMPRRO)
 By the same Impression as the original;
 From the same Matrix
 By means of Photography, including
enlargementsand miniatures;
 By mechanical or electronic Re-recording;
 By chemical Reproduction; or
 By Other equivalent techniques which
accurately reproduce the original [Rule 130,
Sec. 4(b)].
General Rule: A duplicate is admissible to the
same extent as an original.
Exceptions:
a.) When a genuine question is raised as to the
authenticity of the original, or
b.) In the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of
the original[Rule 130, Sec. 4(c)].
 When carbon sheets are inserted between
two or more sheets of writing paper so that
the writing of a contract upon the outside
sheet, including the signature of the party
to be charged thereby, produces facsimile
upon the sheets beneath, such signature
being thus reproduced by the same stroke
of the pen which made the surface or
exposed impression, all of the sheets so
written on are regarded as duplicate
originals and either of them may be
introduced in evidence as such without
accounting for the non-production of the
others (People of the Philippines vs. Tan, G.R.
No. L-14257, July 31, 1959).
 While we generally admit in evidence and
give probative value to photocopied
documents in administrative proceedings,
allegations of forgery and fabrication
should prompt the adverse party to present
Remedial Law
the original documents for inspection. It
was incumbent upon the respondents to
present the originals, especially in this case
where the petitioners had submitted their
specimen signatures. Instead, the
respondents effectively deprived the
petitioners of the opportunity to examine
and controvert the alleged spurious
evidence by not adducing the originals.
This Court is thus left with no option but to
rule that the respondents‘ failure to present
the originals raises the presumption that
evidence willfully suppressed would be
adverse if produced (Loon vs. Power Master,
Inc., G.R. No. 189404, December 11, 2013).
8.D.3.d. Secondary Evidence; Summaries
When and How Secondary Evidence May
Be Admitted
First Situation: When original document is
unavailable
Laying the Foundation
When the original document has been lost or
destroyed, or cannot be produced in court, the
offeror must prove the following:(ELR)
1. Existence or due execution of the original;
2. Loss and destruction of the original or the
reason for its non-production in court,
without bad faith on the part of the
offeror(Rule 130, Sec. 5); and
3. Reasonable diligence and good faith on the
part of the offeror in the search for or
attempt to produce the originals(Citibank vs.
Teodoro, G.R. No. 150905, September 23, 2003).
Note: The correct order of proof is as
follows: existence, execution, loss, and
contents. At the sound discretion of the
court, this order may be changed if
necessary(Citibank Mastercard vs. Teodoro, G.R.
No. 150905, September 23, 2003).
The offeror may prove the contents on the
original document: (CRT)
a.) By a Copy of the original;
Bar Operations C ommissions 505
 Purple Notes
Remedial Law
b.) b) By a Recital of its contents in some
authentic document; or
c.) By the Testimony of a witnesses (Rule 130,
Sec. 5).
Note: The order stated must be followed.
 In establishing the execution of a document,
the same may be established by the person
or persons who executed it, by the person
before whom its execution was
acknowledged, or by any person who was
present and saw it executed or who, after
its execution, saw it and recognized the
signatures; or by a person to whom the
parties to the instrument had previously
confessed the execution thereof (De Vera
vs. Aguilar, G.R. No. 83377, February 9,
1993).
 Where the original has been lost or
destroyed, the offeror may prove its
contents by a recital of its contents in some
authentic document or by testimony of
witnesses. The certificate is one such
authentic document (Municipality of
Victorias vs. CA, 149 SCRA 32).
 Failure to prove loss of all the originals
without fault of the offeror renders
secondary evidence inadmissible (De Vera
vs. Aguilar, 218 SCRA 602).
 Secondary evidence is admissible when the
original documents were actually lost or
destroyed. But prior to the introduction of
such secondary evidence, the proponent
must establish the former existence of the
instrument. The correct order of proof is as
follows: Existence; execution; loss; contents
although this order may be changed, if
necessary, in the discretion of the court.
The sufficiency of proof offered as a
predicate for the admission of an alleged
lost deed lies within the judicial discretion of
the trial court under all the circumstances of
the particular case (De Vera vs. Aguilar, 218
SCRA 602).
 For secondary evidence to be admissible,
there must be satisfactory proof of (1) the
due execution of the original; (2) the
original‘s loss, destruction or unavailability
that is not due to the offeror‘s bad faith;
506 Center for Legal Education and Research
and (3) reasonable diligence and good faith
in the search for or attempt to produce the
original (Citibank Mastercard vs. Teodoro, G.R.
No. 150905, September 23, 2003).
Second Situation: When original document is
in adverse party's custody or control
Laying the Foundation
If the document is in the custody or under the
control of adverse party, the offeror must prove
the following: (PERF)
1. Existence of the original;
2.Possession of the original by the adverse
party;
3.Reasonable notice to produce to the adverse
party; and
4.Failure of the adverse party to produce the
original despite such notice (Rule 130, Sec. 6).
 It is not necessary for a party seeking to
introduce a copy, to prove that the original is
in actual possession of the adverse party as
long as it is under his control; the adverse
party need not admit that it is in his
possession before a copy may be introduced
(Villa Rey Transit, Inc. vs. Ferrer, G.R. No. L-
23893, October 29, 1968).
General Rule:
If the original is not available, the same may be
substituted by presenting the following in the
order stated:(CRT)
1. By a Copy of the original;
2. By a Recital of its contents in some authentic
document; or
3.By the Testimony of a witnesses (Rule 130, Sec.
5).
Note: This principle is commonly known as the
―Substitutionary Rule.‖
Exception:
The order does not apply where the law
specifically provides for the class or quantum of
 Purple Notes
secondary evidence to establish the contents of
the document.
Note:This principle is commonly known as the
―Definite Evidentiary Rule.‖
Third Situation: When the original consists of
numerous accounts;Summaries(n)
Laying the Foundation
1. When the contents of documents, records,
photographs, or numerous accounts are
voluminous;
2.Such account or documents cannot be
examined in court without great loss of time;
and
3. The fact sought to be established is only the
general result of the whole.
Note: When the contents of documents,
records, photographs, or numerous accounts are
voluminous and cannot be examined in court
without great loss of time, and the fact sought
to 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.
The originals shall be available for examination
or copying, or both, by the adverse party at a
reasonable time and place. The court may order
that they be produced in court (Rule 130, Sec. 7).
(n)
 As a condition precedent to the admission of
a summary of numerous documents:
a. The proponent must prove that the source
documents being summarized are also
admissible if presented in court;
b. The source documents must be shown to
be original, and not secondary; and
c. The source documents must likewise be
accessible to the opposing party so that
the correctness of the summary of the
voluminous records may be tested on
cross-examination and/or may be refuted
in pleadings.
Remedial Law
In ordinary trial-type proceedings, a proper
foundation for the introduction of a summary
may be established through the ―testimony
of the person who is responsible for the
summary's preparation, or the person who
supervised the preparation of the summary.‖
If the source documents of the summary are
non-original, the trial court would commit a
grave error in admitting and/or giving
probative value to the summary of non-
original documents; the evidence admitted
would be double hearsay(Republic vs.
Mupas,G.R. No. 181892, September 08, 2015).
Fourth Situation: Evidence admissible
whenoriginaldocument is a public record.
When the original of document is in the custody
of public officer or is recorded in a public office,
its contents may be proved by a certified copy
issued by the public officer in custody thereof.
Note: A party who calls for the production of a
document and inspects the same is not obliged
to offer it as evidence(Rule 130, Sec. 9, as
amended).
8.D.4 ELECTRONIC EVIDENCE
(A.M. No. 01-7-01-SC)
Electronic Documents as Functional
Equivalent of Paper-Based Documents
Whenever a rule of evidence refers to the term
of writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document as defined in these Rules(Rule 3, Sec.
1).
Cases Covered
The Rules on Electronic Evidence shall apply to
all civil actions and proceedings, as well as
quasi-judicial and administrative cases(Rule 1,
Sec. 2).
Electronic Document
Bar Operations C ommissions 507
 Purple Notes
Remedial Law
1) Refers to information or the representation of transmitted, it does not necessarily mean that it
information, data, figures, symbols, or other will give rise to a right or extinguish an
modes of written expression, described or obligation, unlike an electronic document(MCC
however represented, by which a right is Industrial Sales Corporation vs. Ssangyong
established or an obligation extinguished, or Corporation, G.R. No. 170633, October 17, 2007).
by which a fact may be proved and affirmed,
which is received, recorded, transmitted,  An electronic document, also known
stored, processed, retrieved, or produced interchangeably as electronic data message.
electronically; and It is submitted that the rule does not
2) It includes digitally signed documents and absolutely require that the electronic
any print-out or output, readable by sight or document be initially generated or produces
other means, which accurately reflects the electronically. A contract, for instance,
electronic data message or electronic prepared through the traditional written way
document[Rule 2, Sec. 1(h)]. may be converted to an electronic document
if transmitted or received or later recorded
Electronic Data Message refers to electronically (Riano, 2016).
information generated, sent, received or stored
by electronic, optical or similar means [Rule 2, The confidential character of a privileged
Sec. 1(g)]. communication is not lost solely on the ground
that it is in the form of an electronic document
Electronic Document vs. Electronic Data (Rule 3, Sec. 3).
Message
Method of Proof
ELECTRONIC ELECTRONIC DATA
DOCUMENT MESSAGE Affidavit of Evidence
Information or the Information generated,
representation of sent, received or stored
All matters relating to the admissibility and
information, data, by electronic, optical or evidentiary weight of an electronic document
figures, symbols, or other similar means[Rule 2, may be established by an affidavit stating facts
modes of written Sec. 1(g)]. of direct personal knowledge of the affiant or
expression, described or based on authentic records. The affidavit must
however represented, by affirmatively show the competence of the affiant
which a right is to testify on the matters contained therein (Rule
established or an 9, Sec. 1).
obligation extinguished,
or by which a fact may
be proved and affirmed,
Cross-Examination of Deponent
which is received,
The affiant shall be made to affirm the contents
recorded, transmitted,
stored, processed,
of the affidavit in open court and may be cross-
retrieved, or produced examined as a matter of right by the adverse
electronically. It includes party (Rule 9, Sec. 2).
digitally signed
documents and any print- Authentication of electronic documents
out or output, readable and electronic signatures
by sight or other means,
which accurately reflects Burden of Proving Authenticity
the electronic data
message or electronic
document [Rule 2, Sec.
The person seeking to introduce an electronic
1(h)]. document in any legal proceeding has the
burden of proving its authenticity (Rule 5, Sec. 1).
While "data message" has reference to Manner of Authentication:
information electronically sent, stored or

508 Center for Legal Education and Research

 Purple Notes
Before any private electronic document offered
as authentic is received in evidence, its
authenticity must be proved by any of the
following means:
a)By evidence that it had been digitally signed
by the person purported to have signed the
same;
b) By evidence that other appropriate security
procedures or devices as may be authorized
by the Supreme Court or by law for
authentication of electronic documents were
applied to the document; or
c) By other evidence showing its integrity and
reliability to the satisfaction of the judge (Rule
5, Sec. 2).
Electronically Notarized Document
A document electronically notarized in
accordance with the rules promulgated by the
Supreme Court shall be considered as a public
document and proved as a notarial document
under the Rules of Court (Rule 5, Sec. 3).
Electronic Signature
An electronic signature or a digital signature
authenticated in the manner prescribed
hereunder is admissible in evidence as the
functional equivalent of the signature of a
person on a written document (Rule 6, Sec. 1).
Authentication of Electronic Signature
An electronic signature may be authenticated in
any of the following manner:
a) By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
b) By any other means provided by law; or
c) By any other means satisfactorily to the judge
as establishing the genuineness of the
electronic signature (Rule 6, Sec. 2).
Disputable Presumptions relating to
Electronic Signatures
Upon the authentication of an electronic
signature, it shall be presumed that:
Remedial Law
1. The electronic signature is that of the person
to whom it correlates;
2. The electronic signature was affixed by that
person with the intention of authenticating or
approving the electronic document to which
it is related or to indicate such person‘s
consent to the transaction embodied therein;
and
3. The methods or processes utilized to affix or
verify the electronic signature operated
without error or fault (Rule 6, Sec. 3).
Digital signature refers to an electronic
signature consisting of a transformation of an
electronic document or an electronic data
message using an asymmetric or public
cryptosystem such that a person having the
initial untransformed electronic document and
the signer‘s public key can accurately determine:
1. Whether the transformation was created
using the private key that corresponds to the
signer‘s public key; and
2. Whether the initial electronic document had
been altered after the transformation was
made [Rule 2, Sec. 1(e)].
Disputable Presumptions in relation to
Digital Signatures
Upon the authentication of a digital signature, it
shall be presumed that:
1. The electronic signature is that of the person
to whom it correlates;
2. The electronic signature was affixed by that
person with the intention of authenticating or
approving the electronic document to which
it is related or to indicate such person‘s
consent to the transaction embodied therein;
and
3. The methods or processes utilized to affix or
verify the electronic signature operated
without error or fault (Rule 6, Sec. 3).
4. The information contained in a certificate is
correct;
5. The digital signature was created during the
operational period of a certificate;
Bar Operations C ommissions 509
 Purple Notes
Remedial Law
6. No cause exists to render a certificate invalid
or revocable;
7. The message associated with a digital
signature has not been altered from the time
it was signed; and
8. A certificate had been issued by the
certification authority indicated therein (Rule
6, Sec. 4).
Best Evidence Rule (Referred to as the
―Original Document Rule‖ in the 2019 Revised
Rules of Evidence)
An electronic document shall be regarded as the
equivalent of an original document under the
Best Evidence Rule if it is a printout or output
readable by sight or other means, shown to
reflect the data accurately (Rule 4, Sec. 1).
Copies as Equivalent to the Originals
General Rule:
When a document is in two or more copies
executed at or about the same time with
identical contents, or is a counterpart produced
by the same impression as the original, or from
the same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction, or by
other equivalent techniques which accurately
reproduces the original, such copies or
duplicates shall be regarded as the equivalent of
the original.
Exceptions:
Copies or duplicates shall not be admissible to
the same extent as the original if:
a)A genuine question is raised as to the
authenticity of the original; or
b)In the circumstances it would be unjust or
inequitable to admit a copy in lieu of the
original(Rule 4, Sec. 2).
 Facsimile transmissions are not, in this
sense, ―paperless,‖ but verily are paper-
based. Furthermore, the terms ―electronic
data message‖ and ―electronic document,‖
as defined under the Electronic Commerce
Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile
510 Center for Legal Education and Research
transmission cannot be considered as
electronic evidence. It is not the
functional equivalent of an original under
the Best Evidence Rule and is not
admissible as electronic evidence. Since a
facsimile transmission is not an ―electronic
data message‖ or an ―electronic
document,‖ and cannot be considered as
electronic evidence by the Court, with
greater reason is a photocopy of such a fax
transmission not electronic evidence (MCC
Industrial Sales Corporation vs. Ssangyong
Corporation, G.R. No. 170633, October 17,
2007).
Business Records as Exception to the
Hearsay Rule
A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses, made by electronic, optical or
other similar means at or near the time of or
from transmission or supply of regular course of
conduct of a business activity, and such was the
regular practice to make the memorandum,
report, record or data compilation by electronic,
optical or similar means, all of which are shown
by the testimony of the custodian or other
qualified witnesses, is excepted from the rule on
hearsay evidence (Rule 8, Sec. 1).
Such presumption may be overcome by
evidence of the untrustworthiness of the:
a) Source of information; or
b) Method or circumstances of the preparation,
transmission or storage thereof (Rule 8, Sec.
2).
Audio, video and similar evidence
Audio, photographic and video evidence of
events, acts or transactions shall be inadmissible
provided it shall be shown, presented or
displayed to the court and shall be identified,
explained or authenticated by:
a) The person who made the recording; or
b) Some other person competent to testify on
the accuracy thereof (Rule 11, Sec. 1).
 The rule in this jurisdiction is that
photographs, when presented in evidence,
 Purple Notes
must be identified by the photographer as
to its production and testified as to the
circumstances under which they were
produced. The value of this kind of evidence
lies in its being a correct representation or
reproduction of the original, and its
admissibility is determined by its accuracy in
portraying the scene at the time of the
crime. The photographer, however, is not
the only witness who can identify the
pictures he has taken. The correctness of
the photograph as a faithful representation
of the object portrayed can be proved prima
facie, either by the testimony of the person
who made it or by other competent
witnesses, after which the court can admit it
subject to impeachment as to its accuracy.
Photographs, therefore, can be identified by
the photographer or by any other
competent witness who can testify to its
exactness and accuracy (Sison vs. People of
the Philippines, G.R. Nos. 108280-83 November
16, 1995).
Ephemeral Electronic Communication
Refers to telephone conversations, text
messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained [Rule 2, Sec 1(k)].
It shall be proven by: (PPO)
a) The testimony of a person who was a Party
to the same;
b) The testimony of a person who has Personal
knowledge thereof; or
c) In the absence or unavailability of such
witnesses, Other competent evidence may
be admitted (Rule 11, Sec. 2).
 Text messages have been classified as
ephemeral electronic communication under
Section 1(k), Rule 2 of the Rules on
Electronic Evidence, and shall be proven by
the testimony of a person who was a party
to the same or has personal knowledge
thereof (Vidallon-Magtolis vs. Salud, A.M. No. CA-
05-20-P, September 09, 2005).
Remedial Law
8.D.5. PAROL EVIDENCE RULE
ParolEvidenceisany evidence aliunde, whether
oral or written, which is intended or tends to
vary or contradict a complete and enforceable
agreement embodied in a
document(ANNOTATION: Equitable Mortgage, 339
SCRA 111, August 25, 2000).
The Parol Evidence Ruleforbidsany addition to
or contradiction of the terms of a written
instrument by testimony purporting to show
that, at or before the signing of the document,
other or different terms were orally agreed upon
by the parties.
It is based upon the consideration that when the
parties have reduced their agreement on a part
matter into writing, all their previous and
contemporaneous agreements on the matter are
merged therein(ANNOTATION: Essentials of Parol
Evidence, 108 SCRA 64, September 30, 1981).
 The reason for the rule is the presumption
that when the parties have reduced their
agreement to writing they have made such
writing the only repository and memorial of
the truth, and whatever is not found in the
writing must be understood to have been
waived or abandoned (Cruz vs. Court of
Appeals, G.R. No. 79962, December 10, 1990).
Purpose of the Parol Evidence Rule:
1) To give stability to written agreement;
2) To remove the temptation and possibility of
perjury, which would be afforded if parol
evidence was admissible; and
3) The prevent possible fraud (Herrera).
8.D.5.aApplication of the Parol Evidence
Rule
It becomes operative when the issues in the
litigation are the terms of a written agreement.
General Rule:
When the terms of an agreement have been
reduced to writing, it is considered as containing
all the terms agreed upon and there can be, as
Bar Operations C ommissions 511
 Purple Notes
Remedial Law
between the parties and their successors in
interest, NO evidence of such terms other than
the contents of the written agreement.
 The ParolEvidenceRule forbids any addition
to the terms of a written instrument by
testimony purporting to show that, at or
before the signing of the document, other or
different terms were orally agreed upon by
the parties (Ortañez vs. Court of Appeals, G.R.
No. 107372, January 23, 1997).
Exceptions:
A party may present evidence to modify, explain
or add to the terms of the written agreement if
he or she puts in issue in a verified pleading:
(FIVE)
1. An Intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. Failure of the written agreement to express
the true intent and agreement of the
parties;
3. Validity of the written agreement; or
4. The Existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written
agreement.
Note: The term ―agreement‖ includes wills.
 The Parol Evidence Rule does not apply
when third parties or those not privy to the
written instrument are involved and does
not base a claim or assert a right originating
in the instrument (Lechugas vs. CA, G.R. No. L-
39972 & L-40300, August 6, 1986).
 The Parol Evidence Rule is predicated on the
existence of a document embodying the
terms of an agreement.Areceiptdoes not
contain such an agreement. It is only a
receipt attesting to the fact that on May 4,
1982, the petitioner received from the
private respondent the amount of P35,000.
At most, the receipt can only be considered
a casual memorandum of a transaction
between the parties and an
acknowledgment of the receipt of money
executed by the petitioner for the private
respondent's satisfaction. A writing of this
512 Center for Legal Education and Research
nature, as Wigmore observed, is not
covered by the ParolEvidenceRule(Cruz vs.
Court of Appeals, G.R. No. 79962, December 10,
1990).
Requisites for the Applicability of Parol
Evidence Rule (PWV3)
1. There must be a Valid contract;
2. The terms of the agreement must be
reduced into Writing;
3. Evidence aliundeVary the terms of the
written contract;
4. The dispute is between the Parties to the
written instrument; and
5. Grounds for the applicability must be put in
issue in the Verified pleading.
 The parol evidence rule applies only to the
parties to the contract and their successors-
in-interest. Where the proponent of the
parol evidence is a stranger to the deed of
sale, he is not bound by the parol evidence
rule (Lechugas vs. Court of Appeals, G.R. No. L-
39972, August 6, 1986).
Previous acts and contemporaneous transaction
of the parties are deemed integrated and
merged in the written instrument which they
have executed.
General Rule: When the parties have reduced
their agreement to writing, it is presumed that
they have made the writing the only repository
and memorial of the truth, and whatever is not
found in the writing must be understood to have
been waived and abandoned.
Exception: Collateral Oral Agreement A
contract made prior to or contemporaneous with
another agreement and if oral and not
inconsistent with written contract, it is
admissible within the exception to parol
evidence rule.
An agreement is ―collateral‖ if it meets the
following requirements:
1. It is NOT a part of the integrated written
agreement in any way;
 Purple Notes
2. It is not inconsistent with the written
agreement in any way, including both the
express and implied provisions of the written
agreement; and,
3. It is not closely connected with the principal
transaction as to form part and parcel
thereof.
8.D.5.b. When Parol Evidence Can Be
Introduced
Remedial Law
In order that parol evidence may be
admissible to show a mistake in the written
instrument, the concurrence of three things
are necessary:(FCC)
i. The mistake should be of a Fact and not a
mistake of law;
ii. The mistake should be proved by Clear
and convincing evidence; and
iii. The mistake should be Common to both
parties to the instrument

A party may present evidence to modify, explain b. Failure of the written agreement to express
or add to the terms of the written agreement if the true intent and agreement of the parties;
he or she puts in issue in a verified pleading:
(FIVE) Parol evidence is competent and admissible
in support of allegations that an instrument
a. An Intrinsic ambiguity, mistake or in writing, purporting on its face to transfer
imperfection in the written agreement; the title with a mere right to repurchase
under specific conditions reserved to the
Intrinsic or Extrinsic or Intermediate vendor, was in truth and in fact given merely
Latent Patent Ambiguity as a security for the repayment of loan
Ambiguity Ambiguity (Madrigal vs. Court of Appeals, G.R. No. 142944,
When the Ambiguity is where the April 15, 2005). Similarly, parol evidence is
writing, on its patent on the ambiguity admissible to show that an endorsement was
face appears face of the consists in the
made wholly without consideration and, and,
clear and writing itself use of equivocal
unambiguous, and requires words
that in making it, the endorser acted as
BUT there are something to designating the agent for the endorsee and as mere vehicle
collateral be added in person or subject for the transfer of the naked title from the
matters or order to matter, parol maker to the endorsee (Maulini vs. Serrano,
circumstances ascertain the evidence of G.R. No. L-8844, December 16, 1914).
which makes meaning of the collateral or
the meaning words used. extrinsic matter c. Validity of the written agreement; or
uncertain. may be
introduced for
Parol Evidence Rule does not apply where
the purpose of
aiding the court
the purpose of parol evidence is to show that
in arriving at the no written contract ever existed (Maulini vs.
meaning of the Serrano, G.R. No. L-8844, December 16, 1914).
language used.
Curable by Cannot be Curable by The operation of the parol evidence rule
evidence cured by evidence aliunde requires the existence of a valid written
aliunde or evidence or extraneous agreement. It is, thus, not applicable in a
extraneous aliunde evidence as long proceeding where the validity of such
evidence as as such agreement is the fact in dispute, such as
long as such ambiguity is put
when a contract may be void for lack of
ambiguity is put in issue in the
in issue in the proponent‘s consideration(Heirs of Policronio M. Ureta, Sr. vs.
proponent‘s verified pleading. Heirs of Liberato M. Ureta, G.R. No. 165748,
verified September 14, 2011).
pleading. Inducement by fraud may be proved by
(RIANO, Evidence (The Bar Lecture Series), 2016 Ed., parol because it goes into the validity of the
p. 160-161) agreement (Woodhouse vs. Halili, 93 Phil. 526).

Bar Operations C ommissions 513

 Purple Notes
Remedial Law
d. The Existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written agreement.
Parol evidence may be received to determine
whether the written agreement contains any
reference to the collateral agreement and
whether the action is at law or in equity even
if it deals with related matters (Robles vs.
Lizarraga, GR No. L-16736, December 22, 1921).
Rule on Conditional Agreements
1. Conditions Precedent – may be
established by parol evidence because there
is no varying of the terms of the written
contract by extrinsic agreement for the
reason that there is no contract in
existence; there is nothing upon which to
apply the excluding rule.
2. Conditions Subsequent – may NOT be
established by parolevidence(Herrera).
Rule on Subsequent Agreements
The rule forbidding the admission of parol
evidence to alter or contradict a written
instrument does NOT apply so as to prohibit the
establishment by parol evidence of an
agreement between the parties in writing,
entered into subsequent to the time when the
written instrument was executed,
notwithstanding that such agreement may have
the effect of changing the contract of the parties
as evidenced by the writing; for parol evidence
merely goes to show that the parties have
exercised their right to change the same, or to
make a new and independent contract, provided
such contract is not invalid under the statute of
frauds or otherwise.
Express Trusts on Immovables cannot be
proved by parolevidence(Art. 1443, NCC).
 An implied trust is neither dependent upon
an express agreement nor required to be
evidenced by writing. Article 1457 of our
Civil Code authorizes the admission of parol
evidence to prove their existence. Parol
evidence that is required to establish the
existence of an implied trust necessarily has
514 Center for Legal Education and Research
to be trustworthy and it cannot rest on
loose, equivocal or indefinite declarations
(Tong vs. TiatKun, G.R. No. 196023, April 21,
2014).
Statute of Frauds
If the following agreements are NOT in writing
and subscribed, it is unenforceable and evidence
thereof is inadmissible:
1. Special promise to answer for the debt,
default, or miscarriage of another;
2. Obligations not to be performed within a
year from the making thereof;
3. Agreement made in consideration of
marriage, other than a mutual promise to
marry;
4. Agreement for the sale of goods, chattels or
things in action, at a price not less than
P500, unless the buyer accept and receive
part of such goods and chattels, or the
evidences, or some of them, of such things
in action or pay at the time some part of the
purchase money;
5. Lease for more than 1 year, or sale of real
property or of an interest therein;
6. Representation as to the credit of a third
person(Art. 1403, NCC).
Exceptions to the Statute of Frauds:
a) Failure to object to the presentation of oral
evidence; or
b) Acceptance of benefit under the agreement.
 Parol Evidence is inadmissible to incorporate
additional contemporaneous conditions
which are not mentioned at all in the
writing, unless there is fraud or mistake (Yu
Tek & Co. vs. Gonzales, 29 Phil. 384).
Waiver of the Parole Evidence Rule
The parol evidence rule can be waived by failure
to invoke the benefits of the rule. This waiver
may be made by failure to object to the
introduction of evidence aliunde. Inadmissible
evidence may be rendered admissible by failure
to object. Failure to object to the parol evidence
presented by the adverse party operates as a
 Purple Notes
Remedial Law
waiver of the protection of the parol evidence
rule (Riano, 2016, citing Santiago vs. CA, GR No.
103959, August 21, 1997).
(Riano, Evidence (The Bar Lecture Series), 2016 Ed.,
Probative Value p. 165)

Even if patrol evidence is admitted, such Principle of ―falsademonstratio non nocet

admission would not mean that the court would cum de corporeconstat"
give probative value to the parol evidence.
Admissibility is not equivalent of probative value False description does NOT injure or vitiate a
or credibility (RIANO, Evidence (The Bar Lecture document, provided that the thing or person
Series), 2016 Ed., p. 164). intended has once been sufficiently described.
8.D.5.c. Distinguish: Original Document 8.D.6. AUTHENTICATION AND PROOF OF
Rule and Parol Evidence Rule DOCUMENTS
PAROL EVIDENCE RULE vs. 8.D.6.a. Meaning of Authentication
ORIGINAL DOCUMENT (BEST) EVIDENCE
RULE Authentication is the process of proving the due
execution and genuineness of the document. It
PAROL EVIDENCE ORIGINAL DOCUMENT
refers to a rule of evidence which requires that
RULE RULE
evidence must be sufficient to support a finding
As to availability of the original
Presupposes that the Contemplates a situation
that the matter in question is what its proponent
original is available in when the original is not claims.
court. available in court and/or
there is a dispute as to Private documents, as a rule, must be
whether said writing is the authenticated before they may be received in
original. evidence (Rule 132, Sec. 20). Public documents,
however, may be received in evidence without
As to what is prohibited by the rule the need for authentication (Riguera). Public
Prohibits the varying Prohibits the introduction documents enjoythe presumption of regularity
of the terms of a of substitutionary evidence and is a prima facieevidence of the facts
written agreement. in lieu of the original
statedtherein – which may only be overcome by
document regardless of
whether or not it varies evidence that is clear,convincing and more than
the contents of the original merely preponderant(Heirs of Spouses Angel
Liwagon and Francisca Dumalagan vs. Heirs of
Spouses Liwagon, G.R. No. 193117, November 26,
As to who may invoke the rule
2014).
Can be invoked only Can be invoked by any
when the controversy party to an action
is between the parties regardless of whether When Authentication NOT Required:
to the written such party participated or
agreement, their not in the writing involved. a.) The writing is an ancient document;
privies, or any party b.) The writing is a public document or record;
directly affected c.) The writing is a notarial document, except
thereby. last wills and testaments;
d.) The authenticity and due execution of the
As to documents to which it may be
document has been expressly admitted or
applicable
impliedly admitted by failure to deny the
With the exception of Applies to all kinds of
wills, applies only to writing. same under oath; or
documents which are
contractual in nature.

Bar Operations C ommissions 515

 Purple Notes
Remedial Law
e.) When such genuineness and due execution
are immaterial to the issue(RIANO, Evidence
(The Bar Lecture Series), 2016 Ed., p. 169-170).
8.D.6.b. Classes of Documents
For the purpose of their presentation in
evidence, documents are either public or
private.
Public documentsare:
1. The written official acts, or records of the
sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
2. Documents acknowledged before a notary
public, except last wills and testaments;
3. Documents that are considered public
documents under treaties and conventions
which are in force between the Philippines
and the country of source; and
4. Public records, kept in the Philippines, of
private documents required by law to be
entered therein.
All other writings are private(Rule 132, Sec. 19, as
amended).
A private documentis a document other than
a public document (Riguera).
 The act of notarization by a notary public
converts a private document into a public
document, making it admissible in evidence
without further proof of its authenticity. By
law, a notarial document is entitled to full
faith and credit upon its face. It enjoys the
presumption of regularity and is a prima
facieevidence of the facts statedtherein –
which may only be overcome by evidence
that is clear,convincing and more than
merely preponderant. Without such
evidence, the presumption must be
upheld(Heirs of Spouses Angel Liwagon and
Francisca Dumalagan vs. Heirs of Spouses
Liwagon, G.R. No. 193117, November 26,
2014).
8.D.6.c. When a Private Writing Requires
Authentication
516 Center for Legal Education and Research
Before any private document offered as
authentic is received in evidence, its due
execution and authenticity must be proved by
any of the following means: (AGO)
a. By Anyone who saw the document executed
or written
b. By evidence of the Genuineness of the
signature or handwriting of the maker; or
c. By Other evidence showing its due execution
and authenticity. (n)
Any other private document need only be
identified as that which it is claimed to be (Rule
132, Sec. 20, as amended).
8.D.6.d. When Evidence of Authenticity of
a Private Writing is NOT Required
a) Where a private document is more than
thirty (30) years old, is produced from a
custody in which it would naturally be found
if genuine, and is unblemished by any
alterations or circumstances of suspicion, no
other evidence of its authenticity need be
given (Rule 132, Sec. 21).
Note: This provision is commonly referred to
as the ―Ancient Document Rule‖.
Requisites:
i. The private document is more than thirty
(30) years old;
ii. It is produced from a custody in which it
would naturally be found if genuine; and
iii. It is unblemished by any alterations or
circumstances of suspicion.
b) The authenticity and due execution of the
document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
c) When such genuineness and due execution
are immaterial to the issue.
8.D.6.e. Genuineness of Handwriting
The handwriting of a person may be proved by:
 Purple Notes
a) The person whose signature is disputed;
Note: Section 22 of Rule 132 accommodates
the testimony of the very person whose
signature is disputed as a means to establish
the genuineness of handwriting. After all, the
owner of such disputed signature may fall
within the category of ―any witness who
believes it to be the handwriting of such
person because he has seen the person
write' and has thus acquired knowledge of
the handwriting of such person (Dela Rama vs.
Papa, G.R. No. 142309, January 30, 2009).
b) Any witness has seen the person write; or
c) A comparison, made by the witness or the
court, with writings admitted or treated as
genuine by the party against whom the
evidence is offered, or proved to be genuine
to the satisfaction of the judge (Rule 132, Sec.
22).
Note: The opinions of handwriting experts,
even those from the NBI and the PC, are not
binding upon courts. Handwriting experts are
usually helpful in the examination of forged
documents because of the technical procedure
involved in analyzing them. But resort to these
experts is not mandatory or indispensable to the
examination or the comparison of handwriting.
A finding of forgery does not depend entirely on
the testimonies of handwriting experts, because
the judge must conduct an independent
examination of the questioned signature in order
to arrive at a reasonable conclusion as to its
authenticity (Multi-International Business Data
System, Inc. vs. Martinez, G.R. No. 175378,
November 11, 2015).
8.D.6.f. Public Documents as Evidence;
Proof of Official Record
Documents consisting of entries in public
records made in the performance of a duty by a
public officer are prima facieevidence of the
facts therein stated. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of
the date of the latter(Rule 130, Sec. 23).
Remedial Law
Proof of Official Record
1. Public documents referred to in Sec.
19(a), Rule 132
a) Domestic records:
1. By an official publication thereof; or
2. By a copy attested by the officer
havingthe legal custody of the
record, or by his or her deputy (Rule
132, Sec. 24, paragraph 1).
b) Foreign recordskept in a foreign country
which is a contracting party to a treaty or
convention to which the Philippines is also
a party:
1. By an official publication thereof; or
2. By a copy attested by the officer
having the legal custody of the
record, or by his or her deputy, and
accompaniedwith a certificate that
such officer has the custody (Rule
132, Sec. 24, paragraph 1).
Note: The certificate or its equivalent
shall be in the form prescribed by such
treaty or convention subject to reciprocity
granted to public documents originating
from the Philippines(Rule 132, Sec. 24,
paragraph 2);(n)
c) Foreign records originating from aforeign
country which is nota contracting party to
a treaty or convention referred to in the
next preceding section
1. By an official publication thereof; or
2. By a copy attested by the officer
having the legal custody of the
record, or by his or her deputy, and
accompanied with a certificate that
such officer has the custody (Rule
132, Sec. 24, paragraph 1).
Note: The certificate may be made by a
secretary of the embassy or legation, consul
general, consul, vice-consul, or consular
agent or by any officer in the foreign service
of the Philippines stationed in the foreign
country in which the record is kept, and
Bar Operations C ommissions 517
 Purple Notes
Remedial Law
authenticated by the seal of his or her
office(Rule 132, Sec. 24, paragraph 3).
2. Public documents referred to in Sec.
19(c), Rule 132
By a certificate or its equivalent which shall
be in the form prescribed by such treaty or
convention subject to reciprocity granted to
public documents originating from the
Philippines (Rule 132, Sec. 24, paragraph 2).(n)
A document that is accompanied by a certificate
or its equivalent may be presented in evidence
without further proof, the certificate or its
equivalent being prima facie evidence of the due
execution and genuineness of the document
involved.
The certificate shall not be required when a
treaty or convention between a foreign country
and the Philippines has abolished the
requirement, or has exempted the document
itself from this formality (Rule 132, Sec. 24,
paragraph 4). (n)
Hague Convention Abolishing the
Requirement of Legalization for Foreign
Public Documents
On May 14, 2019, the Philippines‘ accession to
the Hague Convention Abolishing the
Requirement of Legalization for Foreign Public
Documents (the ―Apostille Convention‖) took
effect. The Apostille Convention was created to
abolish the requirement for diplomatic or
consular legalization of foreign public
documents.
Each Contracting State shall exempt from
legalisation documents to which the present
Conventionapplies and which have to be
produced in its territory.
For the purposes of the present
Convention,legalisation means only the
formality by which the diplomatic or consular
agents of the country in whichthe document has
to be produced certify the: (ACId)
Authenticity of the signature;
518 Center for Legal Education and Research
Capacity in which the person signing the
document has acted; and
Where appropriate, the Identity of the seal or
stamp which it bears(Apostille Convention, Art, 3).
The present Convention shall apply to public
documents which have been executed in the
territory of one Contracting State and which
have to be produced in the territory of another
Contracting State(Apostille Convention, Art, 2).
For the purposes of the present Convention, the
following are deemed to be public
documents:(DANO)
1. Documents emanating from an authority or
an official connected with the courts or
tribunals of the State, including those
emanating from a public prosecutor, a clerk
of a court or a process-server (―huissier de
justice‖);
2. Administrative documents;
3. Notarial acts; and
4. Official certificates which are placed on
documents signed by persons in their private
capacity, such as official certificates
recording the registration of a document or
the fact that it was in existence on a certain
date and official and notarial authentications
of signatures.
However, the present Convention shall not apply
to:
1. Documents executed by diplomatic or
consular agents; or
2. Administrative documents dealing directly
with commercial or customs
operations(Apostille Convention, Art, 1).
Formality Required to Certify Authenticity
General Rule: The only formality that may be
required is the addition of the certificate
issued by the competent authority of the State
from which the document emanates(Apostille
Convention, Art, 3).
The certificate shall be:
 Purple Notes
1. Placed on the document itself or on an
―allonge‖;
2. In the form of the model annexed to the
present Convention.
The certificate may, however, be drawn up in
the official language of the authority which
issues it. The standard termsappearing therein
may be in a second language also. The title
―Apostille (Convention de La Haye du 5 octobre
1961)‖ shall be in the French language(Apostille
Convention, Art, 4).
Exception: When either the laws,regulations,
or practice in force in the State where the
document is produced or an agreement
betweentwo or more Contracting States have
abolished or simplified it, or exempt the
document itself from legalization (Apostille
Convention, Art, 3).
8.D.6.g. Attestation of a Copy
Whenever a copy of a document or record is
attested for the purpose of evidence:
1. The attestation must state that the copy is a
correct copy of the original, or a specific part
thereof, as the case may be; and
2. The attestation must be under the official seal
of the attesting officer, if there be any, or if
he or she be the clerk of a court having a
seal, under the seal of such court (Rule 132,
Sec. 25).
8.D.6.h. Public Record of a Public
Document
Any public record, an official copy of which is
admissible in evidence, must not be removed
from the office in which it is kept, except upon
order of a court where the inspection of the
record is essential to the just determination of a
pending case (Rule 132, Sec. 26).
Doctrine of Irremovability of Public Record
General Rule: Any public record, an official
copy of which is admissible in evidence, must
not be removed from the office in which it is
kept.
Remedial Law
Exception: Upon order of a court, where
inspection of the record is exercised to the just
determination of a pending case.
 Anent the best evidence rule, Section 3(d)
of Rule 130 of the Rules of Court provides
that when the subject of inquiry is the
contents of a document, no evidence shall
be admissible other than the original
document itself, except when the original is
a public record in the custody of a public
officer or is recorded in a public office.
Section 7 of the same Rule provides that
when 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 public
officer in custody thereof. [Rule 132,
Section 24, as amended] provides that the
record of public documents may be
evidenced by a copy attested by the officer
having the legal custody or the record
(Dimaguila vs. Monteiro, G.R. No. 201011,
January 27, 2014).
8.D.6.i. Proof of Lack of Record
The absence of an official record is proven by a
written statement signed by an officer having
the custody of an official record or by his or her
deputy. The written should state that:
1.There has been a diligent search for the
record; and
2.Despite diligent search, no record or entry of a
specified tenor is found to exist in the
records of his or her office (Rule 132, Sec. 28).
8.D.6.j. How a Judicial Record is
Impeached
Any judicial record may be impeached by
evidence of:
a)Want of jurisdiction in the court or judicial
officer;
b)Collusion between the parties; or
c) Fraud in the party offering the record, in
respect to the proceedings (Rule 132, Sec. 29).
8.D.6.k. Proof of Notarial Documents
Bar Operations C ommissions 519
 Purple Notes
Remedial Law
Every instrument duly acknowledged or proved d.) The alteration did Not change the meaning
and certified as provided by law, may be or language of the instrument.
presented in evidence without further proof, the
certificate of acknowledgment being prima facie
If he or she fails to do that, the document shall
evidence of the execution of the instrument or
not be admissible in evidence (Rule 132, Sec. 31).
document involved (Rule 132, Sec. 30).
8.D.6.m. Documentary Evidence in an
Note:Not all types of public documents are
Unofficial Language
deemed prima facie evidence of the facts
therein stated. ―Public records made in the
General Rule:Documents written in an
performance of a duty by a public officer‖
unofficial language shall not be admitted as
include those specified as public documents
evidence
under Section 19(a), Rule 132 of the Rules of
Court and the acknowledgement, affirmation or
Exception: When accompanied with a
oath, or jurat portion of public documents under
translation into English or Filipino.
Section 19(d). Hence, under Section 23,
notarized documents are merely proof of the
Note: To avoid interruption of proceedings,
fact which gave rise to their execution, and of
parties or their attorneys are directed to have
the date of the latter, but is not prima facie
such translation prepared before trial (Rule 132,
evidence of the facts therein stated.
Sec. 33).
Additionally, under Section 30 of the same Rule,
the acknowledgement in notarized documents is
8.E. TESTIMONIAL EVIDENCE
prima facie evidence of the execution of the
instrument or document involved(Republic vs.
Testimonial evidenceconsists of the narration
Gimenez, G.R. No. 174673, January 11, 2016).
or deposition by one who has observed or has
personal knowledge of that to which he is
Seal refers to a device for affixing a mark,
testifying. Thus, the narration of events given
image or impression on all papers officially
orally in court by a witness is a testimonial
signed by the notary public(A.M. No. 02-8-13-SC,
evidence of the event in question (ANNOTATION:
Sec. 13).
Fundamental Concepts in the Handling of Evidence,
238 SCRA 626, December 05, 1994).
There shall be no difference between sealed and
unsealed private documents insofar as their 8.E.1. QUALIFICATION OF WITNESSES
admissibility as evidence is concerned(Rule 132,
Sec. 32).
Witness is a person who testifies in a case or
gives evidence before a judicial tribunal.
8.D.6.l. Alterations in a Document
The party producing a document as genuine Qualification of Witnesses
which has been altered and appears to have
been altered after its execution, in a part General Rule: All persons who can perceive,
material to the question in dispute, must and perceiving, can make known their
account for the alteration. perception to others, may be witnesses.
He or she may show that: (WINC) Exception: Unless the law or the Rules render
a person disqualified from being a witness.
a.) The alteration was made by another,
Without his or her concurrence; An intellectually disabled person is not, solely by
b.) It was made with the Consent of the parties this reason, ineligible from testifying in court.
affected by it; "He or she can be a witness, depending on his
c.) It was otherwise properly or Innocently or her ability to relate what he or she knows." If
made; or an intellectually disabled victim's testimony is

520 Center for Legal Education and Research

 Purple Notes
Remedial Law
coherent, it is admissible in court(People vs. father (People of the Philippines vs. Ibañez, G.R.
Corpuz, G.R. No. 226679, August 15, 2017 – J. No. 197813, September 25, 2013).
Leonen penned case).
Competency vs. Credibility of a Witness
Note:Religious or political belief, interest in the
outcome of the case, or conviction of a crime Competency of a Credibility of the
unless otherwise provided by law, shall not be Witness Witness
ground for disqualification(Rule 130, Sec. 21, as It refers to the basic It refers to the
amended). qualification of a witness believability of the
as his capacity to witness and has nothing
perceive and to to do with the law or the
The following persons cannot be witnesses: (not
communicate the same rules. It refers to the
exclusive) to others. weight and the
trustworthiness or
3. Spouses under the marital disqualification It also includes the reliability of the
rule (Rule 130, Sec. 23, as amended); absence of any of the testimony.
4. Those who are disqualified by reason of qualifications imposed
privileged communication (Rule 130, Sec. 24, upon a witness.
as amended);
5. Those who are disqualified from being 8.E.2. DISQUALIFICATION OF WITNESSES
discharged to be state witness (Rule 119, Sec.
17); and Persons Disqualified to be A Witness:
6. Those who are disqualified from being
witnesses to a will (Art., 821, NCC). 1. Persons disqualified by reason of marriage or
the ―Marital Disqualification Rule‖(Rule 130,
When Determined
Sec. 23, as amended); and
2. Persons disqualified on ground of privileged
Qualification of a witness is determined at the
communication (Rule 130, Sec. 24, as
time the said witness is produced for amended);
examination or at the taking of his deposition.
Notable Changes Brought About by the
 With exceptions provided in the Rules of 2019 Amendments:
Court, all persons who can perceive, and
perceiving, can make known their 4. Disqualification by reason of mental
perception to others, may be witnesses. incapacity or immaturity (formerly Rule 130,
That is even buttressed by the Rule on Sec. 21)has been deleted; and
Examination of a Child Witness which 5. Disqualification by reason of death or
specifies that every child is presumed insanity of adverse party or the ―Dead Man‘s
qualified to be a witness. To rebut this Statute (formerly Rule 130, Sec. 23) has been
presumption, the burden of proof lies on the modified. The party or assignor of a party or
party challenging the child's competence. a person in whose behalf a case is
Only when substantial doubt exists prosecuted can testify subject to Hearsay
regarding the ability of the child to perceive, Rule;
remember, communicate, distinguish truth
from falsehood, or appreciate the duty to (See: 8.E.5.ii Hearsay Rule: Statement of
tell the truth in court will the court, motu decedent or person of unsound mind.)
proprio or on motion of a party, conduct a
competency examination of a child. Thus, Absolute Relative
petitioners‘ flimsy objections on Rachel‘s Disqualification Disqualification
Objections based on Objections based on
lack of education and inability to read and
absolute relative disqualifications
tell time carry no weight and cannot
disqualifications may be may be raised when it
overcome the clear and convincing raised upon the calling becomes apparent that
testimony of Rachel as to who killed her of the disqualified the subject matter of the

Bar Operations C ommissions 521

 Purple Notes
Remedial Law
witness. testimony covers
inadmissible matters.
 The specific enumeration of disqualified
witnesses excludes the operation of causes
of disability other than those mentioned in
the Rules. It is a maxim of recognized utility
and merit in the construction of statutes
that an express exception, exemption, or
saving clause excludes other exceptions. As
a general rule, where there are express
exceptions, these comprise the only
limitations on the operation of a statute and
no other exception will be implied. The
Rules should not be interpreted to include
an exception not embodied therein (Marcos
vs. Heirs of Navarro, G.R. No. 198240, July 3,
2013).
ABSOLUTE disqualifications:
1. Cannot perceive (Rule 130, Sec. 20);
2. Cannot make known their perception to
others (Rule 130, Sec. 20);
3. Those disqualified by reason of insanity or
immaturity;
4. Marital disqualification (Rule 130. Sec. 22);and
5. Parental and filial privilege (Rule 130, Sec. 25).
RELATIVE disqualifications:
1. Dead man‘s statute (Rule 130, Sec. 39, as
amended);
2. Marital communication privilege [Rule 130,
Sec. 24(a)];
3. Attorney-client privilege [Rule 130, Sec. 24(b),
as amended];
4. Physician/Psychotherapist -Patient Privilege
[Rule 130, Sec. 24(c), as amended];
5. Minister/Priest-Penitent Privilege[Rule 130,
Sec. 24(d)]; and
6. State Secrets [Rule 130, Sec. 24(e)].
NOT grounds for disqualification:
a) Religious belief;
b) Political belief;
c) Interest in the outcome of the case; or
d) Conviction of a crime, unless otherwise
provided by law.
522 Center for Legal Education and Research
General Rule: A person convicted of a crime is
NOT disqualified to be a witness (Rule 130, Sec.
21, as amended).
Exception: When otherwise provided by law.
1. Under Art. 821 of the Civil Code, a person
convicted of any of the following crimes
cannot be a witness to a will:
a) Falsification of documents;
b) Perjury; or
c) False testimony
2. A state witness must not have been
convicted of any crime involving moral
turpitude [Rule 119, Sec. 17 (e)].
When to Raise Objection to Competency
Objection to the offer of evidencemust be orally
immediately after the offer is made(Rule 132,
Sec. 36, as amended).
 The acceptance of an incompetent witness
to testify in a civil suit, as well as the
allowance of improper questions that may
be put to him while on the stand is a matter
resting in the discretion of the litigant. He
may assert his right by timely objection or
he may waive it, expressly or by silence. In
any case the option rests with him. Once
admitted, the testimony is in the case for
what it is worth and the judge has no power
to disregard it for the sole reason that it
could have been excluded, if it had been
objected to, nor to strike it out on its own
motion (Razon vs. Intermediate Appellate Court,
G.R. No. 74306, March 16, 1992 quoting Cruz vs.
Court of Appeals, GR No. 79962, December 10,
1990).
Test of Competency
Whether the individual has sufficient
understanding to appreciate the nature and
obligation of an oath, and sufficient capacity to
observe and describe the facts in regard to
which he is called to testify.
 Purple Notes
Voir dire Examination is a preliminary
examination conducted by the trial judge where
the witness is duly sworn to answer as to his
competency. This is conducted by asking leading
questions.
There is no provision of the Rules disqualifying
parties declared in default from taking the
witness stand for non-disqualified parties
(Marcos vs. Heirs of Navarro, G.R. No. 198240, July
3, 2013).
8.E.2.a. Disqualification By Reason of
Marriage
During their marriage, the husband or the wife
cannot testify against the other without the
consent of the affected spouse, except in a civil
case by one against the other, or in a criminal
case for a crime committed by one against the
other or the latter's direct descendants or
ascendants(Rule 130, Sec. 23, as amended).
Note: The spouse-witness can now testify in
favor of the spouse-litigant even without the
latter‘s consent.
Rationale:
1. There is identity of interests between
husband and wife;
2. If one were to testify for or against the
other, there is consequent danger of perjury;
3. The policy of the law is to guard the security
and confidences of private life, even at the risk of an
occasional failure of justice, and to prevent
domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility
there is danger of punishing one spouse
through the hostile testimony of theother(Alvarez vs.
Ramirez, G.R. No. 143439, October 14, 2005).
General Rule: During their marriage, the
husband or the wife cannot testify against the
other without the consent of the affected
spouse.
Exceptions:
1. In a civil case by one against the other;
Remedial Law
2. In a criminal case for a crime committed by
one against the other or the latter's direct
descendants or ascendants;
3. Where the testimony was made outside the
marriage;
4. Where the spouse-litigant gives consents to
the testimony;
5. Where the spouse-litigant fails to timely
object to the admission of the testimony of
the spouse-witness; or
6. Where the marital and domestic relations are
so strained that there is no more harmony to
be preserved nor peace and tranquility of
interests disappears and the consequent
danger of perjury based on that identity is
non-existent (People vs. Francisco, G.R. No. L-
568, July 16, 1947);
Requisites: (MPCE)
1. The spouses are legally Married;
2. The spouse against whom the testimony is
offered is a Party-litigant;
3. The spouse-litigant does not Consent to the
testimony; and
4.The case is not one of the Exceptions provided
in the rule.
Duration
The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
Scope of the Rule
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute prohibition
against the spouse‘s testifying to any facts
affecting the other however these facts may
have been acquired.
 The law insures absolute freedom of
communication between the spouses by
making it privileged. Neither husband nor
wife may testify for or against the other
without the consent of the affected spouse
while the marriage subsists. Neither may be
examined without the consent of the other
as to any communication received in
confidence by one from the other during the
marriage, save for specified exceptions. But
Bar Operations C ommissions 523
 Purple Notes
Remedial Law
one thing is freedom of communication;
quite another is a compulsion for each one
to share what one knows with the other.
And this has nothing to do with the duty of
fidelity that each owes to the other (Zulueta
vs. Court of Appeals, G.R. No. 107383, February
20, 1996).
 But like all other general rules, the marital
disqualification rule has its own exceptions,
both in civil actions between the spouses
and in criminal cases for offenses committed
by one against the other. Like the rule itself,
the exceptions are backed by sound reasons
which, in the excepted cases, outweigh
those in support of the general rule. For
instance, where the marital and domestic
relations are so strained that there is no
more harmony to be preserved nor peace
and tranquility which may be disturbed, the
reason based upon such harmony and
tranquility fails. In such a case, identity of
interests disappears and the consequent
danger of perjury based on that identity is
non-existent. Likewise, in such a situation,
the security and confidences of private life,
which the law aims at protecting, will be
nothing but ideals, which through their
absence, merely leave a void in the unhappy
home (Alvarez vs. Ramirez, G.R. No. 143439,
October 14, 2005).
 The rule that the injury must amount to a
physical wrong upon the person is too
narrow; and the rule that any offense
remotely or indirectly affecting domestic
harmony comes within the exception is too
broad. The better rule is that, when an
offense directly attacks, or directly and
vitally impairs, the conjugal relation, it
comes within the exception to the statute
that one shall not be a witness against the
other except in a criminal prosecution for a
crime committee (by) one against the other
(People of the Philippines vs. Castañeda, Jr., G.R.
No.L-46306, February 27, 1979 quoting Ordoño
vs. Daquigan, G.R. No. L-39012,62 SCRA 270,
January 31, 1975 quoting Cargill vs. State, 35
ALR, 133, 220, Pac 64, 26 OkL 314).
 It should be stressed that as shown by the
records, prior to the commission of the
offense, the relationship between petitioner
524 Center for Legal Education and Research
and his wife was already strained. In fact,
they were separated de facto almost six
months before the incident. Indeed, the
evidence and facts presented reveal that the
preservation of the marriage between
petitioner and Esperanza is no longer an
interest the State aims to protect (Alvarez vs.
Ramirez, G.R. No. 143439, October 14, 2005).
Example of offenses which impair conjugal
relation:
1. Falsification of public document forging wife‘s
signature;
 The act complained of as constituting the
crime of Falsification of Public Document is
the forgery by the accused of his wife's
signature in a deed of sale, thereby making
it appear therein that said wife consented to
the sale of a house and lot belonging to
their conjugal partnership when in fact and
in truth she did not. It must be noted that
had the sale of the said house and lot, and
the signing of the wife's name by her
husband in the deed of sale, been made
with the consent of the wife, no crime could
have been charged against said husband.
Clearly, therefore, it is the husband's breach
of his wife's confidence which gave rise to
the offense charged. And it is this same
breach of trust which prompted the wife to
make the necessary complaint with the
Office of the Provincial Fiscal which,
accordingly, filed the aforesaid criminal case
with the Court of First Instance of
Pampanga. To rule, therefore, that such
criminal case is not one for a crime
committed by one spouse against the other
is to advance a conclusion which completely
disregards the factual antecedents of the
instant case (People of the Philippines vs.
Castañeda, Jr., G.R. No. L-46306, February 27,
1979).
2. Rape of their common daughter;
 Applying the foregoing criterion in said case
of Ordoño vs. Daquiganthis Court held that
the rape committed by the husband of the
witness-wife against their daughter was a
 Purple Notes
crime committed by the husband against his
wife. Although the victim of the crime
committed by the accused in that can was
not his wife but their daughter, this Court,
nevertheless, applied the exception for the
reason that said criminal act "Positively
undermine (d) the connubial relationship
(People of the Philippines vs. Castañeda, Jr., G.R.
No. L-46306, February 27, 1979).
3. Committing arson of the house of the sister
of the wife knowing that the wife was in the
house
 Obviously, the offense of arson attributed to
petitioner, directly impairs the conjugal
relation between him and his wife
Esperanza. His act, as embodied in the
Information for arson filed against him,
eradicates all the major aspects of marital
life such as trust, confidence, respect and
love by which virtues the conjugal
relationship survives and flourishes (Alvarez
vs. Ramirez, G.R. No. 143439, October 14,
2005).
Marrying the Witness
An accused can effectively ―seal the lips‖ of a
witness by marrying the witness. As long as
marriage is in existence at the time of the trial,
the witness-spouse cannot be compelled to
testify even though the marriage was entered
into for the express purpose of suppressing the
testimony.
Who May Object
Only the spouse-party may object on the
testimony and not the spouse who is offered as
a witness.
 A wife who is a co-defendant of her
husband in a case of collusive fraud, where
their interests are not separate, cannot be
examined as a hostile witness by the
adverse party (Lezama vs. Rodriguez, GR No. L-
25643, June 27, 1968).
Remedial Law
Note: Disqualification by reason of death or
insanity of adverse party or the ―Dead Man‘s
Statute‖orthe―Survivorship Rule‖, has been
removed as a ground for disqualification.
(See: 8.E.5.ii Hearsay Rule: Statement of
decedent or person of unsound mind.)
8.E.2.a. Disqualification By Reason of
Privileged Communication; Rule on Third
Parties
Privileged communications:
1. Husband and Wife [Rule 130, Sec 24(a)];
2. Attorney and Client [Rule 130, Sec. 24(b), as
amended];
3. Physician and Patient [Rule 130, Sec.24)(c), as
amended];
4. Minister/Priest and Penitent [Rule 130, Sec.
24(d), as amended]; and
5. Public Officers and Third Person [Rule 130,
Sec. 24(e), as amended].
Note:There are, however, other privileged
matters that are not mentioned by Rule 130.
Among others are the following:
1. Editors may not be compelled to disclose the
source of published news;
2. Voters may not be compelled to disclose for
whom they voted[B.P. No. 881, Sec. 261(z)(5)];
3. Information contained in tax census returns;
and
4. Bank deposits (Air Philippines Corporation vs.
Pennswell, Inc., G.R. No. 172835, December 13,
2007);
5. National security matters and intelligence
information.
i. Marital Privilege, Husband and Wife
The husband or the wife, during or after the
marriage, cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other
during the marriage except in a civil case by one
against the other, or in a criminal case for a
crime committed by one against the other or the
latter's direct descendants or ascendants[Rule
130, Sec. 24(a)].
Bar Operations C ommissions 525
 Purple Notes
Remedial Law
General Rule: There is a presumption of
confidentiality on all communications between
husband and wife.
Exceptions:
(b) In a civil case by one against the other;
(c) In a criminal case for a crime committed by
one against the other or the latter's direct
descendants or ascendants;
(d) When the communication was not intended
to be kept in confidence, like the husband‘s
dying declaration for instance (U.S. vs.
Antipolo, GR No. L-13109, March 6, 1918); or
(e) Where the spouse-litigant gives consents to
the testimony.
Note: The marital privilege rule, being a rule of
evidence, may be waived by failure of the
claimant to object timely to its presentation or
by any conduct that may be construed as
implied consent(Lacurom vs. Jacoba, A.C. No. 5921,
March 10, 2006).
Requisites: (DEV-CoCo)
1. There must be a Valid marriage between
husband and wife;
2. There is communication received in
Confidence by one from the other;
3. The confidential communication was received
During the marriage;
4. The spouse against whom such evidence is
being offered has not given his or her
Consent to such testimony.
5. The case is not one of the Exceptions
provided in the rule[Rule 130, Sec. 24 (a)].
The communication shall remainprivileged, even
in the hands of athird person who may
haveobtained the information,provided that the
original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last paragraph).
The law insures absolute freedom of
communication between the spouses by making
it privileged. Neither husband nor wife may
testify for or against the other without the
consent of the affected spouse while the
526 Center for Legal Education and Research
marriage subsists. Neither may be examined
without the consent of the other as to any
communication received in confidence by one
from the other during the marriage, save for
specified exceptions. But one thing is freedom of
communication; quite another is a compulsion
for each one to share what one knows with the
other. And this has nothing to do with the duty
of fidelity that each owes to the other (Zulueta vs.
Court of Appeals, G.R. No. 107383, February 20,
1996).
Communications overheard by third persons
without knowledge of spouses are still
confidential between the spouses, and neither of
them can testify without the consent of the
other (Francisco, Vicente J., Revised Rules on Court:
Evidence).
Marital Disqualification Rule (Rule 130, Sec.
23, as amended)
 The marital disqualification rule refers to all
matters, whether or not communicated by
one spouse to the other. It applies only
during the existence of the marriage. It can
be invoked only if one spouse is a party to
the action. It is an absolute disqualification
and can be invoked the moment that one
spouse is called to testify.
Marital Privilege Rule, being a rule of
evidence, can be waived for failure of the
claimant to object timely to its presentation
or by any conduct that may be construed as
an implied consent (Lacurom vs. Jacoba, A.C.
No. 5921, March 10, 2006).
 Where the privilege communication from
one spouse to the other comes into the
hands of a 3rd party, without collusion or
voluntary disclosure on the part of either
spouse, it is not privileged; illegality of
seizure must be raised by motion before
trial for return of letter; unanswered letter is
inadmissible (People vs. Carlos, GR No. L-
22948, March 17, 1925).
 Purple Notes
Remedial Law
Spousal Immunity vs. Marital Privilege d) Document attested by the lawyer. As to a
communication relevant to an issue
MARITAL concerning an attested document to which
MARITAL PRIVILEGE
DISQUALIFICATION the lawyer is an attesting witness; or
[Sec. 24(a)]
(Sec. 23) e) Joint clients. As to a communication relevant
Covers all matters Covers only those to a matter of common interest between two
regardless of source communicated by one
or more clients if the communication was
spouse to another
made by any of them to a lawyer retained or
Applies during the Applies during and after
marriage the marriage consulted in common, when offered in an
A spouse must be a A spouse need not be a action between any of the clients, unless
party-litigant party-litigant they have expressly agreed otherwise [Rule
Invoked when a spouse Invoked when the 130, Sec. 24(b), as amended]. (n)
is called to testify testimony appears to
cover privileged matters Requisites: (PEA-CoCo)
Absolute Relative disqualification
disqualification 1. There must be a communication made by the
client to the Attorney or to a person
ii. Attorney-Client Privilege. reasonably believed by the client to be
licensed to engage in the practice of law;
An attorney or person reasonably believed by 2. The communication made by the client to
the client to be licensed to engage in the him/her is to be examined without the
practice of law cannot, without the consent of Consent of the client;
the client, be examined as to any 3. Communication must have been made in
communication made by the client to him or Confidence;
her, or his or her advice given thereon in the 4. The communication must have been given
course of, or with a view to, professional either in the course of or with a view to
employment, nor can an attorney's secretary, Professional employment; and
stenographer, or clerk, or other persons 5. The case is not one of the Exceptions
assisting the attorney be examined without the provided in the rule[Rule 130, Sec. 24(b)].
consent of the client and his or her employer,
concerning any fact the knowledge of which has Note: The privilege extends to the attorney‘s
been acquired in such capacity, except in the secretary, stenographer, or clerk, or other
following cases: persons assisting the attorney concerning any
fact the knowledge of which has been acquired
a)Furtherance of crime or fraud. If the services in such capacity.
or advice of the lawyer were sought or
obtained to enable or aid anyone to commit The phrase ―with a view to‖ includes those
or plan to commit what the client knew or communication made during consultation
reasonably should have known to be a crime preparatory to professional employment.
or fraud;
b) Claimants through same deceased client. As Preliminary communication made for the
to a communication relevant to an issue purpose of creating attorney-client relationship
between parties who claim through the same is within the privilege(RIANO, Evidence (The Bar
deceased client, regardless of whether the Lecture Series), 2016 Ed., p. 209).
claims are by testate or intestate or by inter
vivos transaction; The relationship between the attorney and the
c) Breach of duty by lawyer or client. As to a client is said to exist where a person employs
communication relevant to an issue of breach the professional services of an attorney or seeks
of duty by the lawyer to his or her client, or professional guidance, even though the attorney
by the client to his or her lawyer; declines to handles the case.

Bar Operations C ommissions 527

 Purple Notes
Remedial Law
However, if the communications were not made
for the purpose of creating that relationship,
they will not be covered by the privilege.
 The reason for the prohibition is found in
the relation of attorney and client, which is
one of trust and confidence of the highest
degree. A lawyer becomes familiar with all
the facts connected with his client's case.
He learns from his client the weak points of
the action as well as the strong ones. Such
knowledge must be considered sacred and
guarded with care (Samala vs. Valencia, A.C.
No. 5439, January 22, 2007).
Not Applicable:
a.) When the communication was made in
furtherance of crime or fraud [Rule 130, Sec.
24(b)(i)];
b.) When the communication is relevant to an
issue between parties who claim through
the same deceased client[Rule 130, Sec.
24(b)(ii)];
c.) When the communication is relevant to an
issue ofbreach of duty by lawyer or
client[Rule 130, Sec. 24(b)(iii)];
d.) When the communication is relevant to an
issue concerningdocuments attested by the
lawyer[Rule 130, Sec. 24(b)(iv)];
e.) When the communication is relevant to a
matter of common interest between joint
clients, unless they have expressly agreed
otherwise[Rule 130, Sec. 24(b)(v)];
f.) When the communication is intended to be
made public;
g.) When the communication is intended to be
communicated to others;
h.) When the communication is made in the
presence of 3rd persons; or
i.) When the communication is received from
third persons not acting in behalf of or as
agents of the client.
Note: The lawyer-client privilege extends to the
attorney‘s secretary, stenographer, or clerk.
Hence, in this case, the rule that ―if made in the
presence of 3rd persons, it is not considered
confidential‖ is not applicable.
528 Center for Legal Education and Research
General Rule: A lawyer may invoke the
privilege and refuse to divulge the name or
identify of his client.
Exceptions:
a.) Furtherance of Crime or Fraud
(Future Crime-Fraud Exception)
Condition: The legal services or advice of
the lawyer were sought or obtained to
enable or aid anyone to commit or plan to
commit what the client knew or reasonably
should have known to be a crime of
fraud[Rule 130, Sec. 24(b)(i)].
Rationale: clients are not entitled to use
lawyers tohelp them in pursuing unlawful or
fraudulent objectives. If the privilege were
tocloak such activity, the result would be
loss of public confidence and corruption
ofthe profession [Mueller & Kirkpatrick,
Modern Evidence, Section 5.22 (1995)]
The policy of the privilege is that of
promoting the administration of justice and
itwould be a perversion of the privilege to
extend it to the client who seeks adviceto
aid him in carrying out an illegal fraudulent
scheme. This would be tantamountto
participating in a conspiracy(McCormick on
Evidence, 3rd ed., p. 229 [1984]).
b.) Claimants Through Same Deceased
Client
Condition:The communication is relevant
to an issue between parties who claim
through the same deceased client,
regardless of whether the claims are by
testate or intestate or by inter vivos
transaction[Rule 130, Sec. 24(b)(ii)].
Rationale:While the attorney-client
privilege survives the death of the client,
there is noprivilege in a will contest or
other case between parties who both claim
throughthat very client. This is because his
communications may be essential to
anaccurate resolution of competing claims
of succession, and the testator
wouldpresumably favor disclosure in order
 Purple Notes
to dispose of his estate accordingly[Mueller
& Kirkpatrick, Modern Evidence, Section 5.24
(1995)].
c.) Breach of Duty by Lawyer or Client
(Self-Defense Exception)
Condition: The communication is relevant
to an issue of breach of duty by the lawyer
to his or her client, or by the client to his or
her lawyer[Rule 130, Sec. 24(b)(iii)].
Rationale: If the lawyer and client become
involved in a dispute between
themselvesconcerning the services provided
by the lawyer, the privilege does not apply
totheir dispute. Thus, where a client alleges
a breach of duty on the part of thelawyer,
i.e. professional malpractice, incompetence,
or ethical violations – orwhere the lawyer
sues a client for his fee, either the lawyer
or the client maytestify as to
communications between them.
In theory, the client has impliedly ―waived‖
the privilege by making allegations
ofbreach of duty against lawyer[Mueller &
Kirkpatrick, Modern Evidence, Section 5.23
(1995)].
A lawyer may reveal secrets when
necessary to collect fees or to defend
himself, his associates or employees (Rule
21.01[c], Code of Professional Responsibility).
d.) Document Attested by the Lawyer
Condition:The communication is relevant
to an issue concerning an attested
document to which lawyer is an attesting
witness[Rule 130, Sec. 24(b)(iv)].
Rationale: The privilege does not apply
to ―a communication relevant to an issue
concerningan attested document to which
the lawyer is an attesting witness.‖ This
shouldnot really be an exception because
the privilege never arises, as a lawyer
whoacts as an attesting witness is not
providing professional legal services.
When anattorney serves as an attesting
Remedial Law
witness, he is not acting as a lawyer and
theclient‘s obvious intent is to have him
available to testify to the matter
attested[Mueller & Kirkpatrick, Modern
Evidence, Section 5.25 (1995); Lempert, R.
&Saltzburg, S., A Modern Approach to
Evidence, 3rd ed., pp. 269-370 (1982)].
e.) Joint Clients
Condition:The communication is relevant
to a matter of common interest between
two or more clients if the communication
was made by any of them to a lawyer
retained or consulted in common, when
offered in an action between any of the
clients, unless they have expressly agreed
otherwise[Rule 130, Sec. 24(b)(v)].
Rationale: Joint clients do not intend
theircommunication to be confidential from
each other, and typically
theircommunications are made in each
other‘s presence. xxx Agreeing to
jointrepresentation means that each joint
client accepts the risk that another
jointclient may later use what he or she has
said to the lawyer [Mueller & Kirkpatrick,
Modern Evidence, Section 5.14 (1995)].
 If the unlawful purpose is avowed, as in this
case, the complainant‘s alleged intention to
bribe government officials in relation to his
case, the communication is not covered by
the privilege as the client does not consult
the lawyer professionally. It is not within the
profession of a lawyer to advise a client as
to how he may commit a crime as a lawyer
is not a gun for hire. Thus, the attorney-
client privilege does not attach, there being
no professional employment in the strict
sense (Genato vs. Silapan, Adm. Case. No.
4078, July 14, 2003).
 A lawyer should not, even after the
severance of the relation with his client, do
anything which will injuriously affect his
former client in any matter in which he
previously represented him nor should he
disclose or use any of the client's
confidences acquired in the previous
relation. The reason for the rule is that the
client's confidence once reposed cannot be
Bar Operations C ommissions 529
 Purple Notes
Remedial Law
divested by the expiration of the
professional employment(Samala vs.
Valencia, A.C. No. 5439, January 22, 2007).
The communication shall remainprivileged,
even in the hands of athird person who may
haveobtained the information,provided that
the original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last
paragraph).
iii. Physician/Psychotherapist–Patient
Privilege
A physician, psychotherapist or person
reasonably believed by the patient to be
authorized to practice medicine or
psychotherapy cannot in a civil case, without the
consent of the patient, be examined as to any
confidential communication made for the
purpose of diagnosis or treatment of the
patient's physical, mental or emotional
condition, including alcohol or drug addiction,
between the patient and his or her physician or
psychotherapist. This privilege also applies to
persons, including members of the patient's
family, who have participated in the diagnosis or
treatment of the patient under the direction of
the physician or psychotherapist.
A psychotherapist is:
a) A person licensed to practice medicine
engaged in the diagnosis or treatment of a
mental or emotional condition; or
b) A person licensed as a psychologist by the
government while similarly engaged[Rule
130, Sec. 24(c)].
 The physician-patient privileged
communication rule essentially means that
a physician who gets information while
professionally attending a patient cannot
in a civil case be examined without the
patient‘s consent as to any facts which
would blacken the latter‘s reputation. This
rule is intended to encourage the patient
to open up to the physician, relate to him
the history of his ailment, and give him
access to his body, enabling the physician
to make a correct diagnosis of that ailment
530 Center for Legal Education and Research
and provide the appropriate cure. Any fear
that a physician could be compelled in the
future to come to court and narrate all
that had transpired between him and the
patient might prompt the latter to clam up,
thus putting his own health at great risk
(Chan vs. Chan, G.R. No. 179786, July 24,
2013).
Requisites: (PCo-CiM)
a. There must be a communication made by the
patient to thePhysician, psychotherapist or
person reasonably believed by the patient to
be authorized to practice medicine or
psychotherapy;
b. Such communication is to be examined
without the Consent of the patient;
c. The privilege is invoked in a Civil case; and
d. The confidential information was made for
the purpose of Medicaldiagnosis or treatment
of the patient.
Note:The privilege survives the death of the
patient.
Not applicable:
a. When the communication was not given in
confidence;
b. When the communication is irrelevant to the
professional employment;
c. Then the communication was made for an
unlawful purpose;
d. When the information was intended to be
made public;
e. When there was a waiver of the privilege
either by provisions of contract or law;
f. When the doctor is a medico-legal;
g. The physician-patient privilege is not violated
by permitting physician to give expert
testimony regarding hypothetical facts (Lim
vs. CA, G.R. No. 91114, September 25, 1992); or
h. Non-physician testimony on a medical
psychologist‘s report is not covered by the
physician-patient privilege (Krohn vs. CA, G.R.
NO. 108854, June 14, 1994).
The communication shall remainprivileged, even
in the hands of athird person who may
haveobtained the information,provided that the
 Purple Notes
original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last paragraph).
iv. Priest–Penitent Privilege
A minister, priest or person reasonablybelieved
to be so cannot, without theconsent of the
affected person, beexamined as to any
communication orconfession made to or any
advice givenby him or her, in his or her
professionalcharacter, in the course of
disciplineenjoined by the church to which
theminister or priest belongs [Rule 130, Sec.
24(d), as amended].
Requisites: (PrEn-Co)
1. The communication or confession must be
made to the minister or Priest or person
reasonably believed to be so, in his
professional character;
2. The communication or confession must be
made in the course of discipline Enjoined by
the church to which her belongs; and
3. The communication or confession was being
examined without the Consent of the
penitent (affected person).
Note: The old provision limited the privilege to
―penitential communications‖ made to a minister
or priest in the course of discipline enjoined by
the church to which the priest or minister
belongs. As worded, it is unduly preferential to
the Roman Catholic Church. The amendment
expands the privilege to embrace any
confidential communication by a person to a
minister or priest in his professional character as
a spiritual advisor.
Not applicable:
1. When the communication was not given in
confidence;
2. Then the communication was made for an
unlawful purpose;
3. When the information was intended to be
made public; or
4. When there was a waiver of the privilege.
The communication shall remainprivileged, even
in the hands of athird person who may
Remedial Law
haveobtained the information,provided that the
original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last paragraph).
Not applicable:
1. When the communication was not given in
confidence;
2. Then the communication was made for an
unlawful purpose;
3. When the information was intended to be
made public; or
4. When there was a waiver of the privilege.
The communication shall remainprivileged, even
in the hands of athird person who may
haveobtained the information,provided that the
original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last paragraph).
v. Public Officers and Third Person
A public officer cannot beexamined during or
after his or hertenure as to communications
madeto him or her in official confidence,when
the court finds that thepublic interest would
suffer by thedisclosure[Rule 130, Sec. 24(e), as
amended].
Requisites: (GCo-PuT)
1. The holder of the privilege is the Government
which acts through the public officer.
2. The communication must have been made to
a public officer in Confidence;
3. The communication was made during his or
her Tenure; and
4. Public interest would suffer by the disclosure
of the communication.
 Absent a claim of need to protect military,
diplomatic or sensitive national security
secrets, executive privilege cannot prevail
over due process (US vs. Nixon, 418 U.S. 683).
 At common law a governmental privilege
against disclosure is recognized with respect
to state secrets bearing on military,
diplomatic and similar matters. This privilege
is based upon public interest of such
paramount importance as in and of itself
Bar Operations C ommissions 531
 Purple Notes
Remedial Law
transcending the individual interests of a
private citizen, even though, as a
consequence thereof, the plaintiff cannot
enforce his legal rights (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995).
 The expectation of a President to the
confidentiality of his conversations and
correspondence, like the claim of
confidentiality of judicial deliberations, for
example, has all the values to which we
accord deference for the privacy of all
citizens and, added to those values, is the
necessity for protection of the public
interest in candid, objective, and even
blunt or harsh opinions in Presidential
decision-making. A President and those
who assist him must be free to explore
alternatives in the process of shaping
policies and making decisions and to do so
in a way many would be unwilling to
express except privately. These are the
considerations justifying a presumptive
privilege for Presidential communications.
The privilege is fundamental to the
operation of the government and
inextricably rooted in the separation of
powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, May 23, 1995
quoting United States vs. Nixon, 418 U.S. 683,
1973).
 Judicial control over the evidence in a case
cannot be abdicated to the caprice of
executive officers. Yet we will not go so far
as to say that the court may automatically
require a complete disclosure to the judge
before the claim of privilege will be
accepted in any case. It may be possible
to satisfy the court, from all the
circumstances of the case, that there is a
reasonable danger that compulsion of the
evidence will expose military matters
which, in the interest of national security,
should not be divulged. When this is the
case, the occasion for the privilege is
appropriate, and the court should not
jeopardize the security which the privilege
is meant to protect by insisting upon an
examination of the evidence, even by the
judge alone, in chambers.
532 Center for Legal Education and Research
In each case, the showing of necessity
which is made will determine how far the
court should probe in satisfying itself that
the occasion for invoking the privilege is
appropriate. Where there is a strong
showing of necessity, the claim of privilege
should not be lightly accepted, but even
the most compelling necessity cannot
overcome the claim of privilege if the court
is ultimately satisfied that military secrets
are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made
under the circumstances of this case, will
have to prevail (Almonte vs. Vasquez, G.R.
No. 95367, May 23, 1995 quoting United States
vs. Reynolds, 345 U.S. 1, 1953).
 The confidentiality of judicial deliberations"
mentioned in the opinion of the Court
referred to the fact that Justices of the
U.S. Supreme Court and judges of lower
federal courts have traditionally treated
their working papers and judicial notes as
private property. A 1977 proposal in the
U.S. Congress that Justices and judges of
lower federal courts "should be
encouraged to make such arrangements
as will assure the preservation and
eventual availability of their personal
papers, especially the deposit of their
papers in the same depository they select
for [their] Public Papers" was rebuffed by
the Justices who, in a letter to the
Chairman of the Subcommittee on
Regulation and Government Information of
the U.S. Senate, referred to "difficult
concerns respecting the appropriate
separation that must be maintained
between the legislative branch and this
Court." (Almonte vs. Vasquez, G.R. No. 95367,
May 23, 1995).
 There are, in addition to such privileges,
statutorily-created ones such as the
Government's privilege to withhold the
identity of persons who furnish information
of violations of laws (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995).
Note: The Supreme Court clarified that the
President or the Executive Secretary can invoke
the executive privilege. Once invoked, then the
 Purple Notes
Senate cannot compel the members of the
executive to testify before it (Neri vs. Senate
Committee, G.R No. 169777, April 20, 2006).
Members of the executive or cabinet secretaries
do not enjoy the presumption of privilege but
the President does (Neri vs. Senate Committee,
G.R. No. 180643, September 4, 2008).
Not applicable:
a)When the information is useful evidence to
vindicate the innocence of an accused
person;
b) When such information would lessen the risk
of a false testimony;
c) When it is essential to the proper disposition
of the case; or
d) When the benefit to be gained is greater than
any injury that could inure to the relation by
a disclosure of the information, then
disclosure will be compelled.
 On the other hand, where the claim of
confidentiality does not rest on the need to
protect military, diplomatic or other national
security secrets but on a general public
interest in the confidentiality of his
conversations, courts have declined to find
in the Constitution an absolute privilege of
the President against a subpoena
considered essential to the enforcement of
criminal laws(Almonte vs. Vasquez, G.R. No.
95367, May 23, 1995)
 With these safeguards outlined, it is
believed that a satisfactory resolution of the
conflicting claims of the parties is achieved.
It is not amiss to state that even matters of
national security have been inquired into in
appropriate in camera proceedings by the
courts. In Lansang vs. Garcia this Court held
closed door sessions, with only the
immediate parties and their counsel present,
to determine claims that because of
subversion there was imminent danger to
public safety warranting the suspension of
the writ of habeas corpus in 1971. Again in
Marcos vs. Manglapus the Court met behind
closed doors to receive military briefings on
the threat posed to national security by the
Remedial Law
return to the country of the former
President and his family. In the United
States, a similar inquiry into the danger to
national security as a result of the
publication of classified documents on the
Vietnam war was upheld by the U.S.
Supreme Court. We see no reason why
similar safeguards cannot be made to
enable an agency of the Government, like
the Office of the Ombudsman, to carry out
its constitutional duty to protect public
interests while insuring the confidentiality of
classified documents (Almonte vs. Vasquez,
G.R. No. 95367, May 23, 1995).
The communication shall remainprivileged, even
in the hands of athird person who may
haveobtained the information,provided that the
original partiesto the communication
tookreasonable precaution to protect
itsconfidentiality(Rule 130, Sec. 24, last paragraph).
Special Laws with Regard to State Secrets:
R.A. No. 7653 (New Central Bank Act), Sec.16
General Rule: Non-disclosure of any
information of a confidential nature or any
information on the discussions or resolutions of
the Monetary Board.
Exception: when such data or information is
required to be submitted to the President and/or
Congress, or required to be published.
R.A. No. 6981 (Witness Protection Act), Sec.7
All proceedings involving application for
admission into the program and the action taken
thereon shall be confidential in nature.
S.C. Circular (A.M. No. 01-10-5-SC-PHILJA)
The mediation proceedings and all incidents
thereto shall be kept strictly confidential, unless
otherwise specifically provided by law, and all
admissions or statements made therein shall be
inadmissible for any purpose in any proceeding.
Other Privileged Matters:
1. Newsman’s privilege
Bar Operations C ommissions 533
 Purple Notes
Remedial Law
General Rule: The publisher, editor,
columnist or duly accredited reporter of any
newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the
source of any news report or information
appearing in said publication which was
related in confidence to such publisher,
editor or reporter.
Exception: When the Court or a House or
Committee of Congress finds that such
revelation is demanded by the security of the
State (R.A. No. 53 as amended by R.A. No. 1477,
Sec. 1).
2. Rule on Examination of Child Witness
General Rule: The guardian ad litem shall
not testify in any proceeding concerning any
information, statement, or opinion received
from the child in the course of serving as a
guardian ad litem.
Exception: When the court finds it
necessary to promote the best interests of
the child.
3. Election Offenses Under the Omnibus
Election Code
Voters may not be compelled to disclose for
whom they voted [B.P. No. 881, Sec. 261(z)(5)]
4. Secrecy of Bank Deposits
General Rule: All deposits of whatever
nature with banks or banking institutions in
the Philippines including investments in
bonds issued by the Government of the
Philippines, its political subdivisions and its
instrumentalities, are hereby considered as
of an absolutely confidential nature and may
not be examined, inquired or looked into by
any person, government official, bureau or
office.
Exceptions:
a) Upon written permission of the depositor;
b) In cases of impeachment;
534 Center for Legal Education and Research
c) Upon order of a competent court in cases
of bribery or dereliction of duty of public
officials;
d) In cases where the money deposited or
invested is the subject matter of the
litigation (R.A. No. 1405, Sec. 2); or
e) In cases of violation of the Anti-Money
Laundering Act, the Anti-Money
Laundering Council may inquire into a
bank account upon order of any
competent court (Doña Adela Export
International, Inc. vs. TIDCORP, G.R. No.
201931, February 11, 2015).
Note: The privilege applies only to bank
deposits. As to other property being held by
a bank, bank personnel may be examined
upon order of a court [R.A. No. 8791, Sec. 55.1
(d)].
5. Privileged Communication Under the
Labor Code
Information and statements made at
conciliation proceedings shall be treated as
privileged communication and shall not be
used as evidence in the Commission.
Conciliators and similar officials shall not
testify in any court or body regarding any
matters taken up at conciliation proceedings
conducted by them (Art. 233, LC).
8.E.2.c. Parental and Filial Privilege
Rule(Rule 130, Sec. 25, as amended)
General Rule: No person shall be compelled to
testify against his or her parents, other direct
ascendants, children or other direct
descendants.
Exception: When such testimony is
indispensable in a crime against that person or
by one parent against the other.
Note: There is no distinction between legitimate
or illegitimate relations.
This is a testimonial privilege, not a testimonial
disqualification, found in Sections 22-24 of Rule
130 [careful not to be confused in the multiple
use of the word ―privilege‖]. Here, the witness is
 Purple Notes
Remedial Law
the holder of the privilege and has the power to Applicability criminal cases only
invoke or waive the privilege. The relative As to When such testimony is indispensable
against whom he is testifying cannot invoke nor Exceptions in a crime against that person or by
waive the privilege. However, this must be one parent against the other.
construed in the light of Art. 215 of the Family
Code, viz: 8.E.2.d. Trade Secrets

No descendant shall be compelled, in a criminal A person cannot be compelledto testify about

case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant
or by one parent against the other.
Hence, a descendant may be compelled to
testify in a criminal case where:
any trade secret, unless the non-disclosure will
conceal fraud orotherwise work injustice. When
disclosure is directed, the court shall take
suchprotective measure as the interest of the
owner of the trade secret and of the partiesand
the furtherance of justice may require(Rule 130,
Sec. 26). (n)

 The descendant-witness himself is the victim;
or,
 The descendant-witness‘s parent commits a
crime against the descendant-witness‘s other
parent.
General Rule: A person cannot be compelled
to testify about any trade secret.
Exception: The non-disclosure will conceal
fraud or otherwise work injustice.

A stepmother can be compelled to testify Note: When disclosure is directed, the court
against stepdaughter considering that they have shall take such protective measure as the
no common ancestry. The privilege applies only interest of the owner of the trade secret and of
to ―direct‖ ascendants and descendants (Lee v. the parties and the furtherance of justice.
CA, G.R. No. 177861, July 13, 2010).
A trade secret was defined in Air Philippines
The privilege is not strictly a rule on Corporation vs. Pennswell, Inc. (G.R. No. 172835,
disqualification because a descendant isnot December 13, 2007) ―as a plan or process,
incompetent or disqualified to testify against an tool,mechanism or compound known only to its
ascendant. This refers to aprivilege not to owner and those of his employees towhom it is
testify, which can be invoked or waived like necessary to confide.‖ The definition was held to
other privileges(People vs. Invencion, G.R. No. extend to ―a secretformula or process not
131636, March 05, 2003). patented, but known only to certain individuals
using it incompounding some article of trade
Filial Privilege under Rules of Court vs. having a commercial value.‖ The Court went on
Filial Privilege Under the Civil Code toexplain that a trade secret may ―consist of any
formula, pattern, device or compilationof
Distinction Rule 130 Art. 215 of information that (1) is used in one‘s business,
Sec.25, as Family Code and (2) gives the employer anopportunity to
amended obtain an advantage over competitors who do
As to who A person may A descendant may not possess theinformation.
may not be not be not be compelled
compelled compelled to to testify against 8.E.3. EXAMINATION OF WITNESS
testify against his parents and
his ascendants grandparents.
or descendants.
The examination of witnesses presented in a
As to Both parental Filial privilege trial or hearing shall be done in open court, and
Coverage and filial only. under oath or affirmation. Unless the witness is
privilege. incapacitated to speak, or the questions calls for
As to Civil and Criminal cases

Bar Operations C ommissions 535

 Purple Notes
Remedial Law
a different mode of answer, the answers of the
witness shall be given orally(Rule 132, Sec. 1). Oath Affirmation
An appeal by a person to A solemn and formal
General Rule: Examination of witness a God to witness the declaration or assertion
presented in a trial or hearing: truth of what he that the witness will tell
declares, and an the truth, etc., this being
imprecation of Divine substituted for an oath in
1. Done in open court; punishment or certain cases.
2. Under oath or affirmation; and vengeance upon him if
3. Answers of the witness shall be given orally. what he says is false.

Exceptions: The One-Day Examination of Witness Rule,

a. When the witness is incapacitated to speak;
or
b. When the question calls for a different mode
of answer.
c. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and
24(Regalado, 2008);
d. In criminal cases, by depositions or
conditional examinations, pursuant to Secs.
12 to 15, Rule 119, and Sec. 1, Rule 123; or,
by the records of the Preliminary
Investigation, under the circumstance of Sec.
1(f) of Rule 115(Regalado, 2008);
e. In criminal cases covered by the Rule on
Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies
of the witnesses who executed the same
(RIANO, Criminal Procedure, 2016 ed., citing Sec.
15, Rules on Summary Procedure);
f. In civil cases covered by the Rules on
Summary Procedure, the parties are merely
required to submit the affidavits of their
witnesses and other pieces of evidence on
the factual issues, together with their
position papers, setting forth the law and the
facts relied upon (RIANO, Civil Procedure, Vol. I,
2016 ed., citing Sec. 9 Rules on Summary
Procedure); and
g. Under the Judicial Affidavit Rule, the judicial
affidavit shall take the place of direct
testimonies of witnesses (Sec. 2, Judicial
Affidavit Rule).
Purpose: To enable the court to judge the
credibility of the witness by the witness‘ manner
of testifying, his intelligence and
demeanor(Francisco).
that is, a witness has to be fully examined in
one (1) day only, shall be strictly adhered to
subject to the courts' discretion during trial on
whether or not to extend the direct and/or
cross-examination for justifiable reasons[A.M. No.
03-1-09-SC, paragraph 5(i)].
Most Important Witness Rule
The trial judge shall determine the most
important witnesses to be heard and limit the
number of witnesses. The facts to be proven by
each witness and the approximate number of
hours per witness shall be fixed[A.M. No. 03-1-09-
SC, paragraph 5(j)].
Requisites for transcript to be deemed
prima facie a correct statement of the
proceedings:
a. Made by the official stenographer,
stenotypist or recorder; and
b. Certified as correct by him(Rule 132, Sec. 2).
Note: The rules now require even the
statements of the judge be recorded.
8.E.3.a. Rights and Obligations of a
Witness
Obligation of a Witness
To answer questions, although his or her
answer may tend to establish a claim against
him or her.
Rights of a Witness (PI-DDS)

Oath vs. Affirmation

536 Center for Legal Education and Research

 Purple Notes
Remedial Law
1. To be protected from Irrelevant, improper, A witness need not worry that the oral
or insulting questions, and from harsh or examination might subject him or her
insulting demeanor; tobadgering by adverse counsel. The trial court‘s
2. Not to be Detained longer than the interests duty is to protect every witnessagainst
of justice require; oppressive behavior of an examiner and this is
3. Not to be examined except only as to especially true where thewitness is of advanced
matters Pertinent to the issue; age (Lee vs. Court of Appeals, G.R. No. 177861, July
4. Not to give an answer which will tend to 13, 2010).
Subject him or her to a penalty for an
offense, unless otherwise provided by law; Testifying in Narrative Form
and
5. Not to give an answer which will tend to General Rule:The witness‘ testimony should be
Degrade his or her reputation, unless it be to elicited by way of questions and answers, and
the fact at issue or from which the fact in not in the narrative form. The reason is that if
issue would be presumed of his or her witness testifies in narrative form, the adverse
previous final conviction for an offense(Rule party is deprived of the opportunity to object to
132, Sec. 3, as amended). the testimony beforehand (Riguera).
Note: The exception in number (4) above refers
Exception:The court may allow the child
to immunity statutes wherein the witness is
witness to testify in a narrative form (A.M. No.
granted immunity from criminal prosecution for
004-07-SC, Rule on Examination of a Child Witness,
offenses admitted in his testimony(Section 14, Sec. 19).
R.A. No. 6981 or the Witness Protection Act).
Recantation of a Witness
Kinds of Immunity Statutes Courts must NOT automatically exclude the
original statement based solely on recantation.
Transactional Use-and-Derivative-
It should determine which statement should be
Immunity Use Immunity
Grants immunity to the Prohibits the use of
given credence through a comparison of the
witness from prosecution witness' compelled original and the new statements, applying the
for an offense to which testimony and its fruits in general rules of evidence (PLDT vs. Bolso, G.R No.
his compelled testimony any manner in 159701, August 17, 2007).
relates (Galman vs. connection with the
Pamaran, G.R. Nos. criminal prosecution of 8.E.3.b. Order in the examination of an
71208-09, August 30, the witness (Galman vs. individual witness
19850). Pamaran, G.R. Nos.
71208-09, August 30, 1. Direct examination by the proponent.
1985).
2. Cross-examination by the opponent.
3. Re-direct examination by the proponent.
Broader in the scope of A witness is only assured
its protection in the that his or her particular 4. Re-cross-examination by the opponent.
sense that by its grant, a testimony and evidence
witness can no longer be derived from it will not Direct examination is the examination-in-
prosecuted for any be used against him or chief of a witness by the party presenting him or
offense whatsoever her in a subsequent her on the facts relevant to the issue (Rule 132,
arising out of the act or prosecution (Tanchanco Sec. 5, as amended).
transaction to which the vs. Sandiganbayan, G.R.
testimony relates Nos. 141675-96, Submission of Judicial Affidavits and
(Tanchanco vs. November 25, 2005). Exhibits in Lieu of Direct Testimonies
Sandiganbayan, G.R.
Nos. 141675-96, In civil actions, the parties shall file with the
November 25, 2005). court and serve on the adverse party:

Bar Operations C ommissions 537

 Purple Notes
Remedial Law
1. The judicial affidavits of their witnesses,
which shall take the place of such witnesses'
direct testimonies; and
2. The parties' documentary or object evidence,
if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and
so on in the case of the complainant or the
plaintiff, and as Exhibits 1, 2, 3, and so on in
the case of the respondent or the defendant
(A.M. No. 12-8-8-SC, Judicial Affidavit Rule, Sec.
2, as amended).
Note: Every pleading stating a party's claims or
defenses shall, in addition to those mandated by
Rule 7, Sec. 2, state the following:
1. Names of witnesses who will be presented to
prove a party's claim or defense;
2. Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be attached
to the pleading and form an integral part
thereof.
Only witnesses whose judicial affidavits are
attached to the pleading shall be presented
by the parties during trial. Except if a party
presents meritorious reasons as basis for the
admission of additional witnesses, no other
witness or affidavit shall be heard or
admitted by the court; and
Documentary and object evidence in support
of the allegations contained in the pleading
(Rule 7, Sec. 6).(n)
The Judicial Affidavit Rule shall apply to all
criminal actions:
a) Where the maximum of the imposable
penalty does not exceed six years;
b) Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
c) With respect to the civil aspect of the
actions, whatever the penalties involved are
[A.M. No. 12-8-8-SC, Judicial Affidavit Rule, Sec.
9(a)].
Cross-Examination
Upon the termination of the direct examination,
the witness may be cross-examined by the
538 Center for Legal Education and Research
adverse party on any relevant matter, with
sufficient fullness and freedom to test his or her
accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue (Rule 132,
Sec. 6, as amended).
Purpose:
1. To discredit the witness;
2. To discredit the testimony of the witness;
3. To elicit admissions from a witness; and
4. To clarify certain matters.
 The cross-examination of a witness is a
prerogative of the party against whom the
witness is called. The purpose of cross-
examination is to test the truth or accuracy
of the statements of a witness made on
direct examination. The party against whom
the witness testifies may deem any further
examination unnecessary and instead rely
on any other evidence theretofore adduced
or thereafter to be adduced or on what
would be believed is the perception of the
court thereon. Certainly, the trial court is
not bound to give full weight to the
testimony of a witness on direct
examination merely because he is not cross-
examined by the other party (People of the
Philippines vs. Fabre, G.R. No. 146697, July 23,
2002).
 In formulating those questions on cross-
examination, defense counsel obviously did
not take into account that he was cross-
examining a child of tender age (Michelle
was approximately nine [9] years of age at
the time she gave her testimony in open
court), susceptible to confusion and
probably easily intimidated. The questions
posed by defense counsel to Michelle
appear to us to have been long, elaborate
and circumlocutious difficult to comprehend
even for adults. Thus, at one point, the trial
court directed the defense counsel to
simplify his questions. Defense counsel,
after that directive from the trial court, tried
once more but did not succeed in simplifying
his questions. Promptly thereafter, defense
counsel ceased cross-examination after
stating for the record that Michelle was
 Purple Notes
"unable to answer the question propounded
by him" and that such counsel would "just
leave it to the sound discretion of the
honorable court. No further questions." It is
clear to this Court that defense counsel
exercised no substantial effort to present
intelligible questions to complaining witness
Michelle Dolorical designed to elicit
straightforward answers. We consider that
Michelle in all probability, simply failed to
grasp some of the questions put to her on
cross-examinations. The defense had made
it very difficult if not practically impossible
for her to answer those questions
intelligently and truthfully (People of the
Philippines vs. Guamos, G.R. No. 109662,
February 21, 1995).
Scope or Limits of Cross-Examination
The rule on cross-examination has shifted from
the American Rule to English Rule.
American Rule English Rule
Commonly known as the Commonly known as the
―Scope-of-Direct Rule‖. ―Wide-Open Rule‖.
The cross-examination of The witness may be fully
the witness shall be cross-examined upon all
limited to the matters matters material to the
taken up in the direct issue, the examination
examination or anything not being confined to the
connected therewith. matters inquired about in
the direct examination.
Witness may be cross-examined by the
adverse party
1. As to any relevant matter;
2. With sufficient fullness and freedom, to test
his accuracy and truthfulness and freedom
from interest or bias, or the reverse; and
3. To elicit all important facts bearing upon the
issue.
Doctrine of Incomplete Testimony
When cross-examination cannot be done or
completed due to causes attributable to the
party who offered the witness, the incomplete
testimony is rendered incompetent and should
be stricken from the record (People of the
Remedial Law
Philippines vs. Seneris, G.R. No. L-48883, August 6,
1980).
Effect of death or absence of a witness
after the direct examination by the
proponent
a) If the witness was not cross-examined
because of causes attributable to the cross-
examining party and the witness had always
made himself available for cross-
examination, the direct testimony of the
witness shall remain on record and cannot be
stricken off because the cross-examiner is
deemed to have waived his right to cross-
examine (Dela Paz vs. IAC, G.R No. 71537,
September 17, 1987).
b) If the witness was partially cross-examined
but died before the completion of his cross-
examination, his testimony on direct may be
stricken out but only with respect to the
testimony not covered by the cross-
examination (People vs. Seneris, G.R No. L-
48883, August 6, 1980).
c) The absence of a witness is NOT sufficient to
warrant the striking out of his testimony for
failure to appear for further cross-
examination where the witness has already
been sufficiently cross-examined, and the
matter on which cross-examination is sought
is not in controversy (People vs. Seneris, G.R
No. L-48883, August 6, 1980).
Re-Direct Examination
After the cross-examination of the witness has
been concluded, he or she may be re-examined
by the party calling him or her, to explain or
supplement his or her answers given during the
cross-examination. On re-direct examination,
questions on matters not dealt with during the
cross-examination, may be allowed by the court
in its discretion (Rule 132, Sec. 7, as amended).
Purpose: To explain or supplement the
answers given during the cross-examination.
Note: Court may allow questions on matters
not dealt with during the cross-examination.
Re-cross-examination
Bar Operations C ommissions 539
 Purple Notes
Remedial Law
Upon the conclusion of the re-direct
examination, the adverse party may re-cross-
examine the witness on matters stated in his or
her re-direct examination, and also on such
other matters as may be allowed by the court in
its discretion (Rule 132, Sec. 8, as amended).
Note: Court may allow questions on matters
not dealt with during the re-direct examination.
Recalling Witness
When made: After the examination of a
witness by both sides has been concluded.
The witness cannot be recalled without leave of
the court. The court will grant or withhold leave
in its discretion, as the interests of justice may
require (Rule 132, Sec. 9).
The discretion to recall a witness is not properly
invoked or exercisable by an applicant‘s mere
general statement that there is a need to recall
a witness ―in the interest of justice,‖ or ―in order
to afford a party full opportunity to present his
case,‖ or that, as here, ―there seems to be many
points and questions that should have been
asked‖ in the earlier interrogation. Something
more than the bare assertion of the need to
propound additional questions is essential
before the Court‘s discretion may rightfully be
exercised to grant or deny recall. There must be
a satisfactory showing of some concrete,
substantial ground for the recall. Absent such
particulars there would be no foundation for a
trial court to authorize the recall of any witness
(People vs. Rivera, G.R. No. 98376, August 16, 1991).
Exclusion and Separation of Witnesses
General Rule: The court, motu proprio or upon
motion, shall order the witnesses excluded so
that they cannot hear the testimony of other
witnesses.
Exceptions: (ERNA)
a) A party who is a Natural person;
b) A duly designated Representative of a
juridical entity which is a party to the case;
540 Center for Legal Education and Research
c) A person whose presence is Essential to the
presentation of the party‘s cause; or
d) A person Authorized by statute to be
present.
Note: The court may also cause witnesses to be
kept separate and to be prevented from
conversing with one another, directly or through
intermediaries, until all shall have been
examined (Rule 132, Sec. 15, as amended).
8.E.3.c. Leading and Misleading Questions
Leading question – a question which suggests
to the witness the answer which the examining
party desires.
General Rule: Leading questions are NOT
allowed.
Exceptions: (PCAChU-D-ChIFD)
1. On Cross-examination;
2. On Preliminary matters;
3. There is Difficulty in getting direct and
intelligible answers from a witness who is:
a) Ignorant;
b) A Child of tender years;
c) Feeble mind; or
d) A Deaf-mute;
4. On an Unwilling or hostile witness;
5. Witness is an Adverse party or an officer,
director, or managing agent of a public or
private corporation or of a partnership or
association which is an adverse party (Rule
132, Sec. 10, as amended).
6. In all stages of examination of a Child IF the
same will further the interests of justice (Sec.
20, Rule on Examination of a Child Witness, A.M
No. 004-07 SC).
A child of tender years may be asked leading
questions under Section 10(c), Rule 132 of the
Rules of Court. Section 20 of the 2000 Rule on
Examination of a Child Witness also provides
that the court may allow leading questions in all
stages of examination of a child if the same will
further the interests of justice. This rule was
formulated to allow children to give reliable and
complete evidence, minimize trauma to children,
encourage them to testify in legal proceedings
 Purple Notes
Remedial Law
and facilitate the ascertainment of truth (People or she has been convicted of an offense (Rule
v. Ilogon, G.R. No. 206294, June 29, 2016). 132, Sec. 11, as amended).

Note: A witness may be considered as unwilling Contradictory Prior Inconsistent

or hostile only if so declared by the court upon Evidence Statements
adequate showing of his or her: (MAU) Evidence that the Evidence that the witness
witness‘ testimony is has made at other times
wrong or untrue. The statements inconsistent
a) Adverse interest;
purpose is not just to with his present
b) Unjustified reluctance to testify; or show an inconsistency testimony (Riguera).
c) Having Misled the party into calling him or but to prove outright that
her to the witness stand (Rule 132, Sec. 13, the witness is mistaken
as amended). or lying (Riguera).
Predicate need not be The predicate must first
Misleading question – one which assumes as laid (Riguera). be laid (Riguera). The
true a fact not yet testified to by the witness, or witness needs to be
contrary to that which he has previously stated cross-examined upon the
(Rule 132, Sec. 10, as amended). point of prior
contradictory statements.
Unless a ground is thus
Note: Misleading questions are never allowed;
laid upon cross-
there are no exceptions (Ibid.). examination, evidence of
contradictory statements
8.E.3.d. Impeachment of Witness are not admissible to
impeach a witness
Impeachment of a witness means to destroy or (People vs. Badilla,G.R.
put in doubt the credibility of the witness or his No. L-23792, February
testimony. It is not limited to showing that the 17, 1926).
witness is lying but also to show that witness
may be mistaken in his observation or narration  Laying the predicate means that it is the
(Riguera). duty of a party trying to impugn the
testimony of a witness by means of prior or
Impeachment is an attack against the credibility subsequent inconsistent statements,
of a witness (Sheppard v. State, 145 S.E. 654; whether oral or in writing, to give the
Words & Phrases, 1940 ed., Vol. 20, pp. 195, 196). It witness a chance to reconcile his conflicting
constitutes then a grave challenge to a witness‘ declaration (People of the Philippines vs.
veracity (People vs. Kali, G.R. No. L-1175, December Relucio,G.R. Nos. 132484-85, November 15,
22, 1948). 2002).

Adverse Party's Witness  A witness cannot be impeached by evidence

Means of Impeaching Adverse Party‘s Witness: of contradictory or prior inconsistent
(GP-CoCo) statements until the proper foundation or
predicate has been laid by the party against
a) Contradictory evidence; whom said witness was called (People of the
Philippines vs. De Guzman, G.R. No. 117217,
b) By evidence that his General reputation for
December 2, 1996).
truth, honesty, or integrity is bad;
c) By urior inconsistent statements; or
Prior Inconsistent Statements
d) Conviction.
General Rule: A witness may be impeached by
Note: A witness may not be impeached by
evidence contrary to his testimony or by
evidence of particular wrongful acts, except that
involving him in material or serious
it may be shown by the examination of the
contradiction.
witness, or the record of the judgment, that he

Bar Operations C ommissions 541

 Purple Notes
Remedial Law
Exceptions: opportunity to explain
the discrepancy, if he If the fiscal should
1. Where contradictions are natural can (People vs refuse, upon due notice,
concomitants to human limitations; Castillano G.R No. to produce the
139412, April 2, 2003). document, secondary
2. Where contradiction is overcome by the
evidence of the contents
probable nature of the witness‘ story; thereof would be
3. Contradiction of aged and ignorant admissible (People vs
witnesses; Castillano, G.R No.
4. Contradiction in details by confusion, 139412, April 2, 2003).
excitement, and fright;
5. Where discrepancies refer to minor details;
and Falsus in Uno, Falsus in Omnibus
6. Where contradictions are satisfactorily
explained (ANNOTATION: Impeachment of The maxim falsus in uno, falsus in omnibus
Witness, 53 SCRA 309, October 23, 1973). deals only with the weight of evidence and is
not a positive rule of law; the rule is not an
How the Witness is Impeached by Evidence of inflexible one of universal application. Modern
Inconsistent Statements? trend in jurisprudence favors more flexibility
when the testimony of a witness may be partly
1. The statements must be related to the believed and partly disbelieved depending on
witness, with the circumstances of the times the corroborative evidence presented at the
and places and the persons present. trial. Thus, where the challenged testimony is
2. the witness must be asked whether he made sufficiently corroborated in its material points, or
such statements, and if so, he must be where the mistakes arise from innocent lapses
allowed to explain them. and not from an apparent desire to pervert the
3. If the statements are in writing, they must truth, the rule may be relaxed. It is a rule that is
be shown to the witness before any question neither absolute nor mandatory and binding
is put to him concerning them (Rule 132, Sec. upon the court, which may accept or reject
14). portions of the witness testimony based on its
inherent credibility or on the corroborative
 The witness must be given a chance to evidence in the case (People vs. Lucena, G.R. No.
recollect and to explain the apparent 137281, April 3, 2001).
inconsistency between his two statements
and state the circumstances under which Other Modes of Impeaching a Witness:
they were made. This Court held in People
vs. Escosura that the statements of a a) By involving him during cross-examination in
witness prior to her present testimony contradiction;
cannot serve as basis for impeaching her b) By showing the impossibility or improbability
credibility unless her attention was directed of his testimony;
to the inconsistencies or discrepancies and c) By proving action or conduct of the witness
she was given an opportunity to explain said inconsistent with his testimony; or
inconsistencies (People of the Philippines vs. d) By showing bias, interest or hostile feeling
Castellano, G.R. No. 139412, 400 SCRA 401, April against the adverse party (Herrera, 1999).
2, 2003).

Witness ADMITS the Witness DENIES the Impeaching a Witness By Evidence of

Making of Making of Conviction of Crime.
Contradictory Contradictory
Statements Statements General Rule:
The accused has the The accused has the
benefit of the right to prove that the The witness may be impeached if he or she has
admission, while the witness made such been convicted by final judgment of:
witness has the statement.

542 Center for Legal Education and Research

 Purple Notes
a) A crime punishable by a penalty in excess of
one year; or
b) A crime involving moral turpitude, regardless
of penalty.
Exceptions: If the conviction has been the
subject of an amnesty or annulment of the
conviction (Rule 132, Sec. 12).(n)
Impeaching a Party’s Own Witness
General Rule: The party producing a witness is
NOT allowed to impeach his credibility.
Remedial Law
Note: The writing or record must be produced
and may be inspected by the adverse party,
who may, if he or she chooses, cross-examine
the witness upon it, and may read it in evidence
(Rule 132, Sec. 16, as amended).
Past Recollection Recorded
A witness may testify from such a writing or
record, though he or she retain no recollection
of the particular facts, if he or she is able to
swear that the writing or record correctly stated
the transaction when made.

Exceptions: When the witness is: (UHA) Note: Such evidence must be received with
caution (Rule 132, Sec. 16, as amended).
a) An Unwilling witness;
b) A Hostile witness; or Requisites:
c) An Adverse party or an officer, director, or
managing agent of a public or private 1. The written record or memorandum must
corporation or of a partnership or association have been written by the witness himself or
which is an adverse party (Rule 132, Sec. 13). by someone under his direction;
2. It must have been written at the time the
Note: A witness may be considered as unwilling fact or event occurred or immediately
or hostile only if so declared by the court upon thereafter or at any time when the facts
adequate showing of his or her: (MAU) were still fresh in his mind;
3. The record or memorandum must be
a) Adverse interest; produced and may be inspected by the
b) Unjustified reluctance to testify; or adverse party who may cross-examine the
c) Having Misled the party into calling him or witness on it, and may read it in evidence.
her to the witness stand.
Present Recollection Past Recollection
An unwilling or hostile witness may also be Revived Recorded
impeached and cross-examined by the adverse The memory of the The witness fails to have
party, but such cross-examination must only be witness is obscure but her memory refreshed
on the subject matter of his or her examination- there is still memory. after being presented
in-chief (Rule 132, Sec. 13, as amended). The witne with the writing.
ss is presented the
8.E.3.e. Referral of Witness to memorandum or record
with the expectation that
Memorandum
it will jog his memory so
Present Recollection Revived that the he can testify
from his now refreshed
A witness may be allowed to refresh his or her memory.
memory respecting a fact, by anything written It is the testimony of the It is the writing itself, not
or recorded by himself or herself or under his or witness, not the memory the oral testimony, that
her direction at the time when the fact occurred, aid, that serves as the becomes the evidence.
or immediately thereafter, or at any other time evidence.
when the fact was fresh in his or her memory The witness simply Witness must swear that
and he or she knew that the same was correctly testifies that he knows the writing correctly
that the memorandum is states the transaction.
written or recorded.
correctly written by him
or under his direction; no

Bar Operations C ommissions 543

 Purple Notes
Remedial Law
need to swear. Relative Disqualification of Guardian ad
Litem
8.E.3.f. Examination of a Child Witness
(A.M. NO. 004-07-SC, November 21, 2000) The guardian ad litem shall not testify in any
proceeding concerning any information,
Applicability of the rule statement, or opinion received from the child in
the course of serving as a guardian ad litem,
General Rule: This Rule shall apply in all unless the court finds it necessary to promote
criminal proceedings and non-criminal the best interests of the child [Sec. 5(e)].
proceedings involving child witnesses.
Competency of a Child Witness
This Rule shall govern the examination of child
witnesses who are: (VAW) General Rule: Every child is presumed
qualified to be a witness.
1. Victims of crime;
2. Accused of a crime; and Exception: When substantial doubt exists
3. Witnesses to crime. regarding the ability of the child to: (PCARD)
Exception: Where the Rule provides otherwise a) Perceive;
(Sec. 1). b) Remember;
c) Communicate;
Construction of the Rule d) Distinguish truth from falsehood; or
e) Appreciate the duty to tell the truth in court.
This Rule shall be liberally construed to uphold
the best interests of the child and to promote Note: The court shall conduct a competency
maximum accommodation of child witnesses examination of a child, motu proprio or on
without prejudice to the constitutional rights of motion of a party when it finds that such
the accused (Sec. 3). substantial doubt exists.

Meaning of ―Child Witness" 1. Proof of necessity. - A party seeking a

competency examination must present
General Rule: A ―child witness‖ is any person proof of necessity of competency
who at the time of giving testimony is below the examination. The age of the child by itself is
age of eighteen (18) years, and not a sufficient basis for a competency
examination.
Exception: In child abuse cases, a child
includes one over eighteen (18) years but is 2. Burden of proof. - To rebut the
found by the court as unable to fully take care presumption of competence enjoyed by a
of himself or protect himself from abuse, child, the burden of proof lies on the party
neglect, cruelty, exploitation, or discrimination challenging his competence.
because of a physical or mental disability or
condition [Sec. 4(a)]. 3. Persons allowed at competency
Guardian ad Litem examination. Only the following are
allowed to attend a competency
A ―guardian ad litem‖ is a person appointed by examination:
the court where the case is pending for a child a. The judge and necessary court
who is a victim of, accused of, or a witness to a personnel;
crime to protect the best interests of the said b. The counsel for the parties;
child [Sec. 4(e)]. c. The guardian ad litem;
d. One or more support persons for the
child; and

544 Center for Legal Education and Research

 Purple Notes
e. The defendant, unless the court
determines that competence can be fully
evaluated in his absence.
4. Conduct of examination. - Examination
of a child as to his competence shall be
conducted only by the judge. Counsel for
the parties, however, can submit questions
to the judge that he may, in his discretion,
ask the child.
5. Developmentally appropriate
questions. - The questions asked at the
competency examination shall be
appropriate to the age and developmental
level of the child; shall not be related to the
issues at trial; and shall focus on the ability
of the child to remember, communicate,
distinguish between truth and falsehood,
and appreciate the duty to testify truthfully.
6. Continuing duty to assess
competence. - The court has the duty of
continuously assessing the competence of
the child throughout his testimony (Sec. 6).
Examination of a Child Witness
General Rule: The examination of a child
witness presented in a hearing or any
proceeding shall be done in open court. The
answers shall be given orally.
Exceptions:
a) When witness is incapacitated to speak; or
b) When the question calls for a different mode
of answer.
Note: The party who presents a child witness or
the guardian ad litem of such child witness may,
however, move the court to allow him to testify
in the manner provided in this Rule (Sec. 8).
Mode of Questioning
The court shall exercise control over the
questioning of children so as to:
1. Facilitate the ascertainment of the truth;
Remedial Law
2. Ensure that questions are stated in a form
appropriate to the developmental level of the
child;
3. Protect children from harassment or undue
embarrassment; and
4. Avoid waste of time (Sec. 19).
Testifying in Narrative Form
The court may allow the child witness to testify
in a narrative form (Sec. 19).
Leading Questions, When Allowed
The court may allow leading questions in all
stages of examination of a child if the same will
further the interests of justice (Sec. 20).
Under Section 20 of A.M. No. 004-07-SC or the
Rule on the Examination of a Child Witness, ,
the court may allow leading questions in all
stages of examination of a child if the same will
further the interests of justice. This rule was
formulated to allow children to give reliable and
complete evidence, minimize trauma to children,
encourage them to testify in legal proceedings
and facilitate the ascertainment of truth (People
vs. Golidan, G.R. No. 205307, January 11, 2018).
Child witnesses may testify in narrative form and
leading questions may be allowed by the trial
court in all stages of the examination if the
same will further the interest of justice (People
vs. Santos, G.R. No. 172322, September 8, 2006).
Corroboration
Corroboration shall not be required of a
testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of
fact, conclusion, or judgment subject to the
standard of proof required in criminal and non-
criminal cases.
Live-Link Television Testimony of a Child
Witness
When Applicable
In a criminal case where a child is a witness or a
victim, the prosecutor, counsel or the guardian
Bar Operations C ommissions 545
 Purple Notes
Remedial Law
ad litem may apply for an order that the
testimony of the child be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television.
Application by Guardian ad Litem
General Rule: Before the guardian ad litem
applies for an order under this section, he shall
consult the prosecutor or counsel and shall defer
to the judgment of the prosecutor or counsel
regarding the necessity of applying for an order.
Exception: In case the guardian ad litem is
convinced that the decision of the prosecutor or
counsel not to apply will cause the child serious
emotional trauma, he himself may apply for the
order [Sec. 25(a)].
Period of Application
General Rule: The person seeking such an
order shall apply at least five (5) days before
the trial date.
Exception: When the court finds on the record
that the need for such an order was not
reasonably foreseeable [Sec. 25(a)].
Determination by the Judge
The court may motu proprio hear and
determine, with notice to the parties, the need
for taking the testimony of the child through
live-link television [Sec. 25(b)].
The judge may question the child in chambers,
or in some comfortable place other than the
courtroom, in the presence of the support
person, guardian ad litem, prosecutor, and
counsel for the parties. The questions of the
judge shall not be related to the issues at trial
but to the feelings of the child about testifying
in the courtroom [Sec. 25(c)].
The court may order that the testimony of the
child be taken by live-link television if there is a
substantial likelihood that the child would suffer
trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the
case may be. The trauma must be of a kind
which would impair the completeness or
546 Center for Legal Education and Research
truthfulness of the testimony of the child [Sec.
25(f)].
Exclusion of Any Person
The judge may exclude any person, including
the accused, whose presence or conduct causes
fear to the child [Sec. 25(d)].
Videotaped Deposition of a Child Witness
Who may apply
The prosecutor, counsel, or guardian ad litem
may apply for an order that a deposition be
taken of the testimony of the child and that it be
recorded and preserved on videotape [Sec.
27(a)].
Before the guardian ad litem applies for an
order under this section, he shall consult with
the prosecutor or counsel subject to the second
and third paragraphs of section 25(a) .
When applicable
If the court finds that the child will not be able
to testify in open court at trial, it shall issue an
order that the deposition of the child be taken
and preserved by videotape [Sec. 27(b)].
Conduct of Deposition
The judge shall preside at the videotaped
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the
grounds for the objection shall be stated and
shall be ruled upon at the time of the taking of
the deposition [Sec. 27(c)].
Persons Who May be Permitted to be
Present
1. The prosecutor;
2. The defense counsel;
3. The guardian ad litem;
4. The accused, subject to sub-section (e);
5. Other persons whose presence is determined
by the court to be necessary to the welfare
and well-being of the child;
6. One or both of his support persons, the
facilitator and interpreter, if any;
7. The court stenographer; and
 Purple Notes
8. Persons necessary to operate the videotape
equipment [Sec. 27(c)].
Exclusion of the Accused
If the order of the court is based on evidence
that the child is unable to testify in the physical
presence of the accused, the court may direct
the latter to be excluded from the room in which
the deposition is conducted. In case of exclusion
of the accused, the court shall order that the
testimony of the child be taken by live-link
television in accordance with Section 25 of this
Rule. If the accused is excluded from the
deposition, it is not necessary that the child be
able to view an image of the accused [Sec.
27(e)].
Videotape Deposition in Lieu of Testimony
at the Trial
The court may admit into evidence the
videotaped deposition of the child in lieu of his
testimony at the trial if at the time of trial, the
court finds that the child is:
a) Unable to testify for a reason stated in
Section 25(f) of this Rule; or
b) Unavailable for any reason described in
Section 4(c), Rule 23 of the 1997 Rules of
Civil Procedure [Sec. 27(i)].
Note: The court shall issue an order stating the
reasons therefor.
Hearsay Exception in Child Abuse Cases
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
criminal proceeding (Sec. 28).
Rules in Admitting Hearsay Statement
Before such hearsay statement may be
admitted, its proponent shall make known to the
adverse party the intention to offer such
statement and its particulars to provide him a
fair opportunity to object. If the child is
available, the court shall, upon motion of the
adverse party, require the child to be present at
the presentation of the hearsay statement for
Remedial Law
cross-examination by the adverse party. When
the child is unavailable, the fact of such
circumstance must be proved by the
proponent[Sec. 28(a)].
Ruling on the Admissibility
In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
1. Whether there is a motive to lie;
2. The general character of the declarant child;
3. Whether more than one person heard the
statement;
4. Whether the statement was spontaneous;
5. The timing of the statement and the
relationship between the declarant child and
witness;
6. Cross-examination could not show the lack of
knowledge of the declarant child;
7. The possibility of faulty recollection of the
declarant child is remote; and
8. The circumstances surrounding the
statement are such that there is no reason to
suppose the declarant child misrepresented
the involvement of the accused [Sec. 28(b)].
Unavailable Child Witness
The child witness shall be considered
unavailable if the child: (SEx-DAb)
a) Is Deceased;
b) Suffers from physical infirmity, lack of
memory, mental illness;
c) Will be Exposed to severe psychological
injury; or
d) Is Absent from the hearing and the
proponent of his statement has been unable
to procure his attendance by process or
other reasonable means [Sec. 28(c)].
When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence [Sec.
28(d)].
Sexual Abuse Shield Rule
Bar Operations C ommissions 547
 Purple Notes
Remedial Law
General Rule: The following evidence is not
admissible in any criminal proceeding involving
alleged child sexual abuse:
1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec.
30(a)].
2. The Prosecuting attorney;
3. Defense counsel;
4. The Guardian ad litem;
5. Agents of investigating law enforcement
agencies; and
6. Other persons as determined by the court.
Exception: Upon written request and order of
the court [Sec. 31(a)].

Exception: Evidence of specific instances of Note: Whoever publishes or causes to be

sexual behavior by the alleged victim to prove published in any format the name, address,
that a person other than the accused was the telephone number, school, or other identifying
source of semen, injury, or other physical information of a child who is or is alleged to be
evidence shall be admissible [Sec. 30(b)]. a victim or accused of a crime or a witness
thereof, or an immediate family of the child shall
Procedure be liable to the contempt power of the court
[Sec. 31(d)].
A party intending to offer such evidence must:
8.E.4. ADMISSIONS AND CONFESSIONS
1. File a written motion at least fifteen (15)
days before trial, specifically describing the Admission is an act, declaration or omission of a
evidence and stating the purpose for which it party as to a relevant fact (Rule 130, Sec. 27).
is offered, unless the court, for good cause,
requires a different time for filing or permits Confession is a categorical acknowledgement of
filing during trial; and guilt made by an accused of the offense
2. Serve the motion on all parties and the charged or any offense necessarily included
guardian ad litem at least three (3) days therein (Rule 130, Sec. 34).
before the hearing of the motion.
Admission Confession
Before admitting such evidence, the court must An acknowledgment of An acknowledgment in
conduct a hearing in chambers and afford the some fact or express terms, by a party
child, his guardian ad litem, the parties, and circumstance which in in a criminal case, of his
itself is insufficient to guilt of the crime
their counsel a right to attend and be heard.
authorize a conviction, charged (People vs.
The motion and the record of the hearing must and which tends only to Agustin, G.R. No.
be sealed and remain under seal and protected establish the ultimate 110290, January 25,
by a protective order set forth in section 31(b). fact of guilt (People vs. 1995).
The child shall not be required to testify at the Agustin, G.R. No.
hearing in chambers except with his consent 110290, January 25,
(Sec. 30). 1995).
There is merely a There is an
Confidentiality of Records statement of fact not acknowledgment of guilt
directly involving an (Ladiana vs. People, G.R.
General Rule: acknowledgment of guilt No. 144293, December 4,
or of the criminal intent 2002).
to commit the offense
Any record regarding a child shall be confidential with which one is
and kept under seal. record shall only be charged (Ladiana vs.
released to the following: (PD-GAMOt) People, G.R. No. 144293,
December 4, 2002).
1. Members of the court staff for administrative May be made by a third Can be made only by the
use; person party himself

548 Center for Legal Education and Research

 Purple Notes
May be express or Must be in express terms
implied
Classifications of Admissions:
1. Judicial Admissions
a. Formal judicial admissions; and
b. Informal judicial admissions
2. Extrajudicial Admissions
a. Express extrajudicial admissions; and
b. Implied extrajudicial admissions
A formal judicial admission is a party‘s own,
deliberate, clear, and unequivocal statement
about a material fact. Once made, the
statement cannot be contradicted and is
therefore conclusively bound to the party.
 The rule is that the testimony on the
witness stand partakes of the nature of a
formal judicial admission when a party
testifies clearly and unequivocally to a fact
which is peculiarly within his own
knowledge(Republic vs. Sandiganbayan, G.R.
No. 152154, July 15, 2003).
Informal judicial admissions are facts that
are ―incidentally‖ admitted during the judicial
proceeding and are simply regarded as a piece
of evidence that is not binding or conclusive.
Similar to any other form of evidence, informal
admissions are subject to contradiction or
explanation.
Express extrajudicial admissions are those
made in definite, certain and unequivocal
manner.
Implied extrajudicial admissions are those
which may be inferred from the act, conduct,
declaration, silence or omission of a party
(Herrera).
Admissions that are admissible against a
party: (PACo-ACo-Si-JC)
1. Admissions Against interest (Rule 130, Sec.
27);
2. Compromises (Rule 130, Sec. 28);
3. Exceptions to Res Inter Alios Acta:
Remedial Law
a. Co-partner‘s admissions (Rule 130, Sec.
30);
b. Agent‘s admissions (Rule 130, Sec. 30);
c. Admissions by a Joint owner, joint debtor,
or other person jointly interested with the
party (Rule 130, Sec. 30);
d. Co-conspirator‘s statements (Rule 130,
Sec. 31);
e. Admission by Privies (Rule 130, Sec. 32);
and
4. Admission by Silence (Rule 130, Sec. 33)
8.E.4.a. Admission by a Party
The act, declaration or omission of a party as to
a relevant fact may be given in evidence against
him. His admission is, however, not admissible
in his favor because it would be self-serving
evidence.
An admission may be in the form of: (ASO)
a. An Act;
b. A Statement or declaration; or
c. An Omission (Riguera).
Elements for an Admission to be
Admissible: (FACK)
1. Must involve matters of Fact, not of law;
2. Must be Categorical and definite;
3. Must be Knowingly and voluntarily made;
and,
4. Must be Adverse to the admitter‘s interest.
Otherwise, it would be self-serving and
generally inadmissible.
The common objection known as ―self-serving‖
is not correct because almost all testimonies are
self-serving. The proper basis for objection is
―hearsay‖ (People vs. Singco, G.R. No. 188130, July
26, 2010).
Self-serving statements are those made by a
party out of court advocating his own interest;
they do not include a party‘s testimony as a
witness in court. Self-serving statements are
inadmissible because the adverse party is not
given the opportunity for cross-examination, and
their admission would encourage fabrication of
testimony. This cannot be said of a party‘s
Bar Operations C ommissions 549
 Purple Notes
Remedial Law
testimony in court made under oath, with full against the pleader. A party cannot
opportunity on the part of the opposing party subsequently take a position contrary of or
for cross-examination(People vs. Singco, G.R. No. inconsistent with what was pleaded
188130, July 26, 2010). (Constantino vs. Heirs of Costantino, Jr., G.R.
No. 181508, October 2, 2013).
Extrajudicial Admission and Judicial  The extrajudicial admission or confession of
Admission, Distinguished a co-conspirator out of court is different
from the testimony given by a co-accused
Extrajudicial Judicial during trial. The first is admissible against
Admission Admission the declarant alone, but the second is
Made outside of the Made in the course of the perfectly admissible against his co-accused‘
proceedings in the same proceedings in the same who had the right and opportunity to cross-
case. case. examine the declarant (People of the
Must be offered in Need not be offered in Philippines vs. Flores, G.R. No. 71980, March 18,
evidence in order to be evidence since they 1991).
considered by the court. already form part of the
records. Party Admission and Declaration Against
May be given in evidence Not only is it evidence
Interest, Distinguished
against the admitter. against the admitter but
is binding upon him.
May be contradicted by May not be contradicted Party Declaration Against
the admitter. by the admitter except Admission Interest
upon showing that the Made by party. Made by a non-party, i.e.
admission was made the declarant.
through palpable mistake Need not be against the Must be against the
or that the imputed admitter‘s interest. declarant‘s interest.
admission was not, in Not hearsay and thus Hearsay but admissible
fact, made. admissible. as an exception to the
(Riguera) hearsay rule.
No requirement that the The declarant must be
 The admission having been made in a admitter is dead or dead or unable to testify.
unable to testify.
stipulation of facts at pre-trial by the parties,
Admissible only against Admissible against the
it must be treated as a judicial admission.
the admitter. declarant and third
Under Section, 4 Rule 129 of the Rules of persons.
Court, a judicial admission requires no proof (Riguera)
(SCC Chemicals Corporation vs. Court of Appeals,
G.R. No. 128538, February 28, 2001).
Offer of Compromise
 A party who judicially admits a fact cannot Civil Cases Criminal Cases
later challenge the fact as judicial General Rule: General Rule:
admissions are a waiver of proof; The following are An offer of compromise by
production of evidence is dispensed with. A neither admissions of the accused may be
judicial admission also removes an guilt nor admissible in received in evidence as an
admitted fact from the field of controversy. evidence: (PESO) implied admission of guilt.
Consequently, an admission made in the 1.Offer of
pleadings cannot be controverted by the compromise;
2.Evidence of Exceptions:
party making such admission and are
conduct; (PAWUK-AQu)
conclusive as to such party, and all proofs 3.Statements made
to the contrary or inconsistent therewith in compromise 1. Those involving Quasi-
should be ignored, whether objection is negotiations; and offenses;
interposed by the party or not. The 4. Offer to pay or the 2. Those Allowed by law
allegations, statements or admissions Payment of to be compromised
contained in a pleading are conclusive as medical, hospital (i.e. Tax Cases);

550 Center for Legal Education and Research

 Purple Notes
Remedial Law
or other expenses 3. Plea of guilty later proposed compromise (People vs. Erguiza, G.R. No.
occasioned by the Withdrawn; 171348, November 26, 2008).
injury. 4. As Unaccepted offer of
a plea of guilty to a Good Samaritan Rule
Exceptions: lesser offense;
(DA-PNP) 5. An offer or Payment of
An offer to pay or the payment of medical,
a) When the evidence medical, hospital or
is otherwise other expenses hospital or other expenses occasioned by an
Discoverable; or occasioned by an injury is not admissible in evidence as proof of
b) When the evidence injury; and civil or criminal liability for the injury (Rule 130,
is offered for 6. Those covered by the Sec. 28, as amended).
Another purpose, KatarungangPambaran
such as: gay Law. Rationale
i.Proving bias or
prejudice of a The reason for this Rule is to promote and
witness; encourage humanitarian acts or charitable
ii. Negativing a
responses rather than discourage or penalize
contention of
undue delay; or them. Otherwise, someone who may just want
iii. Proving an to help might hold back for fear that doing so
effort to will be taken as a sign of guilt (Regalado).
obstruct a
criminal Unaccepted Offer
investigation of
prosecution. An offer in writing to pay a particular sum of
(Rule 130, Sec. 28, as amended) money or to deliver a written instrument or
specific personal property, if rejected without
Reason Compromise is Allowed in Civil
valid cause, is equivalent to the actual
Cases: It is the policy of the law to favor the
production and tender of the money,
settlement of disputes, to foster compromises
instrument, or property (Rule 130, Sec. 26).
and to promote peace (Genato vs. Silapan, Adm.
Case. No. 4078, July 14, 2003).
8.E.4.b. Res Inter Alios Acta Rule
If a party denies the existence of a debt but
―Res inter alios acta alterinocere non
offers to pay the same for the purpose of buying
debet‖
peace and avoiding litigation, the offer of
―Things done between strangers ought not to
settlement is inadmissible. If in the course
injure those who are not parties to them.‖
thereof, the party making the offer admits the
existence of an indebtedness combined with a
There are two (2) branches of the rule of res
proposal to settle the claim amicably, then, the
inter alios acta, namely:
admission is admissible to prove such
indebtedness (Tan vs. Rodil Enterprises, G.R. No.
168071, December 18, 2006).
1. Admission by Third Party – The rule that
the rights of a party cannot be prejudiced
Note: An offer of compromise that may be by an act, declaration, or omission or
considered an implied admission need NOT be another (Rule 130, Sec. 29, as amended); and
made by the accused himself, it may be made
by his lawyer or relatives, provided it is made 2. Previous Conduct as Evidence – The
with the consent of the accused or with his rule that evidence that one did or did not
knowledge and he does not stop it. do a certain thing at one time is not
admissible to prove that he or she did or
For a compromise to amount to an implied did not do the same or a similar thing at
admission of guilt, the accused should have another time (Rule 130, Sec. 35, as amended).
been present or at least authorized the

Bar Operations C ommissions 551

 Purple Notes
Remedial Law
8.E.4.c. Admission by a Third Party
General Rule:
The res inter alios acta rule ordains that the
rights of a party cannot be prejudiced by an act,
declaration, or omission of another. An extra-
judicial confession is binding only upon the
confessant and is not admissible against his co-
accused.
The reason for the rule is that, on a principle of
good faith and mutual convenience, a man‘s
own acts are binding upon himself, and are
evidence against him. So are his conduct and
declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust, that a
man should be bound by the acts of mere
unauthorized strangers; and if a party ought not
to be bound by the acts of strangers, neither
ought their acts oo conduct be used as evidence
against him (People vs. Raquel, G.R. No. 119005
December 2, 1996, as cited in People vs. Cui, G.R.
No. 121982, September 10, 1999).
The res inter alios acta rule refers only to
extrajudicial declarations or admissions and not
to testimony given on the witness postand
where the party adversely affected has the
opportunity to cross-examine the declarant
(People vs. Comiling, G.R. No. 140405, March 4,
2004).
Exceptions: (CoCo-JAP)
1. Admission by a Co-partner (Rule 130, sec. 30,
as amended);
2. Admission by an Agent (Rule 130, sec. 30, as
amended);
3. Admission by a Joint owner, joint debtor, or
other person jointly interested with the party
(Rule 130, sec. 30, as amended);
4. Admission by a Co-conspirator (Rule 130, Sec.
31, as amended); and
5. Admission by Privies (Rule 130, Sec. 32, as
amended).
Note: These exceptions are collectively
classified as ―vicarious admissions‖.
A vicarious admission may be defined as an
assertion made by some person whose words or
552 Center for Legal Education and Research
acts are treated through the operation of
substantive law as those of the litigant (Witkin).
The basis for admitting the above admissions is
that the person making the statements is under
the same circumstances as the person against
whom it is offered. Such circumstances give him
substantially the same interest and the same
motive to make a statement about certain
matters (Wigmore).
8.E.4.d. Admission by a Co-Partner or
Agent
The act or declaration of a partner or agent
authorized by the party to make a statement
concerning the subject, or within the scope of
his or her authority and during the existence of
the partnership or agency, may be given in
evidence against such party after the
partnership or agency is shown by evidence
other than such act or declaration (Rule 130, Sec.
30, as amended).
Requisites: (SDE)
1. The acts or declaration were made During
the existence of partnership or agency;
2. That the partnership or agency be previously
proven by Evidence other than the admission
itself; and,
3. The acts or declaration refers to matters
within the Scope of his authority, or matters
on which he was authorized by the party to
make a statement
It is well established that the statements and
admissions of an agent are properly admissible
in evidence against the principal if they qualify
as vicarious admissions (Wigmore).
The same rule applies to the act or declaration
of a joint owner, joint debtor, or other person
jointly interested with the party (Rule 130, Sec.
30, as amended)
8.E.4.e. Admission by a Conspirator
The act or declaration of a conspirator in
furtherance of the conspiracy and during its
existence, may be given in evidence against the
 Purple Notes
co-conspirator after the conspiracy is shown by
evidence other than such act or declaration (Rule
130, Sec. 31, as amended).
 The general rule is that extra-judicial
declarations of a co-conspirator made
before the formation of the conspiracy or
after the accomplishment of its object are
inadmissible in evidence as against the
other co-conspirators, on the ground that
the accused in a criminal case has the
constitutional right to be confronted with
the witnesses against him and to cross-
examine them (People of the Philippines vs.
Cui, G.R. No. 121982, September 10, 1999).
Requisites: (ECW)
1. The conspiracy must first be proved by
Evidence other than the admission itself;
2. The admission relates to the Common
objects; and
3. The admission must have been made While
the declarant was engaged in carrying out
the conspiracy (People vs. Cui, G.R. No. 121982,
September 10, 1999).
A conspiracy exists when two or more persons
come to an agreement concerning the
commission of a felony and decide to commit it
(Art. 8, RPC).
The exception provided under Sec. [31], Rule
130 of the Rules of Court to the rule allowing
the admission of a conspirator requires the prior
establishment of the conspiracy by evidence
other than the confession. Mere association with
the principals by direct participation, without
more, does not suffice. Relationship, association
and companionship do not prove conspiracy
(Salapuddin v. Court of Appeals, G.R. No. 184681,
February 25, 2013).
In order that a declaration of one party to a
conspiracy or common enterprise may be
received against another, it is necessary that
such declaration should relate to the common
object and be made while declarant is engaged
in carrying it out. Statements concerning past
transactions are not within the usual scope of
the agency conferred by the unity of purpose,
and hence a declaration by a conspirator, made
Remedial Law
after the common purpose has been
accomplished or the common enterprise
abandoned, is incompetent against his
associates (ANNOTATION: The InterAlios Acta Rule
Revisited, 331 SCRA 562, May 09, 2000).
The extra-judicial statements of an accused
implicating a co-accused may not be utilized
against the latter, unless these are repeated in
open court. If the accused never had the
opportunity to cross-examine his co-accused on
the extra-judicial statements, it is elementary
that the same are hearsay as against said
accused. That is exactly the situation, and the
disadvantaged plight of appellants, in the case
at bar (People vs. Cui, G.R. No. 121982, September
10, 1999).
The rule that the statement of a conspirator
relating to the conspiracy is not admissible in
evidence unless the conspiracy is first shown by
other independent evidence, applies only to an
admission in an extrajudicial confession or
declaration. It does not apply to a testimony
given directly in court where the defendants
have the opportunity to cross-examine the
declarant. Provided it is sincere in itself, given
unhesitatingly and in a straightforward manner,
and full of details which by their nature could
not have been the result of deliberate
afterthought, the testimony of a co-conspirator,
even if uncorroborated, is sufficient (People of the
Philippines vs. Flores, G.R. No. 71980, March 18,
1991).
8.E.4.f. Admission by privies
Where one derives title to property from
another, the latter‘s act, declaration, or
omission, in relation to the property, is evidence
against the former if done while the latter was
holding the title (Rule 130, Sec. 32, as amended).
Privies are those who have mutual or successive
relationship to the same right of property or
subject matter.
 By the term "privies" is meant those
between whom an action is deemed
binding although they are not literally
parties to the said action. Privity in estate
Bar Operations C ommissions 553
 Purple Notes
Remedial Law
denotes the privity between assignor and
assignee, donor and donee, grantor and
grantee, joint tenant for life and
remainderman or reversioner and their
respective assignees, vendor by deed of
warranty and a remote vendee or assignee.
A privy in estate is one, it has been said,
who derives his title to the property in
question by purchase; one who takes by
conveyance(Constantino vs. Heirs of
Costantino, Jr., G.R. No. 181508, October 2,
2013).
Kinds of Privies:
Those arising from
a) Contract;
b) Law – e.g. Succession; or
c) Blood – e.g. Father and son
Requisites: (ADO-HI )
1. Act, Declaration, or Omission is made by a
predecessor-in-interest;
2. Act, declaration, or omission is made while
Holding the title in relation to the property;
and,
3. Act, declaration, or omission must be In
relation to the property.
Exceptions:
a) Where the declarations are made in the
presence of the transferee and he acquiesce
in the statement or asserts no right where he
ought to speak;
b) Where there has been prima facie case of
fraud established, as where the possession of
the thing after the transfer remains with the
seller or transferor; or
c) Where the evidence establishes a continuing
conspiracy to defraud.
8.E.4.g. Admission by silence
An act or declaration made in the presence and
within the hearing or observation of a party who
does or says nothing when the act or
declaration is such as naturally to call for action
or comment if not true, and when proper and
554 Center for Legal Education and Research
possible for him or her to do so, may be given in
evidence against him or her (Rule 130, Sec. 33, as
amended).
Basis is the Latin maxim is ―Qui tacet
consentireveditur‖, meaning ―He who is silent
appears to consent.‖
The natural instinct of man impels him to resist
an unfounded claim and defend himself. It is
against human nature to just remain reticent
and say nothing in the face of false accusations
(People v. Castañeda, G.R. No. 208290, Dec. 11,
2013).
Requisites: (OO-MaKEU)
1. The party must have heard or Observed the
act or declaration of the other person;
2. He must have had the Opportunity to deny
it;
3. He must have Understood the act or
declaration;
4. He must have an Interest to object as he
would naturally have done if the act or
declaration was not true;
5. The facts are within his Knowledge; and
6. The fact admitted or the inference to be
drawn from his silence is Material to the
issue (Pamplona vs. Cueto, G.R. No. 204735,
February 19, 2018).
 Silence during custodial investigation is not
admission by silence as he has the right to
remain silent during that stage (People v.
Guillen, G.R. No. 191756, Nov. 25, 2013).
Doctrine of Adoptive Admission
An adoptive admission is a party‘s reaction to a
statement or action by another person when it is
reasonable to treat the party‘s reaction as an
admission of something stated or implied by the
other person. Where it appears that a party
clearly and unambiguously assented to or
adopted the statements of another, evidence of
those statements is admissible against him
(Republic vs. Kenrick Development Corporation, G.R.
No. 149576, August 8, 2006).
 Purple Notes
Adoptive admission may occur when a
party:
a) expressly agrees to or concurs in an oral
statement made by another;
b) hears a statement and later on essentially
repeats it;
c) utters an acceptance or builds upon the
assertion of another;
d) replies by way of rebuttal to some specific
points raised by another but ignores further
points which he or she has heard the other
make; or
e) reads and signs a written statement made by
another (Republic vs. Kenrick Development
Corporation, G.R. No. 149576, August 8, 2006).
8.E.4.h. Confessions
Confession is a categorical acknowledgement of
guilt made by an accused of the offense
charged or any offense necessarily included
therein (Rule 130, Sec. 34).
 The declaration of an accused
acknowledging his guilt of the offense
charged, or of any offense necessarily
included therein, may be given in evidence
against him.
 A confession is an acknowledgment in
express terms, by a party in a criminal
case, of his guilt of the crime charged,
while an admission is a statement by the
accused, direct or implied, of facts
pertinent to the issue, and tending, in
connection with proof of other facts, to
prove his guilt. In other words, an
admission is something less than a
confession, and is but an acknowledgment
of some fact or circumstance which in itself
is insufficient to authorize a conviction, and
which tends only to establish the ultimate
fact of guilt (People of the Philippines vs.
Lorenzo, G.R. No. 110107, January 26, 1995
citing Wharton).
The rationale for the admissibility of a
confession is that if it is made freely and
voluntarily, a confession constitutes evidence of
a high order since it is supported by the strong
Remedial Law
presumption that no sane person or one of
normal mind will deliberately and knowingly
confess himself to be the perpetrator of a
crime, unless prompted by truth and
conscience (People vs. Satorre, G.R. No. 133858,
August 12, 2003).
Note: Confessions are presumed to be
voluntary and the onus is on the defense to
prove that it was involuntary for having been
obtained by violence, intimidation, threat,
promise of reward or leniency (People vs. Garcia,
G.R. No. L-8298, May 29, 1957).
Requisites for Admissibility of
Confessions:
1. Express and categorical acknowledgment of
guilt;
2. Facts admitted are constitutive of the
criminal offense;
3. Voluntarily given;
4. Intelligently made; and,
5. There is no violation of Art. III, Sec. 3 of
the Constitution (Rights of the Accused)
(People vs. Racquel, G.R. No. 119005, December
2, 1996).
The basic test for the validity of a confession is
was it voluntarily and freely made. The term
voluntary means that the accused speaks of his
free will and accord, without inducement of any
kind, and with a full and complete knowledge
of the nature and consequences of the
confession, and when the speaking is so free
from influences affecting the will of the
accused, at the time the confession was made,
that it renders it admissible in evidence against
him (People vs. Satorre, G.R. No. 133858, August
12, 2003).
 A confession is not required to be in any
particular form. It may be oral or written,
formal or informal in character. It may be
recorded on video tape, sound motion
pictures, or tape (Id.).
Kinds of Confession:
Judicial confession is one made before a
court in which the case is pending and in the
course of legal proceedings therein, and by
Bar Operations C ommissions 555
 Purple Notes
Remedial Law
itself, can sustain a conviction even in capital
offenses.
Extrajudicial confession is one made in any
other place or occasion.
General Rule: An extrajudicial confession
cannot sustain a conviction.
Exception: When it is corroborated by
evidence of the corpus delicti (Rule 133, Sec. 3).
 Note that what must be corroborated is the
extrajudicial confession and not the
testimony of the person to whom the
confession is made, and the corroborative
evidence required is not the testimony of
another person who heard the confession
but the evidence of corpus delicti. Except
when expressly required by law, the
testimony of a single person, if credible
and positive and if it satisfies the court as
to the guilt of the accused beyond
reasonable doubt, is sufficient to convict.
In determining the value and credibility of
evidence, witnesses are to be weighed, not
numbered (People of the Philippines vs.
Lorenzo, G.R. No. 110107, January 26, 1995).
Requisites for Admissibility of
Extrajudicial Confessions: (RI-VICE)
1. Express and categorical acknowledgment of
guilt;
2. Facts admitted are Constitutive of the
criminal offense;
3. Voluntarily given;
4. Intelligently made;
5. Any extrajudicial confession made by a
person arrested, detained or under
custodial investigation shall be in writing
and signed by such person In the presence
of his counsel or in the latter's absence,
upon a valid waiver [R.A. No. 7438, Sec.
2(d)];
6. There is no violation of Art. III, Sec. 12 of
the Constitution (Rights of the accused)
(People vs. Racquel, G.R. No. 119005, December
2, 1996).
556 Center for Legal Education and Research
Note: Even if the confession may appear to
have been given voluntarily since the
confessant did not file charges against his
alleged intimidators for maltreatment, the
failure to properly inform a suspect of his rights
during a custodial investigation renders the
confession valueless and inadmissible (People
vs. Sayaboc, G.R. No. 147201, January 15, 2004).
 In the present case, while it is undisputed
that petitioner gave an uncounselled
written statement regarding an anomaly
discovered in the branch he managed, the
following are clear: (1) the questioning was
not initiated by a law enforcement
authority but merely by an internal affairs
manager of the bank; and, (2) petitioner
was neither arrested nor restrained of his
liberty in any significant manner during the
questioning. Clearly, petitioner cannot be
said to be under custodial investigation and
to have been deprived of the constitutional
prerogative during the taking of his written
statement (Tenenggee vs. People, G.R. No.
179448, June 26, 2013).
Corpus delicti refers to a particular crime and
signifies that the specific offense had been
actually committed by someone.
General Rule: An extrajudicial confession is
admissible against the confessor only. It is
incompetent evidence against his co-accused
for being hearsay and because of the res inter
alios acta rule.
Exceptions: When admissible against the co-
defendants
1. If the co-defendants impliedly acquiesced in
or adopted said confession;
2. Interlocking confessions – if the accused
persons voluntarily and independently
executed identical confession without
collusion and corroborated by other
evidence;
3. Where the accused admitted the facts
stated by the confessant after being
apprised of such confession;
4. If they are charged as co-conspirators of
the crime which was confessed by one of
 Purple Notes
Remedial Law
the accused and said confession is used Lorielyn, assuming them for the moment to
only as corroborating evidence; be true, are petty and inconsequential.
5. Where the confession is used as They are not as serious as charging one's
circumstantial evidence to show the own father of the sordid crime of rape,
probability of participation by the with all of its serious repercussions (People
conspirator; of the Philippines vs. Nardo, G.R. No. 133888,
6. When the confessant testified for his co- March 1, 2001).
defendant; and
7. Where the co-conspirator‘s extrajudicial  Evidence is not admissible when it shows,
confession is corroborated by other or tends to show, that the accused in a
evidence of record (ANNOTATION: The Inter criminal case has committed a crime
Alios Acta Rule Revisited, 331 SCRA 562, May independent from the offense for which he
09, 2000). is on trial. A man may be a notorious
criminal, and may have committed many
Note: Any confession or admission obtained in crimes, and still be innocent of the crime
violation of Sections 12 and 17, Article III of charged on trial (People v. Pineda, G.R. No.
the 1987 Constitution shall be inadmissible as 141644, May 27, 2004).
evidence against the confessor or admitter.
Rape Shield
Illegal confessions and admissions are
inadmissible against the confessant or the In prosecutions for rape, evidence of
admitter but are admissible against the persons complainant's past sexual conduct, opinion
who violated the constitutional prohibition in thereof or of his/her reputation shall not be
obtaining such illegal confessions on admitted unless, and only to the extent that
admissions. the court finds, that such evidence is material
and relevant to the case (R.A. No. 8505, Sec. 6).
8.E.4.i. Similar Acts as Evidence
Sexual Abuse Shield Rule in Examination
General Rule: Evidence that one did or did of a Child Witness
not do a certain thing at one time is not
admissible to prove that he or she did or did General Rule: The following evidence is not
not do the same or similar thing at another admissible in any criminal proceeding involving
time. alleged child sexual abuse:
Exception: 1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
It may be received to prove a specific: (I- and
SKIP-SCHUL) 2. Evidence offered to prove the sexual
predisposition of the alleged victim [A.M.
1. Intent; NO. 004-07-SC, Sec. 30(a)].
2. Knowledge;
3. Identity; Exception: Evidence of specific instances of
4. Plan; sexual behavior by the alleged victim to prove
5. System; that a person other than the accused was the
6. Scheme; source of semen, injury, or other physical
7. Habit evidence shall be admissible [A.M. NO. 004-07-
8. Custom; or SC, Sec. 30(b)].
9. Usage; and
10. The Like (Rule 130, Sec. 35, as amended). 8.E.4.j. Admissibility of Offers of
Compromise
 While lying may constitute a habit, we
believe that the falsehoods committed by Offer of Compromise

Bar Operations C ommissions 557

 Purple Notes
Remedial Law
Civil Cases Criminal Cases proposal to settle the claim amicably, then, the
General Rule: General Rule: admission is admissible to prove such
The following are An offer of compromise by indebtedness (Tan vs. Rodil Enterprises, G.R. No.
neither admissions of the accused may be 168071, December 18, 2006).
guilt nor admissible in received in evidence as an
evidence: (PESO) implied admission of guilt.
Note: An offer of compromise that may be
1.Offer of
compromise;
considered an implied admission need NOT be
2.Evidence of Exceptions: made by the accused himself, it may be made
conduct; (PAWUK-AQu) by his lawyer or relatives, provided it is made
3.Statements made with the consent of the accused or with his
in compromise 1. Those involving Quasi- knowledge and he does not stop it.
negotiations; and offenses;
4. Offer to pay or the 2. Those Allowed by law For a compromise to amount to an implied
Payment of to be compromised admission of guilt, the accused should have
medical, hospital (i.e. Tax Cases);
been present or at least authorized the
or other expenses 3. Plea of guilty later
occasioned by the Withdrawn;
proposed compromise (People vs. Erguiza, G.R. No.
injury. 4. As Unaccepted offer of
171348, November 26, 2008).
a plea of guilty to a
Exceptions: lesser offense; Good Samaritan Rule
(DA-PNP) 5. An offer or Payment of
a) When the evidence medical, hospital or An offer to pay or the payment of medical,
is otherwise other expenses hospital or other expenses occasioned by an
Discoverable; or occasioned by an injury is not admissible in evidence as proof of
b) When the evidence injury; and civil or criminal liability for the injury (Rule 130,
is offered for 6. Those covered by the Sec. 28, as amended).
Another purpose, KatarungangPambaran
such as: gay Law.
i.Proving bias or
Rationale
prejudice of a
witness; The reason for this Rule is to promote and
ii. Negativing a encourage humanitarian acts or charitable
contention of responses rather than discourage or penalize
undue delay; or them. Otherwise, someone who may just want
iii. Proving an to help might hold back for fear that doing so
effort to will be taken as a sign of guilt (Regalado).
obstruct a
criminal
investigation of
Unaccepted Offer
prosecution.
(Rule 130, Sec. 28, as amended) An offer in writing to pay a particular sum of
money or to deliver a written instrument or
Reason Compromise is Allowed in Civil specific personal property, if rejected without
Cases: It is the policy of the law to favor the valid cause, is equivalent to the actual
settlement of disputes, to foster compromises production and tender of the money,
and to promote peace (Genato vs. Silapan, Adm. instrument, or property (Rule 130, Sec. 26).
Case. No. 4078, July 14, 2003).
8.E.5. HEARSAY
If a party denies the existence of a debt but
offers to pay the same for the purpose of buying 8.E.5.a. Meaning of Hearsay
peace and avoiding litigation, the offer of
settlement is inadmissible. If in the course Hearsay is a statement other than one made
thereof, the party making the offer admits the by the declarant while testifying at a trial or
existence of an indebtedness combined with a

558 Center for Legal Education and Research

 Purple Notes
hearing, offered to prove the truth of the facts
asserted therein.
A statement is (1) an oral or written assertion
or (2) a non-verbal conduct of a person, if it is
intended by him or her as an assertion.
A statement is not a hearsay if the declarant
1. Testifies at the trial or hearing, and
2. He/she is subject to cross-examination
concerning a statement, and the statement
is:
a) inconsistent with the declarant‘s
testimony, and was given under oath
subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in
deposition;
b) consistent with the declarant‘s testimony
and is offered to rebut an express or
implied charge against the declarant of
recent fabrication or improper influence or
motive; or
c) one of identification of a person made
after perceiving him or her (Rule 130, Sec.
37, as amended). (n)
A witness can testify only to those facts which
he knows of his personal knowledge; that is,
which are derived from his own perception (Rule
130, Sec. 22, as amended). Pursuant to this rule, a
witness‘ testimony as to what he merely learned
from others, either through being told or having
heard or read of the same, may not be received
as proof of the truth of what he has so learned.
Similarly, writings or documents may not be
admitted as evidence of the facts stated therein
where the persons who wrote or made them are
not presented to testify thereon. Such kinds of
evidence are considered hearsay (ANNOTATION:
Hearsay Evidence, 24 SCRA 613, August 14, 1968).
Classification of Out-of-Court Statements:
1. Hearsay – Those which are considered as
hearsay and therefore inadmissible. This
occurs when the purpose for introducing the
out-of-court statement is to prove the truth
of the facts asserted therein.
Remedial Law
2. Non-Hearsay – The Doctrine of
Independently Relevant Statements
Regardless of the truth or falsity of a
statement, when what is relevant is the fact
that such statement has been made, the
hearsay rule does not apply and the
statement may be shown. As a matter of
fact, evidence as to the making of the
statement is not secondary but primary, for
the statement itself may constitute a fact in
issue or is circumstantially relevant as to the
existence of such a fact. This is known as the
―doctrine of independently relevant
statements‖ (Espineli vs. People, G.R.
No.179535, June 9, 2014).
3. Exceptions to the Hearsay Rule – Those
which are classified as hearsay but are
deemed admissible by the Rules for certain
reasons.
 By hearsay evidence is meant that kind of
evidence which does not derive its value
solely from the credence to be attributed to
the witness herself but rests solely in part on
the veracity and competence of some
persons from whom the witness has received
the information. It signifies all evidence
which is not founded upon the personal
knowledge of the witness from whom it is
elicited, and which, consequently, is not
subject to cross-examination. The basis for
the exclusion appears to lie in the fact that
such testimony is not subject to the test
which can ordinarily be applied for the
ascertainment of truth of testimony, since
the declarant is not present and available for
cross-examination. In criminal cases, the
admission of hearsay evidence would be a
violation of the constitutional provision while
the accused shall enjoy the right to confront
and cross-examine the witness testifying
against him (People vs. Ulit, G.R. Nos. 131799-
801, February 23, 2004).
General Rule: When the purpose of
introducing the out-of-court statement is to
prove the truth of the facts asserted, therein,
such statement shall be inadmissible as hearsay
evidence.
Bar Operations C ommissions 559
 Purple Notes
Remedial Law
Exceptions:
1. Those which are classified as hearsay but are
deemed admissible by the Rules for certain
reasons, namely:
a. Dying declaration (Rule 130, Sec. 38);
b. Statement of decedent or person of
unsound mind (Rule 130, Sec. 39);
c. Declaration against interest (Rule 130, Sec.
40);
d. Act or declaration about pedigree (Rule
130, Sec. 41);
e. Family reputation or tradition regarding
pedigree (Rule 130, Sec. 42);
f. Common reputation (Rule 130, Sec. 43);
g. Part of res gestae (Rule 130, Sec. 44);
h. Records of regularly conducted business
activity (Rule 130, Sec. 45);
i. Entries in official records (Rule 130, Sec.
46);
j. Commercial lists and the like (Rule 130,
Sec. 47);
k. Learned treatises (Rule 130, Sec. 46);
l. Testimony or deposition at a former
proceeding (Rule 130, Sec. 49);and
m. Residual exception (Rule 130, Sec. 50);and
2. Failure to object to the introduction of
hearsay evidence.
Note: As a rule, hearsay evidence is
excluded and carries no probative value.
However, the rule does admit of an
exception. Where a party failed to object to
hearsay evidence, then the same is
admissible. The rationale for this exception is
to be found in the right of a litigant to cross-
examine. It is settled that it is the
opportunity to cross-examine which negates
the claim that the matters testified to by a
witness are hearsay (SCC Chemicals
Corporation vs. Court of Appeals, G.R. No.
128538, February 28, 2001).
 Any evidence, whether oral or documentary,
is hearsay if its probative value is not based
on the personal knowledge of the witness
but on the knowledge of another person who
is not on the witness stand. Hearsay
evidence, whether objected to or not, has no
560 Center for Legal Education and Research
probative value unless the proponent can
show that the evidence falls within the
exceptions to the hearsay evidence rule
(Benguet Exploration, Inc. vs. Court of Appeals,
G.R. No. 117434, February 9, 2001).
 It renders inadmissible as evidence out-of-
court statements made by persons who are
not presented as witnesses but are offered
as proof of the matters stated. This rule
proceeds from the basic rationale of fairness,
as the party against whom it is presented is
unable to cross-examine the person making
the statement. (DST Movers Corporation vs.
People‘s General insurance Corporation, G.R. No.
198627, January 13, 2016 – case penned by J.
Leonen)
8.E.5.b. Reasons for Excluding Hearsay
Evidence: (COD)
1. The lack of opportunity on the part of the
party against which it is offered to Cross-
examine the declarant, that is, the person
who made the statement.
2. The statement or declaration is not made
under Oath.
3. The court does not have the opportunity to
observe the Demeanor of the declarant
(Estrada vs. Desierto, G.R. Nos. 146710-15, April
3, 2001).
Affidavit as Hearsay Evidence
General Rule: An affidavit is merely hearsay
evidence where its affiant/maker did not take
the witness stand (Dantis vs. Maghinang, Jr., G.R.
No. 191696, April 10, 2013).
The reason for this rule is that they are not
generally prepared by the affiant, but by
another one who uses his or her own language
in writing the affiant's statements, parts of
which may thus be either omitted or
misunderstood by the one writing them.
Moreover, the adverse party is deprived of the
opportunity to cross-examine the affiants. For
this reason, affidavits are generally rejected for
being hearsay, unless the affiants themselves
are placed on the witness stand to testify
thereon (Republic vs. Gimenez, G.R. No. 174673,
January 11, 2016).
 Purple Notes
 Appellant Santos now complains that the
affidavit of Ronaldo Guerrero was hearsay
evidence, considering that the prosecution
did not present Ronaldo Guerrero as a
witness during the trial. Appellant had
waived the hearsay character of this
evidence by failure seasonably to object to
the admission of the affidavit; it is too late
in that day to raise the hearsay rule in the
appellant's memorandum after prosecution
and defense had presented their respective
cases and had made their respective offers
of evidence (People of the Philippines vs.
Santos, G.R. Nos. 100225-26, May 11, 1993).
Exception: The rule that an affidavit is
considered hearsay is liberally applied in labor
cases.
It is not necessary for the affiants to appear and
testify and be cross-examined by counsel for the
adverse party. To require otherwise would be to
negate the rationale and purpose of the
summary nature of the proceedings mandated
by the Rules and to make mandatory the
application of the technical rules of evidence
(Lepanto Consolidated Mining Company vs. Dumapis,
G.R. No. 163210, August 13, 2008).
Double Hearsay
The testimony of a person with respect to what
was told him by one who was not an eyewitness
to the crime but who obtained knowledge
thereof only from the alleged victim constitutes
―double hearsay‖ (People vs. Manhuyod, Jr., G.R.
124676, May 20, 1998).
8.E.5.c. Exceptions to the Hearsay Rule
1. Dying declaration (Rule 130, Sec. 38);
2. Statement of decedent or person of unsound
mind (Rule 130, Sec. 39);
3. Declaration against interest (Rule 130, Sec.
40);
4. Act or declaration about pedigree (Rule 130,
Sec. 41);
5. Family reputation or tradition regarding
pedigree (Rule 130, Sec. 42);
6. Common reputation (Rule 130, Sec. 43);
7. Part of res gestae (Rule 130, Sec. 44);
Remedial Law
8. Records of regularly conducted business
activity (Rule 130, Sec. 45);
9. Entries in official records (Rule 130, Sec. 46);
10. Commercial lists and the like (Rule 130, Sec.
47);
11. Learned treatises (Rule 130, Sec. 46);
12. Testimony or deposition at a former
proceeding (Rule 130, Sec. 49);and
13. Residual exception (Rule 130, Sec. 50).
 Hearsay evidence is admissible in
determining probable cause in preliminary
investigations because such investigation is
merely preliminary, and does not finally
adjudicate rights and obligations of parties
(PCGG v. Gutierrez, G.R. No. 194159, Oct. 21,
2015, reiterating Estrada v. Ombudsman, G.R.
No. 212140-41, January 21, 2015).
I. Dying Declaration
Sometimes referred to as ante-mortem
statement, it is a statement made under the
consciousness of an impending death on the
cause and surrounding circumstances of the
declarant‘s death (Rule 130, Sec. 38, as amended).
When a person is at the point of death, every
motive for falsehood is silenced and the mind is
induced by the most powerful consideration to
speak the truth. Such a declaration, made in
extremis when the party is at the point of death
and the mind is induced by the most powerful
consideration to speak the truth, occasioned by
a situation so solemn and awful, is considered
by the law as creating an obligation equal to
that which is created by a positive oath
administered in a court of justice (ANNOTATION:
A Dying Declaration, 102 SCRA 236, January 27,
1981).
Requisites: (C4-HMP)
1. The declaration must concern the Cause and
surrounding circumstances of the declarant's
death;
2. At the time the declaration is made, the
declarant is under a Consciousness of an
impending death;
3. The declarant is Competent as a witness
4. The declaration is offered in a criminal case
for Homicide, Murder, or Parricide, in which
Bar Operations C ommissions 561
 Purple Notes
Remedial Law
the declarant is a victim (People vs. Santillan,
G.R. No. 227878, August 09, 2017); and
5. That the statement is Complete in itself
(People vs. De Joya, G.R. No. 75028, November 8,
1991).
 To be complete in itself does not mean that
the declaration must recite everything that
constituted the res gestae of the subject of
his statement, but that his statement of
any given fact should be a full expression
of all that he intended to say as conveying
his meaning in respect of such fact (People
vs. De Joya, G.R. No. 75028, November 8,
1991).
Note: If the declarant does not die, the
declaration would not be admissible under this
rule but considered as part of the res gestae.
Form
A dying declaration has no particular form. It
may be in writing or verbal, and under oath or
not. It may consist of acts of the declarant such
as nodding his head, pointing a finger at his
assailant, or pointing by way of answer to the
accused who was lying side by side with the
declarant in the hospital (ANNOTATION: Dying
Declaration, 203 SCRA 355, November 08, 1991).
II. Statement of Decedent or Person of
Unsound Mind
Note: This rule is commonly known as the
―Dead Man‘s Statute‖ or the ―Survivorship Rule‖.
The ―Dead Man's Statute‖ provides that if one
party to the alleged transaction is precluded
from testifying by death, insanity, or other
mental disabilities, the surviving party is not
entitled to the undue advantage of giving his
own uncontradicted and unexplained account of
the transaction (Garcia v. Vda. de Caparas, G.R. No.
180843, April 17, 2013).
Requisites: (PACB)
1. The witness is a Party or assignor of a party
to case or persons in whose behalf a case in
prosecuted;
2. The action is Against an executor or
administrator or other representative of a
562 Center for Legal Education and Research
deceased person or a person of unsound
mind;
3. The subject-matter of the action is a Claim or
demand against the estate of such deceased
person or against person of unsound mind;
and
4. His testimony refers to any matter of fact of
which occurred Before the death of such
deceased person or before such person
became of unsound mind (Sunga-Chan vs.
Chua, G.R. No. 143340, August 15, 2001).
General Rule:
Any out-of-court statement of the deceased or
the person of unsound mind is inadmissible as
hearsay.
Exception:
Any statement of the deceased or the person of
unsound mind may now be received in
evidence, provided that:
1. The statement was made upon the personal
knowledge of the deceased or the person of
unsound mind; and
2. It was made at a time when the matter had
been recently perceived by him or her, and
while his or her recollection was clear (Rule
130, Sec. 39, as amended). (n)
Exception to the Exception:
Such statement, however, is inadmissible if
made under circumstances indicating its lack of
trustworthiness (Rule 130, Sec. 39, as
amended).(n)
III. Declaration Against Interest
Requisites: (DAC-No)
1. The declarant is Dead or unable to testify;
2. The declaration relates to a fact Against the
interest of the declarant;
3. At the time he made said declaration the
declarant was aware that the same was
Contrary to his aforesaid interest; and
 Purple Notes
Remedial Law
4. The declarant had No motive to falsify and ADMISSION BY DECLARATION
believed such declaration to be true (People PRIVIES AGAINST INTEREST
vs. Bernal, G.R. No. 113685, June 19, 1997). One of the exceptions Exception to hearsay.
to res inter alios acta.
General Rule: A statement tending to expose
the declarant to criminal liability and offered to Evidence against the Evidence against even
exculpate the accused is not admissible. successor in interest of the declarant, his
the admitter. successor in interest,
Exception: When corroborating circumstances or 3rd persons.
clearly indicate the trustworthiness of the Admitter need not be Declarant is dead or
statement (Rule 130, Sec. 40).(n) dead or unable to unable to testify.
testify.
Rationale
Being an admission against interest, the Relates to title to Relates to any
documents are the best evidence which affords property. interest.
the greatest certainty of the facts in dispute.
The rationale for the rule is based on the Admission need not be Declaration must be
presumption that no man would declare against the admitter‘s against the interest of
anything against himself unless such declaration interest. the declarant.
was true. Thus, it is fair to presume that the
declaration corresponds with the truth, and it is IV. Act or Declaration About Pedigree
his fault if it does not (Rufina Patis Factory vs.
Alusitain, G.R. No. 146202, July 14, 2004).
The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of
 With the deletion of the phrase "pecuniary
another person related to him or her by birth,
or moral interest" from the present
adoption, or marriage, or, in the absence
provision, it is safe to assume that
thereof, with whose family he or she was so
"declaration against interest" has been
intimately associated as to be likely to have
expanded to include all kinds of interest,
accurate information concerning his or her
that is, pecuniary, proprietary, moral or
pedigree, may be received in evidence where it
even penal (People of the Philippines vs.
occurred before the controversy, and the
Bernal, G.R. No. 113685, June 19, 1997).
relationship between the two persons is shown
by evidence other than such act or declaration
(Rule 130, Sec. 41, as amended).
Declaration Against Party Admission
Requisites:
Interest
Made by a non-party, Made by a party. 1. The actor or declarant is dead or unable to
i.e., the declarant. testify;
Must be against the Need not be against 2. The act or declaration is made by a person
declarant‘s interest. the admitter‘s interest. related to the subject by birth, adoption, or
Hearsay but admissible Not hearsay and thus marriage or, in absence thereof, with whose
as an exception to the admissible. family the declarant was so intimately
hearsay rule. associated as to be likely to have accurate
The declarant must be No requirement that information concerning his/her pedigree;
dead or unable to the admitter is dead or 3. The relationship between the declarant/actor
testify. unable to testify. and the subject is shown by evidence other
Admissible against Admissible only than such act/declaration; and
declarant and third against the admitter. 4. The act/declaration was made ante litem
persons. motam or prior to the controversy (Tison vs.
(Riguera) CA, G.R. No. 121027, July 31, 1997).

Bar Operations C ommissions 563

 Purple Notes
Remedial Law
Pedigree is the state of the family as far as
regards the relationship of the different
members, their births, marriages and deaths;
this term is applied to persons or families, who
trace their origin or descent (Black‘s Law
Dictionary, 2nd Ed.).
Pedigree includes relationship, family genealogy,
birth, marriage, death, the dates when and the
places where these facts occurred, the names of
the relatives, and facts of family history
intimately connected with pedigree (Rule 130,
Sec. 41, as amended).
V. Family Reputation or Traditions
Regarding Pedigree
Requisites:
1. There is a controversy in respect to the
pedigree of any members of a family;
2. The reputation or tradition of the pedigree of
the person concerned existed ante litem
motam or previous to the controversy; and
3. The witness testifying to the reputation or
tradition regarding the pedigree of the
person must be a member of the family of
said person (People vs. Llanita, G.R. No. 134101,
September 5, 2001).
The reputation or tradition existing in a family
previous to the controversy, in 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 consanguinity or affinity, or adoption. Entries
in family bibles or other family books or charts,
engravings on rings, family portraits and the
like, may be received as evidence of pedigree
(Rule 130, Sec. 42, as amended).
It is evident that this provision may be divided
into two (2) parts:
1. The portion containing the first underscored
clause which pertains to testimonial
evidence, under which the documents in
question may not be admitted as the authors
thereof did not take the witness stand; and
2. The section containing the second
underscored phrase. What must then be
ascertained is whether the Exhibits, as
564 Center for Legal Education and Research
private documents, fall within the scope of
the clause ―and the like‖ as qualified by the
preceding phrase [e]ntries in family bibles or
other family books or charts, engravings on
rings [and] family portraits (Jison vs. Court of
Appeals, G.R. No. 124853, February 24, 1998).
The scope of the enumeration contained in the
second portion of this provision, in light of the
rule of ejusdem generis, is limited to objects
which are commonly known as "family
possessions," or those articles which represent,
in effect, a family's joint statement of its belief
as to the pedigree of a person. These have been
described as objects "openly exhibited and well
known to the family," or those "which, if
preserved in a family, may be regarded as
giving a family tradition." Other examples of
these objects which are regarded as reflective of
a family's reputation or tradition regarding
pedigree are inscriptions on tombstones,
monuments or coffin plates (Jison vs. Court of
Appeals, G.R. No. 124853, February 24, 1998).
 The testimony of the witness as to his age
as he had learned from his parents and
relatives is admissible although hearsay and
though he can have no personal knowledge
of the date of his birth as all the knowledge
he has of his age is acquired from what he
is told by his parents. His testimony in such
case is an assertion of family tradition
(People vs. Alegado, G.R. No. 93030-31, August
21, 1991).
ACT OR FAMILY REPUTATION
DECLARATION OR TRADITION
ABOUT PEDIGREE REGARDING PEDIGREE
Witness need not be Witness is a member of
a member of the the family.
family.
Testimony is about Testimony is about family
what declarant, dead reputation or tradition
or unable to testify, covering matters of
has said concerning pedigree.
the pedigree of the
declarant‘s family.
VI. Common Reputation
Common reputation existing previous to the
controversy, as to boundaries of or customs
affecting lands in the community and reputation
as to events of general history important to the
 Purple Notes
community, or respecting marriage or moral
character, may be given in evidence.
Monuments and inscriptions in public places may
be received as evidence of common reputation
(Rule 130, Sec. 43, as amended).
Common reputation refers to the prevailing
belief in the community as to the existence of
certain facts or aggregates of facts arrived at
from the people‘s observations, discussions, and
consensus. There is absent serious opposition,
adverse or contrary opinion. They are not just
rumors or unverified reports or say-so.
Note: The requirement of antiquity (―more than
30 years old‖) is removed. Instead, reliability is
ensured because the testimony represents the
consensus of the community.
Common Reputation May be Admitted to
Prove:
1. Matters relating to boundaries of lands in the
community;
2. Matters relating to customs affecting lands in
the community;
3. Matters relating to events of general history
important to the community;
4. Matters respecting marriage or moral
character and related facts; and,
5. Individual moral character.
Note: Common reputation cannot establish
pedigree.
Evidence of Negative Good Repute
Where the foundation proof shows that the
witness was in such position that he would have
heard reports derogatory to one‘s character, the
reputation testimony may be predicated on the
absence of reports of bad reputation or on the
fact that the witness had heard nothing against
the person.
VII. Res Gestae
Statements made by a person while a startling
occurrence is taking place or immediately prior
or subsequent thereto, under the stress of
excitement caused by the occurrence with
Remedial Law
respect to the circumstances thereof, may be
given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act
material to the issue, and giving it a legal
significance, may be received as part of the res
gestae (Rule 130 Sec. 44, as amended).
Res gestae refers to statements made by the
participants or the victims of, or the spectators
to, a crime immediately before, during, or after
its commission. These statements are a
spontaneous reaction or utterance inspired by
the excitement of the occasion, without any
opportunity for the declarant to fabricate a false
statement (People vs. Calungsag, G.R. No. 208749,
November 26, 2014).
Test for Admissibility
1. Whether the act, declaration, or exclamation
is so intimately interwoven or connected with
the principal fact or event that it
characterizes as to be regarded as a part of
the transaction itself; and
2. Whether it clearly negatives any
premeditation or purpose to manufacture
testimony (People vs. Calungsag, G.R. No.
208749, November 26, 2014).
Spontaneity, How Determined:
1. The time that has lapsed between the
occurrence of the act or transaction and the
making of the statement;
2. The place where the statement is made;
3. The condition of the declarant when the
utterance is given;
4. The presence or absence of intervening
events between the occurrence and the
statement relative thereto; and
5. The nature and the circumstances of the
statement itself (Manulat vs. People, G.R. No.
190892, August 17, 2015).
Rationale
The basis of the ante is the well-founded belief
that statements made instinctively at the time of
Bar Operations C ommissions 565
 Purple Notes
Remedial Law
a specific transaction or event without the
opportunity for formulation of statements
favorable to one‘s own cause are likely to cast
important light upon the matter at issue. As to
such statements, the law creates a presumption
of their truthfulness (20 Am. Jr. 556).
b) Verbal Acts – Refers to the first sentence of
Rule 130, Sec. 44, as amended, viz:
Statements accompanying an equivocal act
material to the issue, and giving it a legal
significance.

Types of Res Gestae Requisites: (SMAL)

a) Spontaneous Statements – Refers to the 1. Act or occurrence characterized must be

first sentence of Rule 130, Sec. 44, as Equivocal;
amended, viz: 2. Such act must be Material to the issue;
3. Statements must Accompany the
Statements made by a person while a equivocal act; and
startling occurrence is taking place or 4. Statements give Legal significance to the
immediately prior or subsequent thereto equivocal act (Talidano vs. Falcon Maritime
under the stress of excitement caused by the and Allied Services, Inc., G.R. No. 172031, July
occurrence with respect to the circumstances 14, 2008).
thereof.
Reason for Admissibility
Requisites: (SBC)
The motive character, and object of an act,
1. The principal act, the res gestae, is a are frequently indicated by what was said by
Startling occurrence; the person engaged in the act. Such
2. The statements were made Before the statements are in the nature of verbal acts
declarant had time to contrive or devise a and are admissible in evidence with the
falsehood; and, remainder of the transaction which they
3. The statements must concern the illustrate (ANNOTATION: Res Gestae, 74 SCRA
occurrence in question and its 141, November 29, 1976).
immediately attending Circumstances
(People of the Philippines vs. Lobrigas, G.R.
No. 147649, December 17, 2002).
Reason for Admissibility Verbal Acts and Spontaneous Statements,
Distinguished
The reasons for the admissibility of
spontaneous statements are: (1) SPONTANEOUS
VERBAL ACTS
trustworthiness and (2) necessity. The STATEMENT
statements are trustworthy because they are The res gestae is the The res gestae is the
equivocal act. startling occurrence.
made instinctively, while the declarant‘s
Verbal act must be Statements may be made
mental powers for deliberation in concocting
contemporaneous with prior, while or
matters are controlled and stilled by the or must accompany the immediately after the
shocking influence of a startling occurrence, equivocal act. startling occurrence.
so that all utterances at the time are the
reflex product of immediate sensual Statements must explain Statements need not
impressions, unaided by retrospective mental the equivocal act and explain the principal fact.
action. It is due to necessity because said give it a legal
natural and spontaneous utterances are significance.
more convincing than the testimony of the
same person in the stand (ANNOTATION: Res Res Gestae and Dying Declarations,
Gestae, 74 SCRA 141, November 29, 1976). Distinguished

566 Center for Legal Education and Research

 Purple Notes
Remedial Law
RES GESTAE IN 5. The foregoing must be shown by the
DYING
CONNECTION WITH A testimony of the custodian or other qualified
DECLARATIONS
HOMICIDAL ACT witnesses.
May be made by: Can be made only by the
a. The accused himself victim.
IX. Entries in the Official Records
after or during the
killing; or
b. That of a 3rd person Entries in official records made in the
May precede, Made only after the performance of his or her duty by a public
accompany or be made homicidal attacks has officer of the Philippines, or by a person in the
after the homicidal been committed. performance of a duty specially enjoined by law,
attacks was committed. are prima facie evidence of the facts therein
Justification in the Trustworthiness based stated (Rule 130, Sec. 46, as amended).
spontaneity of the upon its being given an
statement. awareness of impending Requisites:
death.
1. The entries were made by:
VIII. Records of Regularly Conducted a) A public officer in the performance of his
Business Activity duties; or,
b) A person in the performance of a duty
A memorandum, report, record or data specially enjoined by law.
compilation of acts, events, conditions, opinions, 2. Entrant has personal knowledge of the facts
or diagnoses, made by writing, typing, stated by him or such facts were acquired by
electronic, optical or other similar means at or him from reports made by persons under a
near the time of or from transmission or supply legal duty to submit the same; and
of information by a person with knowledge 3. Such entries were duly entered in a regular
thereof, and kept in the regular course or manner in the official records (DST Movers
conduct of a business activity, and such was the Corporation v. People‘s General Insurance
regular practice to make the memorandum, Corporation, G.R. No. 198627, January 13, 2016).
report, record, or data compilation by electronic,
optical or similar means, all of which are shown Entries in police records made by a police officer
by the testimony of the custodian or other in the performance of the duty especially
qualified witnesses, is excepted from the rule on enjoined by law are prima facie evidence of the
hearsay evidence (Rule 130 Sec. 45, as amended). fact therein stated, and their probative value
may be either substantiated or nullified by other
Requisites: competent evidence (Lao vs. Standard Insurance
Co. Inc., G.R. No. 140023, August 14, 2003). The
1. The entries may consist of a memorandum, necessity of this rule consists in the
report, record or data compilation of acts, inconvenience and difficulty of requiring the
events, conditions, opinions, or diagnoses, official's attendance as a witness to testify to the
made by writing, typing, electronic, optical or innumerable transactions in the course of his
other similar means at or near the time of or duty. The document's trustworthiness consists in
from transmission or supply of information the presumption of regularity of performance of
2. Such entries were made by a person with official duty (Dimaguila vs. Monteiro, G.R. No.
knowledge thereof; 201011, January 27, 2014).
3. Such entries were kept in the regular course
or conduct of business activity;  Although A Traffic Accident Investigation
4. Such was a regular practice to make the Report cannot be given probative weight
memorandum, report, record, or data when the investigating officer who
compilation by electronic, optical or similar prepared the same was not presented in
means; and court to testify that he had sufficient
knowledge of the facts therein stated, and

Bar Operations C ommissions 567

 Purple Notes
Remedial Law
that he acquired them personally or
through official information (Standard
Insurance Co., Inc. v. Cuaresma, G.R. No.
200055, September 10, 2014).
 Cadastral maps are the output of cadastral
surveys. The DENR is the department
tasked to execute, supervise and manage
the conduct of cadastral surveys. It is,
therefore, clear that the cadastral map and
the corresponding list of claimants qualify
as entries in official records as they were
prepared by the DENR, as mandated by
law. As such, they are exceptions to the
hearsay rule and are prima facie evidence
of the facts stated therein (Dimaguila vs.
Monteiro, G.R. No. 201011, January 27, 2014).
Note: In official records, the person making the
entry need not be deceased or unable to testify,
but he must be a public officer or a person in
the performance of a duty specially enjoined by
law. In business records, the person making the
entry must be deceased or unable to testify.
Both official and business records are only prima
facie evidence.
X. Commercial Lists and the Like
Evidence of statements of matters of interest to
persons engaged in an occupation contained in
a list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally
used and relied upon by them therein (Rule 130,
Sec. 47).
Requisites:
A document is a commercial list if:
1. It is a statement of matters of interest to
persons engaged in an occupation;
2. Such statement is contained in a list,
register, periodical or other published
compilation;
3. Said compilation is published for the use of
persons engaged in that occupation, and
568 Center for Legal Education and Research
4. It is generally used and relied upon by
persons in the same occupation (PNOC
Shipping and Transport Corporation, G.R. No.
107518, October 8, 1998).
 Statement of matters contained in a
periodical, may be admitted only "if that
compilation is published for use by persons
engaged in that occupation and is generally
used and relied upon by them therein"
(Manila Electric Company vs. Quisumbing, G.R.
No. 127598, February 22, 2000).
XI. Learned Treatises
How Introduced as Evidence
a) The court takes judicial notice that the writer
of the statement in the treatises, periodical
or pamphlet is recognized in his profession of
calling as expert in the subject; or,
b) A witness, expert in the subject, testifies that
the writer of the statement in the treaties,
periodical or pamphlet is recognized in his
profession or calling as expert in the subject
(Rule 130, Sec. 48).
Reason for Admissibility
1. Necessity – the inaccessibility, or
inconvenience to the authors or researchers;
and
2. Trustworthiness – The authors have no
motive to misrepresent and awareness that
the work will be subjected to inspection,
scrutiny and refutation, and criticism; the
works were carefully researched before being
published and were purposely geared
towards the truth.
XII. Testimony or Deposition at a
Former Proceeding
The testimony or deposition of a witness
deceased or out of the Philippines or who
cannot, with due diligence, be found therein, or
is unavailable or otherwise unable to testify,
given in a former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence
against the adverse party who had the
 Purple Notes
opportunity to cross-examine him or her (Rule
130, Sec. 49, as amended).
Requisites: (W-DOCU-PSIC)
1. That the huitness whose testimony is offered
in evidence is
a) Dead;
b) Out of the Philippines
c) In the Philippines but whose location
Cannot, with due diligence, be found
therein; or
d) Unavailable or unable to testify.
2. His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same Parties or
those representing the same interests;
3. The former case involved the same Subject
as that in the present case, although on
different causes of action;
4. The issue testified to by the witness in the
former trial is the same Issue involved in
the present case; and
5. The adverse party had an opportunity to
Cross-examine the witness in the former
case (Manliclic vs. Calaunan, G.R. No. 150157,
January 25, 2007).
Note: Though said section speaks only of
testimony and deposition, it does not mean that
documents from a former case or proceeding
cannot be admitted. Said documents can be
admitted they being part of the testimonies of
witnesses that have been admitted. Accordingly,
they shall be given the same weight as that to
which the testimony may be entitled (Manliclic
vs. Calaunan, G.R. No. 150157, January 25,
2007).
 The adoption by the Makati trial court of
the facts stated in the decision of the
Parañaque trial court does not fall under
the exception to the right of confrontation
because the exception contemplated by law
covers only the utilization of testimonies of
absent witnesses made in previous
proceedings, and does not include
utilization of previous decisions or
judgments (People vs. Ortiz-Miyake, G.R. Nos.
115338-39, September 16, 1997).
Remedial Law
XIII.Residual Exception
A statement not specifically covered by any of
the foregoing exceptions, having equivalent
circumstantial guarantees of trustworthiness, is
admissible subject to court determination.
 Rather than add a number of exceptions to
the hearsay rule, the Sub-Committee opted
to adopt the residual or catch-all exception
provided in Rule 807 of the Federal Rules
of Evidence.
The catch-all exception found in the FRE
stemmed from the ruling in Dallas County
v. Commercial Union Assurance Co., Ltd.,
which admitted an old newspaper article to
prove that a fire occurred at the court
tower during construction. Although not
falling under any of the recognized hearsay
exceptions, the news article was admitted
because of ―circumstantial guarantees of
trustworthiness based on the fact that the
individual reporting the fire had no motive
to falsify and that a false report of a matter
so easily checked by readers of the paper
would have subjected the reporter to
considerable embarrassment.‖
The catch-all exception should be ―used very
rarely and only in exceptional circumstances
[286 F. 2d 388 (5th Cir. 1961)].‖
Requisites: (MaTH-MP)
1. The statement is Hearsay not covered by any
of the exceptions to the Hearsay Rule
2. The statement has the circumstantial
guarantees of Trustworthiness;
3. Proponent Makes known to the adverse
party, sufficiently in advance of the hearing,
his intention to offer the statement and its
particulars, including the name and address
of the declarant; and
4. The court determines that:
a. the statement is offered as evidence of a
Material fact;
b. the statement is more Probative on the
point for which it is offered than any
other evidence which the proponent can
procure through reasonable efforts; and
Bar Operations C ommissions 569
 Purple Notes
Remedial Law
c. the general purposes of these rules and
the Interest of justice will be best served
by admission of the statement into
evidence (Rule 130, Sec. 50). (n)
8.E.5.d. Independently Relevant
Statements
Note: Independently relevant statements are
non-hearsay.
If the purpose of placing the statement on the
record is merely to establish the fact that the
statement, or the tenor of such statement, was
made, such evidence is not hearsay. Regardless
of the truth or falsity of a statement, when what
is relevant is the fact that such statement has
been made, the hearsay rule does not apply and
the statement may be shown. This is known as
the ―Doctrine of Independently Relevant
Statements‖ (Espineli vs. People, G.R. No.179535,
June 9, 2014).
Evidence as to the making of such statements is
not secondary but primary, for in itself it:
a) Constitutes a fact in issue; or
b) Is circumstantially relevant to the existence
of such fact (Lea Mer Industries, Inc. vs.
Malayan Insurance Co., Inc., G.R. No. 161745,
September 30, 2005).
The ban on hearsay evidence does not cover
independently relevant statements. These are
statements which are relevant independently of
whether they are true or not. They belong to
two (2) classes: (1) those statements which are
the very facts in issue, and (2) those statements
which are circumstantial evidence of the facts in
issue. The second class includes the following:
1. Statements of a person showing his state of
mind; that is, his mental condition,
knowledge, belief, intention, ill will and other
emotions
2. Statements that may identify the date, place
and condition as illness and the like
3. Statements of a person from which an
inference may be drawn as to the state of
mind of another person; i.e., the knowledge,
belief, good or bad faith noticed of the latter
570 Center for Legal Education and Research
4. Statements that may identify the date, place
and person in question
5. Statements showing the lack of credibility of
a witness (Estrada vs. Desierto, G.R. Nos.
146710-15, April 3, 2001).
 The doctrine on independently relevant
statements holds that conversations
communicated to a witness by a third person
may be admitted as proof that, regardless of
their truth or falsity, they were actually
made(Republic of the Philippines vs. Heirs of
Alejaga, G.R. No. 146030, December 3, 2002).
 In the report of Special Investigator, Recio
supposedly admitted that he had not actually
conducted an investigation and ocular
inspection of the parcel of land. Cartagena‘s
statement on Recio‘s alleged admission may
be considered as "independently relevant." A
witness may testify as to the state of mind of
another person -- the latter‘s knowledge,
belief, or good or bad faith -- and the
former‘s statements may then be regarded
as independently relevant without violating
the hearsay rule (Republic of the Philippines vs.
Heirs of Alejaga, G.R. No. 146030, December 3,
2002).
8.E.6. OPINION RULE
General Rule: The opinion of a witness is not
admissible (Rule 130, Sec. 51, as amended).
Exceptions: Admissible opinion evidence
1. Opinion of Expert Witness on a matter
requiring special knowledge, skill, experience
or training or education, which he is shown
to possess (Rule 130, Sec. 52, as amended);
2. Opinion of Ordinary Witness regarding:
(IHMI)
a. The Identity of a person about whom he
has adequate knowledge (Rule 130, Sec.
53[a], as amended);
b. A Handwriting with which he has
sufficient familiarity (Rule 130, Sec. 53[b],
as amended );
c. The Mental sanity of a person with whom
he is sufficient acquainted (Rule 130, Sec.
53[c], as amended); and
 Purple Notes
d. The witness‘ Impression of the emotion,
behavior, condition or appearance of a
person (Rule 130, Sec. 53, as amended)
8.E.6.a. Opinion of Expert Witness; Weight
Given
An expert witness is one who belongs to the
profession/calling to which the subject matter of
the inquiry relates and who possesses special
knowledge on questions on which he proposes
to express an opinion.
There is no definite standard of determining the
degree of skill/knowledge that a witness must
possess in order to testify as an expert. It is
sufficient that the following factors are present:
a) Training and education;
b) Particular, first-hand familiarity with the facts
of the case; or
c) Presentation of authorities or standards upon
which his opinion is based (People vs. Abriol,
G.R. No. 123137, October 17, 2001).
The use of the word ―may‖ in Sec. [52], Rule
130 signifies that the use of opinion of an expert
witness is permissive and not mandatory on the
part of the courts (Tabao vs. People, G.R. No.
187246, July 20, 2011).
Probative Value of Expert Opinions
Expert opinions are not ordinarily conclusive in
the sense that they must be accepted as true on
the subject of their testimony, but are generally
regarded as purely advisory in character; the
courts may place whatever weight they choose
upon such testimony and may reject it, if they
find it is inconsistent with the facts in the case
or otherwise unreasonable (Ceballos vs. Intestate
Estate of the Late Emigdio Mercado, G. R. No.
155856, May 28, 2004).
 When faced with conflicting expert
opinions, courts give more weight and
credence to that which is more complete,
thorough and scientific (Eduarte vs. CA, G.R.
No. 105944, February 9, 1996).
Probative Value of Opinions of
Handwriting Experts
Remedial Law
The opinions of handwriting experts are not
necessarily binding upon the court, the expert‘s
function being to place before the court data
upon which the court can form its own opinion.
Handwriting experts are usually helpful in the
examination of forged documents because of
the technical procedure involved in analyzing
them. But resort to these experts is not
mandatory or indispensable to the examination
or the comparison of handwriting. A finding of
forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an independent
examination of the questioned signature in order
to arrive at a reasonable conclusion as to its
authenticity (Lorzano vs. Tabayag, Jr., G.R. No.
189647, February 6, 2012).
Expert Testimony in Medical Negligence
Cases
Medical negligence cases are best proved by
opinions of expert witnesses belonging in the
same general neighborhood and in the same
general line of practice as defendant physician
or surgeon (Lucas vs. Tuaño, G.R. No. 178763, April
21, 2009).
Expert Opinion in Annulment of Marriage
Cases
By the very nature of Article 36, courts, despite
having the primary task and burden of decision-
making, must not discount but, instead, must
consider as decisive evidence the expert opinion
on the psychological and mental temperaments
of the parties (Ngo Te vs. Yu-Te, G.R. No. 161793,
February 13, 2009).
It is no longer necessary to introduce expert
opinion in a petition under Article 36 of the
Family Code if the totality of evidence shows
that psychological incapacity exists and its
gravity, juridical antecedence, and incurability
can be duly established (Agraviador vs. Amparo-
Agraviador, G.R. No. 170729, December 8, 2010).
8.E.6.b. Opinion of Ordinary Witness
The opinion of a witness for which proper basis
is given, may be received in evidence regarding:
(IHMI)
Bar Operations C ommissions 571
 Purple Notes
Remedial Law
1. The Identity of a person about whom he has
adequate knowledge (Rule 130, Sec. 53[a], as
amended);
2. A Handwriting with which he has sufficient
familiarity (Rule 130, Sec. 53[b], as amended);
3. The Mental sanity of a person with whom he
is sufficient acquainted (Rule 130, Sec. 53[c],
as amended); and
4. The witness‘ Impression of the emotion,
behavior, condition or appearance of a
person (Rule 130, Sec. 53, as amended)
8.E.7. CHARACTER EVIDENCE
Character consists of the individual patterns of
behavior and characteristics which make up and
distinguish one person from another (People vs.
Lee, G.R. No. 139070, May 29, 2002).
Reputation is the general opinion of people in
the community as to a person‘s character traits,
and is therefore evidence of character.
Good moral character includes all the elements
essential to make up such a character; among
these are common honesty and veracity,
especially in all professional intercourse; a
character that measures up as good among
people of the community in which the person
lives, or that is up to the standard of the
average citizen; that status which attaches to a
man of good behavior and upright conduct
(People vs. Lee, G.R. No. 139070, May 29, 2002).
Note: Common reputation is an exception to
the Hearsay Rule.
General Rule: Evidence of a person‘s character
or a trait of character is not admissible for the
purposes of proving action in conformity
therewith on a particular occasion (Rule 130, Sec.
54, as amended).
The rule is that the character or reputation of a
party is regarded as legally irrelevant in
determining a controversy, so that evidence
relating thereto is not admissible. Ordinarily, if
the issues in the case were allowed to be
influenced by evidence of the character or
reputation of the parties, the trial would be apt
572 Center for Legal Education and Research
to have the aspects of a popularity contest
rather than a factual inquiry into the merits of
the case. After all, the business of the court is to
try the case, and not the man; and a very bad
man may have a righteous cause (People vs. Lee,
G.R. No. 139070, May 29, 2002).
Exceptions:
A. In Criminal Cases:
1. The Accused may prove his/her good moral
character which is pertinent to the moral trait
involved in the offense charged [Rule 130,
Sec. 54(a)(2)].
When the accused presents proof of his good
moral character, this strengthens the
presumption of innocence, and where good
character and reputation are established, an
inference arises that the accused did not
commit the crime charged. This view
proceeds from the theory that a person of
good character and high reputation is not
likely to have committed the act charged
against him (People vs. Lee, G.R. No. 139070,
May 29, 2002).
2. The prosecution may not prove the bad
moral character of the accused except only in
rebuttal and when such evidence is pertinent
to the moral trait involved in the offense
charged [People vs. Lee citing Rule 130, Sec.
54(a)(2)].
This is intended to avoid unfair prejudice to
the accused who might otherwise be
convicted not because he is guilty but
because he is a person of bad character. The
offering of character evidence on his behalf
is a privilege of the defendant, and the
prosecution cannot comment on the failure
of the defendant to produce such evidence.
Once the defendant raises the issue of his
good character, the prosecution may, in
rebuttal, offer evidence of the defendant‘s
bad character (People vs. Lee, G.R. No. 139070,
May 29, 2002).
3. The character of the offended party may
be proved if it tends to establish in any
reasonable degree the probability or
 Purple Notes
improbability of the offense charged [Rule 130,
Sec. 54(a)(1)].
4. Evidence of the good character of a witness
is not admissible until such character has
been impeached [Rule 130, Sec. 54(c)].
Exceptions to the Exception:
1. Proof of the bad character of the victim in a
murder case is NOT admissible if the crime
was committed through treachery and
premeditation (People vs. Lee, G.R. No. 139070,
May 29, 2002).
2. In prosecution for rape, evidence of
complainant‘s past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that
the court finds that such evidence is material
and relevant to the case (Rape Shield, R.A. No.
8505, Sec. 6).
B. In Civil Cases:
1. Evidence of the moral character of a party in
a civil case is admissible only when pertinent
to the issue of character involved in the case
[Rule 130, Sec. 54(b)].
2. Evidence of the good character of a witness
is not admissible until such character has
been impeached [Rule 130, Sec. 54(c)].
Manner of Proving Character
1. By Reputation or Opinion:
a) By testimony as to reputation;
b) By testimony in the form of an opinion; or
c) On cross-examination, inquiry is allowable
into relevant specific instances of conduct
(Rule 130, Sec. 54[c], as amended). (n)
2. By Specific Instances of Conduct:
In cases in which character or a trait of
character of a person is an essential element
of a charge, claim or defense, proof may also
be made of specific instances of that person‘s
conduct (Rule 130, Sec. 54[c], as amended).(n)
Remedial Law
8.E.8. JUDICIAL AFFIDAVIT (A.M. No. 12-8-8-
SC)
Promulgated by the Supreme Court with the
intention to address case congestion and delays,
the high percentage of criminal cases dismissed
annually due to complainants‘ failure to
prosecute,and enhance foreign investment.
The Judicial Affidavit Rule took effect January 1,
2013 (Sec. 12).
8.E.8.a. Scope and Application
This Rule shall apply to all actions, proceedings,
and incidents requiring the reception of
evidence before:
1. The Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial
Courts, the Municipal Circuit Trial Courts, and
the Shari' a Circuit Courts;
2. The Regional Trial Courts and the Shari'a
District Courts;
3. The Sandiganbayan, the Court of Tax
Appeals, the Court of Appeals, and the
Shari'a Appellate Courts;
4. The investigating officers and bodies
authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the
Philippine (IBP); and
5. The special courts and quasi-judicial bodies
whose rules of procedure are subject to
disapproval of the Supreme Court [Sec. 1(a)].
8.E.8.b. Submission In Lieu of Direct
Testimony
In civil actions, the parties shall file with the
court and serve on the adverse party:
1. The judicial affidavits of their witnesses,
which shall take the place of such witnesses'
direct testimonies; and
2. The parties' documentary or object evidence,
if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and
so on in the case of the complainant or the
plaintiff, and as Exhibits 1, 2, 3, and so on in
Bar Operations C ommissions 573
 Purple Notes
Remedial Law
the case of the respondent or the defendant
[Sec. 2(a), as amended].
Note: Every pleading stating a party's claims or
defenses shall, in addition to those mandated by
Rule 7, Sec. 2, of the Rules of Court, as
amended state the following:
a) Names of witnesses who will be presented to
prove a party's claim or defense;
b) Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be attached
to the pleading and form an integral part
thereof.
Only witnesses whose judicial affidavits are
attached to the pleading shall be presented
by the parties during trial. Except if a party
presents meritorious reasons as basis for the
admission of additional witnesses, no other
witness or affidavit shall be heard or
admitted by the court; and
c) Documentary and object evidence in support
of the allegations contained in the pleading
(Rule 7, Sec. 6, Rules of Court, as amended). (n)
Should a party or a witness desire to keep the
original document or object evidence in his
possession, he may, after the same has been
identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a
faithful copy or reproduction of that original
[Sec. 2(b)].
Note: The party or witness shall bring the
original document or object evidence for
comparison during the preliminary conference
with the attached copy, reproduction, or
pictures. The evidence shall NOT be admitted if
this requirement was not complied with [Sec.
2(b)].
This is without prejudice to the introduction of
secondary evidence in place of the original when
allowed by existing rules.
8.E.8.c. Contents (Section 3):
574 Center for Legal Education and Research
A judicial affidavit shall be prepared in a
language known to the witness.
If NOT in English or Filipino, it must be
accompanied by a translation in English or
Filipino, and shall contain the following:
1. Name, age, residence or business address,
and occupation of the witness;
2. Name and address of the lawyer who
conducts or supervises the examination of
the witness and the place where the
examination is being held;
3. Statement that the witness is answering the
questions asked of him, fully conscious that
he does so under oath, and that he may face
criminal liability for false testimony or
perjury;
4. Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies;
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules
of Court;
5. The signature of the witness over his printed
name; and
6. Jurat (Sec. 3).
Tasks and Liability of the Lawyer
The judicial affidavit shall contain a sworn
attestation at the end, executed by the lawyer
who conducted or supervised the examination of
the witness, to the effect that:
1. He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
2. Neither he nor any other person then present
or assisting him coached the witness
regarding the latter's answers [Sec. 4(a)].
 Purple Notes
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment [Sec. 4(b)].
Examination of the Witness on his Judicial
Affidavit
The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and
on the exhibits attached to the same. The party
who presents the witness may also examine him
as on re-direct.
In every case, the court shall take active part in
examining the witness to determine his
credibility as well as the truth of his testimony
and to elicit the answers that it needs for
resolving the issues (Sec. 7).
8.E.8.d. Offer and Objection to Testimony
in Judicial Affidavit
1. Party who presents the judicial affidavit of
his witness in place of direct testimony shall
state the purpose of the testimony at the
start of the presentation of the witness.
2. The adverse party may move to:
a) disqualify the witness; or,
b) strike out his affidavit or any answers if
inadmissible under the Rules.
3. The court shall promptly rule on the motion.
If granted, the court shall cause the marking
of any excluded answer by placing it in
brackets under the initials of an authorized
court personnel, without prejudice to tender
of excluded evidence.
Oral Offer and Objections to Exhibits
1. Upon the termination of the testimony of his
last witness, a party shall immediately make
an oral offer of evidence of his documentary
or object exhibits, piece by piece, in
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit.
2. After each exhibit is offered, the adverse
party shall state the legal ground for his
objection, if any, to its admission, and the
court shall immediately make its ruling
respecting that exhibit (Sec. 8).
Remedial Law
 An Affidavit has no probative value if it is
not presented formally in evidence (People
vs. Amores, G.R. No. L-32996, August 21,
1974).
8.E.8.e. Application in Criminal Cases
The Judicial Affidavit Rule shall apply to all
criminal actions:
a) Where the maximum of the imposable
penalty does not exceed six years;
b) Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
c) With respect to the civil aspect of the
actions, whatever the penalties involved are
[Sec. 9(a)].
8.E.8.f. Effects of Non-Compliance
General Rule: A party who fails to submit the
required judicial affidavits and exhibits on time
shall be deemed to have waived their
submission.
Exception: The court may, allow only once the
late submission of the same, provided:
1. The delay is for valid reasons;
2. The delay would not unduly prejudice the
opposing party; and
3. The defaulting party pays a fine of not less
than Php. 1,000 nor more than Php. 5,000,
at the discretion of the Court [Sec. 10(a)].
The court shall not consider the affidavit of any
witness who fails to appear at the scheduled
hearing of the case as required [Sec. 10(b)].
Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived
his client's right to confront by cross-
examination the witnesses there present [Sec.
10(b)].
The court shall not admit as evidence judicial
affidavits that do not conform to the content
requirements of Section 3 and the attestation
requirement of Section 4 [Sec. 10(c)].
Bar Operations C ommissions 575
 Purple Notes
Remedial Law
Note: Every pleading stating a party's claims or
defenses shall, in addition to those mandated by
Rule 7, Sec. 2 of the Rules of Court, as
amended, state the following:
a) Names of witnesses who will be presented to
prove a party's claim or defense;
b) Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be attached
to the pleading and form an integral part
thereof.
Only witnesses whose judicial affidavits are
attached to the pleading shall be presented by
the parties during trial. Except if a party
presents meritorious reasons as basis for the
admission of additional witnesses, no other
witness or affidavit shall be heard or admitted
by the court; and
Documentary and object evidence in support of
the allegations contained in the pleading (Rule 7,
Sec. 6, Rules of Court, as amended).(n)
Affidavit as Hearsay Evidence
General Rule: An affidavit is merely hearsay
evidence where its affiant/maker did not take
the witness stand (Dantis vs. Maghinang, Jr., G.R.
No. 191696, April 10, 2013).
The reason for this rule is that they are not
generally prepared by the affiant, but by
another one who uses his or her own language
in writing the affiant's statements, parts of
which may thus be either omitted or
misunderstood by the one writing them.
Moreover, the adverse party is deprived of the
opportunity to cross-examine the affiants. For
this reason, affidavits are generally rejected for
being hearsay, unless the affiants themselves
are placed on the witness stand to testify
thereon (Republic vs. Gimenez, G.R. No. 174673,
January 11, 2016).
 Appellant Santos now complains that the
affidavit of Ronaldo Guerrero was hearsay
evidence, considering that the prosecution
did not present Ronaldo Guerrero as a
witness during the trial. Appellant had
waived the hearsay character of this
576 Center for Legal Education and Research
evidence by failure seasonably to object to
the admission of the affidavit; it is too late
in that day to raise the hearsay rule in the
appellant's memorandum after prosecution
and defense had presented their respective
cases and had made their respective offers
of evidence (People of the Philippines vs.
Santos, G.R. Nos. 100225-26, May 11, 1993).
Exception: The rule that an affidavit is
considered hearsay is liberally applied in labor
cases.
It is not necessary for the affiants to appear and
testify and be cross-examined by counsel for the
adverse party. To require otherwise would be to
negate the rationale and purpose of the
summary nature of the proceedings mandated
by the Rules and to make mandatory the
application of the technical rules of evidence
(Lepanto Consolidated Mining Company vs. Dumapis,
G.R. No. 163210, August 13, 2008).
8.F. OFFER AND OBJECTION
8.F.1. OFFER OF EVIDENCE
General Rule: The court shall consider no
evidence which has not been formally offered.
The purpose for which the evidence is offered
must be specified (Rule 132, Sec. 34).
Exceptions:
1. Marked exhibits not formally offered may be
admitted provided it complies with the
following requisites:
a. Must be duly identified by testimony
duly recorded; and,
b. Must have been incorporated in the
records of the case (Ramos vs Dizon, G.R
No. 137247, August 6, 2006).
2. Under the Rule on Summary Procedure,
where no full-blown trial is held in the
interest of speedy administration of justice;
3. In summary judgments under Rule 35 where
the judge based his decisions on the
pleadings, depositions, admissions, affidavits
and documents filed with the court;
4. Documents whose contents are taken judicial
notice of by the court;
 Purple Notes
5. Documents whose contents are judicially
admitted;
6. Object evidence which could not be formally
offered because they have disappeared or
have become lost after they have been
marked, identified and testified on and
described in the record and became the
subject of cross-examination of the witness
who testified on them during the trial
(Tabuena vs CA, G.R No. 85423, May 6, 1991;
People vs Napat-a, G.R No. 84951, November 14,
1989);and
7. Documents and affidavits used in deciding
quasi-judicial or administrative cases
(Bantolino vs. Coca-Cola Bottlers Inc., G.R No.
153660, June 10, 2003).
Purpose of Offer of Evidence
1. To give the adverse party the opportunity to
interpose the proper objection;
2. To notify the party of possible objection, and
for the offeror to make necessary correction
at the trial level to meet the objection;
3. To allow the trial judge to rule properly;
4. To lay basis for appeal so that the appellate
court can decide intelligently (Regalado, 2008).
General Rule: A formal offer is necessary since
judges are required to base their findings of fact
and their judgment, solely and strictly, upon the
evidence offered by the parties at the trial
(Aludos vs. Suerte, G.R No. 165285, June 18, 2012).
 Evidence not formally offered during the
trial cannot be used for or against a litigant.
Neither may it be taken into account on an
appeal. Any evidence that has not been
offered shall be excluded and rejected.
Objection to evidence must be made after
the evidence is formally offered (Westmont
Investment Corp. vs Francia, G.R. No. 194128,
December 7, 2011).
 To allow parties to attach any documents
to their pleadings and then expect the court
to consider it as evidence, even without
formal offer and admissions, may draw
unwarranted consequences. Opposing
parties will be deprived of their chance to
examine the document and to object to its
admissibility. On the other hand, the
appellate court will have difficulty reviewing
Remedial Law
the documents not previously scrutinized by
the court below (Candido vs CA, G.R No.
107493, February 1, 1996).
Exception: Even if there was no formal offer
made, marked exhibits may be admitted when
the following requisites are present: it was (1)
duly identified by testimony; and, (2)
incorporated in the records of the case (Ramos vs
Dizon, G.R No. 137247, August 6, 2006).
 Mere fact that a document is marked as an
exhibit does not that mean it has been
offered as evidence. Marking at the pre-trial
was only for the purpose of identifying
them at that time (Tabuena vs. CA, G.R. No.
85423, May 6, 1991).
 It is basic in law of evidence that the court
shall consider evidence solely for the
purpose for which it was offered (Ragudo vs
Fabella Estate Tenants Assoc. Inc., G.R No.
146823, August 9, 2005).
8.F.2. WHEN TO MAKE OFFER
Testimonial Documentary
Evidence and Object
Evidence
How All evidence must be offered orally.
Whe Made at the time Made after the
n the witness is called presentation of a
to testify. party's testimonial
evidence.
(Rule 132, Sec. 35, as amended)
Offer of documentary or object (real) evidence
is the submission, when a party is about to rest
his case, for admission by the court documents
and/or objects previously identified and
numbered as exhibits by stating their nature and
the purpose or purposes for which they are
being submitted (ANNOTATION: Failure to Make an
Offer of Evidence: A Fatal Omission, 301 SCRA 408).
Note: The mere fact that a particular document
is identified and marked as an exhibit does not
mean it will be or has been offered as part of
the evidence of the party. The party may decide
to formally offer it if it believes this will advance
its cause, and then again it may decide not to
do so at all. In the latter event, the trial court is,
under Rule 132, Section [34] not authorized to
Bar Operations C ommissions 577
 Purple Notes
Remedial Law
consider it (Ramos vs Dizon, G.R No. 137247, faithfulness of the reproductions marked, or
August 6, 2006). their genuineness and due execution [Rule 18,
Sec. 4(h), Rules of Court, as amended].(n)
 Where the genuineness and due execution
of documents of an instrument attached to Evidence Sought to be When Objection Must
a complaint are deemed admitted by failure Introduced be Made
to specifically deny it under oath, such Testimonial evidence Objection must be made
instruments are considered as evidence which was not offered at as soon as the witness
although they were not formally offered the time the witness was begins to testify (Rule
(Philippine Bank of Commerce vs. CA, G.R. No. not called to testify 132, Sec. 36, as
97626 March 14, 1997). amended).
Testimonial evidence Objection must be made
where the question as soon as the grounds
Offer of testimonial evidence is the submission
propounded in the course therefor become
of the testimony of a witness for admission by of the oral examination in reasonably apparent
making a brief recital of the nature of his objectionable (Rule 132, Sec. 36, as
testimony at the time he is called to testify amended).
(ANNOTATION: Failure to Make an Offer of Evidence: Documentary and object When the document or
A Fatal Omission, 301 SCRA 408). evidence object evidence is offered
in evidence.
8.F.3. OBJECTION Judicial Affidavit Rule Objection must be made
as soon as the party
When Objection Must be Made presenting the judicial
affidavit of his witness in
Objection to offer of evidence must be made place of direct testimony
shall state the purpose of
orally immediately after the offer is made (Rule
such testimony at the
132, Sec. 36, as amended).
start of the presentation
of the witness. The
Waiver of Objection adverse party may move
to disqualify the witness
It is elementary that an objection shall be made or to strike out his
at the time when an alleged inadmissible affidavit or any of the
document is offered in evidence. Otherwise, the answers found in it on
objection shall be treated as waived, since the ground of inadmissibility
right to object is merely a privilege which the (A.M. No. 12-8-8-SC,
Sec. 6).
party may waive (Tison vs. Court of Appeals, G.R.
The grounds for the objections must be specified
No. 121027, July 31, 1997).
(Rule 132, Sec. 36, as amended).
As explained in Abrenica vs. Gonda, et al., it has
been repeatedly laid down as a rule of evidence
Note: The revised rule no longer sanctions offer
that a protest or objection against the admission
of evidence in writing. All evidence must now
of any evidence must be made at the proper
be offered orally (Rule 132, Sec. 35, as
time, otherwise it will be deemed to have been
amended).Consequently, the manner of objecting
waived. The proper time is when from the
to the evidence offered in writing is no longer
question addressed to the witness, or from the
available in the Rule 132 Sec. 36, as amended.
answer thereto, or from the presentation of the
proof, the inadmissibility of the evidence is, or
Specific and General Objections
may be inferred (Tison vs. Court of Appeals, G.R.
No. 121027, July 31, 1997).
a) Specific – is one which employs a specific
Note: Failure without just cause of a party and ground therefor. Example: Hearsay
counsel to appear during pre-trial, despite
notice, is waiver of any objections to the

578 Center for Legal Education and Research

 Purple Notes
b) General – uses broad or sweeping grounds
such as ―irrelevant and incompetent‖. Note:
There is no provision in the Rules of
Evidence expressly prohibiting general
objections. It is submitted that they are not
prohibited where the evidence is orally
offered. In such a case if the objection is
overruled, the objector must follow up with
specific objection. Otherwise, he cannot
assign any error to the court‘s ruling.
Formal and Substantive Objections (in the
course of the proceedings):
c) Formal – objection is one directed against
the alleged defect in the formulation of the
question.
Examples: ambiguous questions; misleading;
answer not responsive and to have it
stricken-off; question has no basis;
incompetent; irrelevant.
d) Substantive – is one made and directed
against the very nature of the evidence. ,
i.e., it is admissible either because it is
irrelevant or incompetent or both. (RIANO,
2016)
Examples:parol; not the best evidence;
hearsay; privileged communication; not
authenticated; opinion; res inter alios acta.
8.F.4. REPETITION OF AN OBJECTION
Note: This rule is commonly known as the ―Rule
on Continuing Objections‖.
When it becomes reasonably apparent in the
course of the examination of a witness that the
questions being propounded are of the same
class as those to which objection has been
made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse
party to record his or her continuing objection to
such class of questions (Rule 132, Sec. 37).
8.F.5. RULING OF THE COURT AFTER
OBJECTION
Remedial Law
General Rule: The ruling of the court must be
given immediately after the objection is made.
Exception: When the court desires to take a
reasonable time to inform itself on the question
presented.
Note: The ruling shall always be made during
trial, and at such time as will give the party
against whom it is made an opportunity to meet
the situation presented by the ruling (Rule 132,
Sec. 38).
Overruled Objections and Sustained
Objections, Distinguished
When the court ―overrules‖ an objection, it
refuses to recognize as sufficient an objection
made in the course of a trial, as to the
introduction of particular evidence (Black‘s Law
Dictionary, 2nd ed.). It is the refusal by a judge
to sustain an objection set forth by an attorney
during a trial, such as an objection to a
particular question posed to a witness (West's
Encyclopedia of American Law, 2nd ed.).
When the court ―sustains‖ an objection, it
agrees with the objection and disallows the
question, testimony, or evidence.
Specifying the Reason for Sustaining an
Objection
General Rule: The reason for sustaining or
overruling an objection need not be stated.
Exception: If the objection is based on two or
more grounds, a ruling sustaining the objection
on one or some of them must specify the
ground or grounds relied upon (Rule 132, Sec.
38).
Note: The parties may ask for the ground for
the ruling, even if the rule does not require the
judge to so state.
8.F.6. STRIKING OUT OF AN ANSWER
Requisites: (BROWN-MS)
1. In the course of the testimony:
Bar Operations C ommissions 579
 Purple Notes
Remedial Law
a) The witness answers the question before
the adverse party had the Opportunity to
voice fully its objection to the same;
b) The question propounded is not
objectionable, but the answer is not
Responsive;
c) The witness testifies Without a question
being posed;
d) The witness testifies Beyond limits set by
the court; or
e) The witness does a Narration instead of
answering the question
2. Objection is found to be Meritorious; and
3. Court Sustains objection and orders such
answer, testimony or narration to be stricken
off the record (Rule 132, Sec. 39, as amended).
Note: On proper motion, the court may also
order the striking out of answers which are
incompetent, irrelevant, or otherwise improper
(Rule 132, Sec. 39, as amended).
Further, upon motion to strike may be availed
when the witness becomes unavailable for
cross-examination through no fault of the cross-
examining party, or when the testimony was
allowed conditionally and the condition for its
admissibility was not fulfilled(RIANO, 2016).
Matters stricken off are still part of the records.
It only means that they would NOT be
considered for resolution.
8.F.7. TENDER OF EXCLUDED EVIDENCE
Note: This is commonly known as ―Proffer of
Evidence‖ or ―Offer of Proof‖.
The rule is that evidence formally offered by a
party may be admitted or excluded by the court.
If a party's offered documentary or object
evidence is excluded, he may move or request
that it be attached to form part of the records of
the case. If the excluded evidence is oral, he
may state for the record the name and other
personal circumstances of the witness and the
substance of the proposed testimony. These
procedures are known as offer of proof or
tender of excluded evidence and are made for
purposes of appeal. If an adverse judgment is
eventually rendered against the offeror, he may
580 Center for Legal Education and Research
in his appeal assign as error the rejection of the
excluded evidence (Fortune Tobacco Corporation
vs. CIR, G.R. No. 192024, July 1, 2015).
Purposes:
1. To allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the
evidence or testimony; and
2. To create and preserve a record for appeal.
(RIANO, 2016)
How Done:
1. Object or Documentary Evidence – have the
same attached or made part of the record.
2. Testimonial – state for the record:
a. The name and other personal
circumstances of the witness; and
b. The substance of the proposed testimony.
Note: If an adverse judgment is
eventuallyrendered against the offeror, he may,
in his appeal, assign as an error the rejection of
the excluded evidence (Rule 132, Sec. 40).
 Where the documentary evidence was
rejected by the lower court and the offeror
did not move that the same be attached to
the record, the same cannot be considered
by the appellate court, as documents
forming no part of proofs before the
appellate court cannot be considered in
disposing the same. For the appellate court
to consider as evidence that which was not
offered by one party at all during the
proceedings below would infringe the
constitutional right of the adverse party
(Fortune Tobacco Corp. vs CIR; G.R. No.
192024, July 01, 2015).
9. REVISED RULES ON SUMMARY
PROCEDURE
9.A. CASES COVERED BY THE RULE
Scope (Rule on Summary Procedure, Sec. 1)
The Rule on Summary Procedure shall govern
the procedure in the Metropolitan Trial Courts
 Purple Notes
(MeTC), the Municipal Trial Courts in Cities
(MTCC), the Municipal Trial Courts (MTC) and
the Municipal Circuit Trial Courts (MCTC).
CIVIL CASES
1. All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaidrentalssought to be
recovered;
2. All other cases where the total amount of the
plaintiff‘s claim, exclusive of interests and
costs:
a. DOES NOT EXCEED Php. 300,000 outside
Metro Manila; or,
b.DOES NOT EXCEED Php. 400,000 (in Metro
Manila
Exception: Probate Proceedings (Revised Rules
on Summary Procedure, as amended by A.M. No. 02-
11-09-SC, effective November 25, 2002).
The jurisdiction of the Municipal Trial Courts in
Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts, in cases of forcible
entry and unlawful detainer, is described as
―exclusive and original‖ (Section 33(2), B.P. 129, as
amended)
Summary procedure. — Except in cases
covered by the agricultural tenancy laws or
when the law otherwise expressly provides, all
actions for forcible entry and unlawful detainer,
irrespective of the amount of damages or
unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder
provided. (Rules of Court, Rule 70, Sec. 3)
The Rules on Summary Procedure does NOT
apply to a civil case where the plaintiff‘s cause
of action is pleaded in the same complaint with
another cause of action subject to the ordinary
procedure; nor to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure
(Revised Rules on Summary Procedure, Sec. 1).
Pleadings
The only pleadings allowed are:
Remedial Law
1) Complaint;
2) Compulsory counterclaim pleaded in the
answer
3) Cross-claim pleaded in the answer; and,
4) Answer to these pleadings (Revised Rules on
Summary Procedure, Sec. 3)
All pleadings covered by summary procedure
shall be verified (Revised Rules on Summary
Procedure, Sec. 3B).
Outright Dismissal
The court may dismiss the case outright on any
of the grounds for the dismissal of a civil action
apparent from an examination of the allegations
in the pleadings and the evidence attached
thereto (Revised Rules on Summary Procedure, Sec.
4).
Summons
If no ground for dismissal is found, the court
shall forthwith issue summons which shall state
that summary procedure applies to the case
(Revised Rules on Summary Procedure, Sec. 4).
CRIMINAL CASES
A. Violations of traffic law, rules and
regulations;
B. Violation of the Rental Law;
C. All other criminal cases where the penalty
prescribed is imprisonment not exceeding six
(6) months, or fine not exceeding Php.
1,000, or both, irrespective of other
imposable penalties, accessory or otherwise,
or of the civil liability arising therefrom;
Note: In offenses involving damage to property
through criminal negligence, Rules on Summary
Procedure shall govern where the imposable fine
does NOT exceed P10,000.
Commencement of Action
The filing of criminal cases under summary
procedure may either be by complaint or
information, which shall be accompanied by the
affidavits of the complainant and his witnesses
in such number of copies as there are accused
plus two (2) copies for the court‘s files.
Bar Operations C ommissions 581
 Purple Notes
Remedial Law
In Metro Manila and other charted cities, the
filing shall be by information EXCEPT when the
offense is one which cannot be prosecuted de
officio.
The requirement for affidavits has to be
complied with within five (5) days from the filing
of the case, otherwise the same may be
dismissed (Rule on Summary Procedure, Sec. 11).
Court Action
If the court finds no cause or ground to hold the
accused for trial, it shall order the dismissal of
the case.
If there is such ground, the court shall set the
case for arraignment and trial.
If the accused is in custody for the crime
charged, he shall be immediately arraigned. If
he enters a plea of guilty, he shall forthwith be
sentenced (Rule on Summary Procedure, Sec. 13).
9.B EFFECT OF FAILURE TO FILE ANSWER
Answer and Counterclaims
Within ten (10) days from the service of
summons, the defendant shall file his answer to
the complaint and serve a copy thereof on the
plaintiff. The defenses not pleaded shall be
deemed waived EXCEPT lack of jurisdiction over
the subject matter.
Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered
barred (Revised Rules on Summary Procedure, Sec.
5).
The answer to counterclaims or cross-claims
shall be filed and served within ten (10) days
from service of the answer in which they are
pleaded (Revised Rules on Summary Procedure, Sec.
5).
Effect of failure to answer
A motion to declare the defendant in default is
prohibited. Instead, the court, motu proprio or
on motion of the plaintiff, shall render judgment
582 Center for Legal Education and Research
as may be warranted by the facts alleged in the
complaint (Revised Rules on Summary Procedure,
Sec. 6).
Note: The judgment rendered by the court in
such case shall be limited to what is prayed for
in the complaint.
 Q: Are the provisions of the Rules on
Summary Procedure on the period of
pleadings to be applied STRICTLY or
LIBERALLY?
A. The use of the word "shall" in the Rule
on Summary Procedure underscores the
mandatory character of the challenged
provisions. Giving the provisions a directory
application would subvert the nature of the
Rule on Summary Procedure and defeat its
objective of expediting the adjudication of
suits. Indeed, to admit a late answer, as
petitioners suggest, is to put premium on
dilatory maneuvers — the very mischief that
the Rule seeks to redress (Gachon vs Hon.
Norberto Devera Jr. GR No. 116695 June 20,
1997).
 Q: Are there any exceptions to the strict
application of Rules of Procedure on
Summary Procedure?
A: The liberality in the interpretation and
application of the rules applies only in
proper cases and under justifiable causes
and circumstances (Don Tino Realty and
Development Corp. vs Julian Florentino GR No.
134222 September 10,1999).
9.C. PRELIMINARY CONFERENCE AND
APPEARANCES
Preliminary Conference in Summary
Procedure in Civil Cases(Revised Rules on
Summary Procedure, Sec. 6)
It shall be held not later than 30 days after the
last answer is filed. The rules on pre-trial in
ordinary cases shall be used UNLESS
inconsistent with the Rules on Summary
Procedure.
 Purple Notes
If the plaintiff does not appear in the preliminary
conference while the defendant appears, it shall
be a cause for dismissal of the complaint. The
defendant, however, shall be entitled to
judgment on his counterclaim.
If there is only one defendant and he fails to
appear, the plaintiff shall be entitled to
judgment as may be warranted by the facts
alleged in the complaint.
Exception: When other defendants who are
sued under a common cause of action and have
pleaded a common defense appear at the
preliminary conference (Revised Rules on Summary
Procedure, Sec. 7).
Record of Preliminary Conference
The court shall issue an Order stating the
matters taken up in the preliminary conference,
within five (5) days after the termination of the
same.
Within ten (10) days from the receipt of the
Order, the parties shall submit the affidavits of
their witnesses and other evidence on the
factual issues defined in the order (Revised Rules
on Summary Procedure, Sec. 9).
Failure of the Plaintiff to Appear in the
Preliminary Conference for Civil Cases
1) Plaintiff- cause of dismissal of his complaint
2) Defendant- entitled to judgment on his
counterclaim. All cross-claims shall be
dismissed (Revised Rule on Summary Procedure,
Sec. 7).
Exception: When other defendants who are
sued under a common cause of action and have
pleaded a common defense appear at the
preliminary conference (Revised Rules on
Summary Procedure, Sec. 7).
Effect of Failure of Appearance of the Sole
Defendant in civil cases:
The plaintiff shall be entitled to judgment
in accordance with Section 6(Revised Rules on
Summary Procedure, Sec. 7).
Remedial Law
Judgment
Within thirty (30) days after receipt of the last
affidavits and position papers, or the expiration
of the period for filing the same, the court shall
render judgment (Revised Rules on Summary
Procedure, Sec. 10).
Preliminary Conference in Criminal Cases
Before trial, the court shall call the parties to a
Preliminary Conference for:
1) Entering into a stipulation of facts;
2) Considering the propriety of allowing the
accused to enter a plea of guilty to a lesser
offense; or,
3) Taking up such other matters to clarify the
issues and to ensure a speedy disposition of
the case (Rule on Summary Procedure, Sec. 14).
Note: Any admission of the accused during the
preliminary conference must be reduced in
writing and signed by the accused and his
counsel. Otherwise, such admission shall not be
used against the accused (Rule on Summary
Procedure, Sec. 14).
Trial (Revised Rule on Summary Procedure, Sec. 15)
An actual direct examination of the witnesses is
NOT required because the affidavits submitted
by the parties constitute their direct testimonies.
However, the witnesses may be subjected to a
cross-examination, re-direct examination or re-
cross examination.
If the affiant fails to testify, his affidavit shall not
be considered as competent evidence for the
party presenting the same. The adverse party,
on the other hand, may utilize such affidavit for
any admissible purpose.
Arrest of the Accused (Rule on Summary
Procedure, Sec. 16).
General Rule: The court is NOT mandated to
order the arrest of the accused.
Bar Operations C ommissions 583
 Purple Notes
Remedial Law
Exception: The ground is his failure to appear
when required by the court.
Note: If the accused is arrested, he may be
released on bail or on recognizance.
Judgment
Where a trial has been conducted, the court
shall promulgate the judgment not later than 30
days after the termination of the trial (Rule on
Summary Procedure, Sec. 17).
9.D. PROHIBITED PLEADINGS AND
MOTIONS
The following pleadings, motions or
petitions shall not be allowed in the cases
covered by the Rules on Summary
Procedure:
 Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the subject
matter, or failure to comply with the
preceding section;
 Motion for a bill of particulars;
 Motion for new trial, or for reconsideration of
a judgment, or for opening of trial;
 Q: What kind of Motion for
Reconsideration is prohibited?
A: The Court ruled that "The motion
prohibited by this Section is that which
seeks reconsideration of the judgment
rendered by the court after trial on the
merits of the case." Here, the order of
dismissal issued by respondent judge
due to failure of a party to appear
during the preliminary conference is
obviously not a judgment on the merits
after trial of the case. Hence, a motion
for the reconsideration of such order is
not the prohibited pleading
contemplated under Section 19 (c) of
the present Rule on Summary Procedure
(Gloria Lucas vs. Judge Amelia A. Fabros
A.M. No. MTJ-99-1226. January 31, 2000).
 Petition for relief from judgment;
584 Center for Legal Education and Research
 Motion for extension of time to file pleadings,
affidavits or any other paper;
 Memoranda;
 Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
 Motion to declare the defendant in default;
 Dilatory motions for postponement;
 Reply;
 Third party complaints;
 Interventions (Revised Rules on Summary
Procedure, Sec. 19).
9.E Appeal (Revised Rules on Summary Procedure,
Sec. 21)
The judgment or final order shall be appealable
to the appropriate regional trial court which shall
decide the same in accordance with Section 22
of Batas Pambansa Blg. 129.
The decision of the regional trial court in civil
cases governed by this Rule, including forcible
entry and unlawful detainer, shall be
immediately executory, without prejudice to a
further appeal that may be taken therefrom.
Section 10 of Rule 70 shall be deemed repealed.
The decision of the Regional Trial Court shall be
appealable to the Court of Appeals by petition
for review on an error of fact or law (Sec. 22, B.P.
129, as amended) under Rule 42 of the Rules of
Court.
10. KATARUNGANG PAMBARANGAY LAW
(Presidential Decree No. 1508)
It established a system of amicably settling
disputes at the barangay level. It was expressly
repealed by R.A. No. 7160(Local Government Code
of 1991). Most of its provisions, however, were
incorporated (with some modifications) under
Book III, Title I, Chapter VII of R.A. No. 7160.
 The primordial aim of the
KatarungangPambarangay Law is to reduce
the number of court litigations and prevent
the deterioration of the quality of justice
which has been brought about by the
indiscriminate filing of cases in the
 Purple Notes
Remedial Law
courts(Zamora vs. Heirs of Izquierdo, G.R. No. 8.) Those involving the traditions of indigenous
146195, November 18, 2004). cultural community.

10.A. CASES COVERED

10.B. SUBJECT MATTER FOR AMICABLE
SETTLEMENT
The Local Government Code or Republic Act
(R.A.) No. 7160 does not enumerate cases that
Disputes between or among parties who are
can be brought before the Barangay, but it
ACTUALLY RESIDING in the SAME CITY OR
enumerates cases which are exempted from the
MUNICIPALITY may be brought for amicable
Barangay conciliation proceedings and these
settlement before the lupon. (Sec. 408, R.A. No.
(Substantive Exceptions) are the following: 7160)

1. One party is the government or any

 The fact that the petitioner and private
subdivision or instrumentality;
respondent reside in the same municipality
2. One party is a public officer or employee,
does not justify compulsory conciliation
and the dispute relates to the performance of
where the other co-defendants reside in
his official functions;
barangays of different cities and
3. Offenses punishable by imprisonment
municipalities (Candido vs. Macapagal, G.R. No.
exceeding 1 year or fine exceeding Php.
101328, April 07, 1993).
5,000;
4. Offenses with no private offended party;
10.C. VENUE (Sec. 409, R.A. No. 7160)
5. Dispute involves real properties located in
different cities or municipalities UNLESS the
Disputes Venue
parties agree to submit dispute to amicable
Between persons Barangay where the
settlement by an appropriate lupon; actually residing in persons reside
6. Disputes involving parties who reside in the same barangay
barangays of different cities or municipalities Involving actual Barangay where the
EXCEPT when such barangay units adjoin residents of different respondent or any of
each other and parties thereto agree to barangays within the the respondents
submit their differences to amicable same city or actually resides, at the
settlement by an appropriate lupon; municipality election of the
7. Classes of dispute which the President may complainant
determine in the interest of justice; or, Involving real Barangay where the
property or any real property or the
8. One of the parties is a juridical entity.
interest therein larger portion thereof is
situated
Note: The prescriptive period for offenses and Arising at the Barangay where such
cause of action shall be interrupted upon filing workplace where the workplace or institution
of complaint with the punong barangay, but this contending parties is located
must not exceed 60 days. are employed or at
the institution where
Other Cases (Procedural Exceptions) such parties are
enrolled for study
1.) Accused is under police custody;
2.) Person has been deprived of personal liberty 10.D. WHEN PARTIES MAY DIRECTLY GO
thus calling for a habeas corpus proceeding; TO COURT
3.) Actions coupled with provisional remedies;
i. Where the accused is under detention;
4.) Action barred by prescription;
ii. Where a person has otherwise been deprived
5.) Labor disputes;
of personal liberty calling for habeas corpus
6.) As determined by the President in the
proceedings;
interest of justice;
iii. Actions coupled with provisional remedies
7.) CARL disputes;
such as preliminary injunction, attachment,

Bar Operations C ommissions 585

 Purple Notes
Remedial Law
delivery of personal property and support
pendente lite; and
iv. Where the action may otherwise be barred
by the Statute of Limitations. (Sec. 412, R.A.
No. 7160)
Parties to Barangay Conciliation
Proceedings
Only individuals shall be parties, either as
complainants or respondents. No complaint by
or against corporations, partnerships or other
juridical entities shall be filed, received or acted
upon (A.M. Circular No. 14-93, effective July 15,
1993).
Personal Appearance of Parties
General Rule: The parties must appear in
person in all
katarungangpambarangayproceedings and
without the assistance of counsel or
representatives.
Exception: Minors and incompetents may be
assisted by their next-of-kin who are not lawyers
(Sec. 415, R.A. No. 7160).
Brgy. Conciliation isnotin the nature of a
Judicial Proceeding
Legally, there is no barangay court. It is not
mentioned as one of the courts created by law
in B.P. 129, as amended, and other pertinent
laws on jurisdiction (Riano, Civil Procedure, Vol. I,
p. 182, 2014 ed.)
The LupongTagapamayapaor the Pangkat ng
Tagapagkasundoof the barangay do not have
inherent adjudicatory powers. They resolve
disputes or attempt to do so through amicable
settlement, conciliation and arbitration (Sec. 410,
412 and 413,R.A. No. 7160).
Any adjudicatory power exercised by the lupon
or the pangkatmust be agreed upon by the
parties in writing. Such agreement may involve
their willingness to abide by any arbitral award
given by the lupon or the pangkat(Sec. 411 and
413, R.A. No. 7160).
586 Center for Legal Education and Research
As a Pre-Condition for Filing a Complaint
in Court
No complaint, petition, action or proceeding
involving any matter within the authority of the
lupon shall be filed or instituted directly in court
or any government office for adjudication
UNLESS:
1) There has been a confrontation between the
parties before the lupon chairman or
pangkat; and,
2) No conciliation or settlement has been
reached or if one has been repudiated by the
parties thereto (Sec. 412, R.A. No. 7160).
Initiation of Proceedings
1. Upon payment of the appropriate filing
fee, any individual, who has a cause of
action against another individual, involving
any matter within the authority of the Lupon
may complain, orall,y or in writing, to the
Punong Barangay chairman of the Lupon(Sec.
410[a] and 399, R.A. No. 7160).
2.Upon receipt of the complaint, the
chairman shall summon the respondents
within the next working day to appear.
If the chairman fails in his mediation efforts
within fifteen (15) days from the first
meeting, he shall set a date to constitute the
Pangkat ng Tagapagkasundo(Sec. 410[b], R.A.
No. 7160).
Effect of failure to undergo Baranggay
Conciliation.
Failure to undergo the barangay conciliation
proceedings is non-compliance with a
condition precedent.The dismissal, if
proper, is one without prejudice[1991 Rule
on Summary Procedure, Sec. 18 and 19(a)].
No motu proprio dismissal
Failure to comply with the requirement of a
barangay conciliation is not among the grounds
mentioned under Rule 9, Sec. 1 for the dismissal
of a complaint on the initiative of the court
(Aquino vs. Aure, G.R. No. 153567, February 18,
2008).
 Purple Notes
Revival of a dismissed case
Where the case is dismissed for non-
compliance with the conciliation
proceedings, the dismissed case may be
revived only after such requirement shall have
been complied with (1991 Rule on Summary
Procedure, Sec. 18).
Defense of Non-Compliance, When
Deemed Waived
The non-referral of a case for barangay
conciliation is NOT jurisdictional and may,
therefore, be deemed waived if not raised
seasonably in a motion to dismiss (Sps. Santos vs.
Sps. Lumbao, G.R. No. 169129, March 28, 2007).
Effect of Amicable Settlement and Award
An amicable settlement reached after barangay
conciliation proceedings has the force and effect
of a final judgment of a court if not repudiated
or if no petition to nullify the same is filed
before the proper city or municipal court within
ten (10) days from its date (Chavez vs. CA, G.R.
No. 159411, March 18, 2005).
The court in which non-criminal cases not falling
within the authority of the Luponare filed may,
at any time before trial, motu proprio refer the
case to the Luponconcerned for amicable
settlement (Sec. 408, R.A. No. 7160).
Actions to Annul Judgment Upon a exceed Four Hundred Thousand Pesos
Compromise
Parties may, at any stage of the proceedings,
agree in writing to have the matter in dispute
decided by arbitration by either the Punong
Barangay or the Pangkat. Then, arbitrational
hearings shall follow the order of adjudicative
trials.
10.E. EXECUTION
The amicable settlement or award may be
enforced by execution, by the Lupon, within six
(6) months from the date of the
settlement.After the lapse of such time, the
settlement may be enforced by action in the
Remedial Law
appropriate city or municipal court (Sec. 417, R.A.
No. 7160)
10.F. REPUDIATION
A party to the dispute may, within Ten (10)
days from the date of the settlement,
repudiate the same by filing with the lupon
chairman a statement to that effect sworn to
before him, where the consent is vitiated by
fraud, violence, or intimidation. (Sec. 418,
R.A. No. 7160)
What is the effect of repudiation?
Such repudiation shall be sufficient basis for the
issuance of the certification for filing a
complaint. (Sec. 418, R.A. No. 7160)
11. REVISED RULES OF PROCEDURE FOR
SMALL CLAIMS CASES
11.A. SCOPE AND APPLICABILITY OF THE
RULE
Scope
The Revised Rule of Procedure for Small Claims
Cases shall govern the procedure in actions
before the Metropolitan Trial Courts (MeTCs),
Municipal Trial Courts in Cities (MTCCs),
Municipal Trial Courts (MTCs) and Municipal
Circuit Trial Courts (MCTCs) for payment of
money where the value of the claim does not
(P400,000.00) for the MeTCs and Three
Hundred Thousand Pesos (P300,000.00)
for the MTCCs, MTCs, and MCTCs), exclusive
of interest and costs(Sec.2, A.M. No. 08-8-7-SC, as
amended by OCA Circular No. 45-2019).
Notes:
 Plaintiff may join in a single statement of
claim one or more separate small claims
against a defendant provided that the total
amount claimed, exclusive of interest and
costs, does not exceed the jurisdictional
amount Four Hundred Thousand
Pesos(P400,000.00) for the MeTCs and
Three Hundred Thousand Pesos
Bar Operations C ommissions 587
 Purple Notes
Remedial Law
(P300,000.00) for the MTCCs, MTCs,
and MCTCs) (Sec.8, A.M. No. 08-8-7-SC, as
amended by OCA Circular No. 45-2019).
 Effective1 April 2019, the SC increased
the amount covered by Small Claims cases
to:
1. Php. 400,000 within Metro Manila; and,
2. Php. 300,000 outside Metro Manila (OCA
Circular No. 45-2019, effective April 1, 2019).
Actions Covered
All actions that are purely civil in nature where
the claim or relief prayed for by the plaintiff is
solely for payment or reimbursement of sum of
money (Sec. 5, A.M. No. 08-8-7-SC).
The claim or demand may be:
a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
b) For liquidated damages arising from
contracts;
c) The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule pursuant
to Sec. 417 of Republic Act 7160, otherwise
known as The Local Government Code of
1991.
 Liquidated Damages has reference to the
amount specified in the contract as the
compensation an aggrieved party should
receive in case other party breaches the
agreement.
11.B. COMMENCEMENT OF SMALL CLAIMS
ACTION; RESPONSE
Commencement of the Action
a) Filling up and filing a form called Statement
of Claim (Form 1-SCC) in duplicate.
b) The form should be verified.
c) Accompanied by:
588 Center for Legal Education and Research
1. Certification against Forum Shopping,
Splitting a Single Cause of Action and
Multiplicity of Suits (Form-I-A-SCC);
2. Two (2) duly certified photocopies of the
actionable document/s subject of the
claim; and
3. Affidavits of witnesses and other evidence
to support the claim (Sec.6, A.M. No. 08-8-
7-SC)
No formal pleading other than the Statement of
Claim is necessary to initiate a small claims
action (Sec. 6, A.M. No. 08-8-7-SC).
Notes:
 Submitting every evidence together with the
Form 1-SCC is a MANDATORY
requirement. Evidence not attached shall
notbe allowed during the hearing.
 The non-submission of the required
affidavits will cause the immediate dismissal
of the claim or counterclaim (Sec. 9, A.M. No.
08-8-7-SC).
Joinder of Parties
Plaintiff may join in a single statement of claim
one or more separate small claims against a
defendant provided that the total amount
claimed, exclusive of interest and costs, does
not exceed Two Hundred Thousand Pesos (Sec.
8, A.M. No. 08-8-7-SC, as amended).
Procedure in Small Claims Cases
1. Upon receipt of the Statement of Claim, the
court shall make a determination of whether
or not the same falls under the Rule.
The court may, by itself, dismiss the case on
any ground for the dismissal of a civil action
apparent from (i) the allegations of the
Claim; and, (ii) such evidence attached
thereto (Sec. 11, A.M. No. 08-8-7-SC).
2. If no ground for dismissal is found, the court
shall issue the Summons (Form 2-SCC)
directing the defendant to file a verified
Response.
 Purple Notes
Notice (Form 4-SCC) must also be issued
directing both parties to appear before the
court on a specific date and time for
hearing.(Sec. 12, A.M. No. 08-8-7-SC).
3. The defendant shall file his verified Response
with the court and serve the same on the
plaintiff within a non-extendible period of ten
(10) days from receipt of the Summons.(Sec.
13, A.M. No. 08-8-7-SC).The defendant may
also file a counterclaim in the Response. The
defendant shall be barred from suit on the
counterclaim if the same is not filed.(Sec. 15,
A.M. No. 08-8-7-SC).
If the defendant (i) fails to file his
Response within the required period; AND,
(ii) fails to appear at the date set for
hearing, the court shall render judgment on
the same day as may be warranted by the
facts alleged in the Statement of
Claim/s.(Sec. 14, A.M. No. 08-8-7-SC).
11.C. PROHIBITED PLEADINGS AND
MOTIONS
The following pleadings, motions, or petitions
shall not be allowed in the cases covered by the
Rules of Procedure in Small Claims Cases:
a) Motion to dismiss the Statement of Claim/s;
b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial;
d) Petition for relief from judgment;
e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
f) Memoranda;
g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
h) Motion to declare the defendant in default;
i) Dilatory motions for postponement;
j) Reply and rejoinder;
k) Third-party complaints; and
l) Interventions (Sec. 19, A.M. No. 08-8-7-SC).
11.D. APPEARANCES
The parties shall then appear at the hearing
personally.
Remedial Law
Appearance through a representative is allowed
only when a valid cause is shown. The
representative of an individual-party must not
be a lawyer and must be related to or next-of-
kin of the individual-party. Juridical entities shall
not be represented by a lawyer in any
capacity.(Sec. 18, A.M. No. 08-8-7-SC).
Note: No attorney shall appear in behalf of a
party or represent a party at the hearing, unless
he is the plaintiff or defendant (Sec. 19, A.M. No.
08-8-7-SC).
Effect of Non-Appearance of Parties(Sec. 20,
A.M. No. 08-8-7-SC).
Plaintiff is absent. The non-appearance of the
plaintiff shall be cause for the dismissal of the
claim WITHOUT prejudice. Also, the defendant
who appears shall be entitled to judgment on a
permissive counterclaim.
Defendant is absent. Failure of the defendant to
appear shall have the same effect as a failure to
file a Response.
Exception: When other defendants who are
sued under a common cause of action and have
pleaded a common defense appear at the
hearing (Sec. 18, A.M. No. 08-8-7-SC).
Both parties are absent. Failure of both parties
to appear shall cause the dismissal of both the
claim and counterclaim WITH prejudice (Sec. 18,
A.M. No. 08-8-7-SC).
11.E. HEARING; DUTY OF THE JUDGE
At the hearing, the judge shall exert efforts to
bring the parties to an amicable settlementof
their dispute. If efforts at settlement fail, the
hearing shall proceed and be conducted in an
informal and expeditious manner and shall be
terminated within the same day
Any settlement (Form 8-SCC) or resolution of
the dispute shall be reduced into writing, signed
by the parties and submitted to the court for
approval (Form 9-SCC and Form 10-SCC).(Sec.
23, A.M. No. 08-8-7-SC).
Bar Operations C ommissions 589
 Purple Notes
Remedial Law
11.F. FINALITY OF JUDGMENT Law Description
PD 1586 Establishing an Environmental Impact
After the hearing, the court shall render its Statement System Including Other
decision on the same day, based on the facts Environmental Management Related
Measures and for Other Purposes;
established by the evidence (Form 11-SCC).
RA 3571 Prohibition Against the Cutting,
Destroying or Injuring of Planted or
The Clerk of Court shall immediately enter the Growing Trees, Flowering Plants and
decision in the court docket for civil cases and a Shrubs or Plants of Scenic Value
copy thereof forthwith served on the parties along Public Roads, in Plazas, Parks,
(Sec. 24, A.M. No. 08-8-7-SC). School Premises or in any Other
Public Ground;
No appeal RA 4850 Laguna Lake Development Authority
Act;
The decision of the ourt shall be FINAL, RA 6969 Toxic Substances and Hazardous
EXECUTORY AND UNAPPEALABLE.(Sec. 24, A.M. Waste Act;
No. 08-8-7-SC). RA 7076 People‗s Small-Scale Mining Act;
RA 7586 National Integrated Protected Areas
Execution System Act including all laws,
decrees, orders, proclamations and
When the decision is rendered, execution shall issuances establishing protected
areas;
issue upon motion (Form 12-SCC) of the
RA 7611 Strategic Environmental Plan for
winning party.(Sec. 25, A.M. No. 08-8-7-SC)
Palawan Act;
RA 7942 Philippine Mining Act;
12. RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES(A.M. No. 09-6-8-SC, RA 8371 Indigenous Peoples Rights Act;
effective April 13, 2010) RA 8550 Philippine Fisheries Code;
RA 8749 Clean Air Act;
12.A.SCOPE AND APPLICABILITY OF THE
RA 9003 Ecological Solid Waste Management
RULE
Act;
RA 9072 National Caves and Cave Resource
These Rules shall govern the procedure in civil, Management Act
criminal and special civil actions before the RA 9147 Wildlife Conservation and Protection
Regional Trial Courts, Metropolitan Trial Courts, Act
Municipal Trial Courts in Cities, Municipal Trial RA 9175 Chainsaw Act
Courts and Municipal Circuit Trial Courts RA 9275 Clean Water Act
involving enforcement or violations of
RA 9483 Oil Spill Compensation Act of 2007
environmental and other related laws, rules and
regulations such as, but not limited to, the CA 141 The Public Land Act (some
following: provisions)
R.A. 6657 Comprehensive Agrarian Reform Law
of 1988
Law Description
RA 7160 Local Government Code of 1991
Act 3572 Prohibition Against Cutting of Tindalo,
Akli, and Molave Trees; RA 7161 Tax Laws Incorporated in the Revised
PD 705 Revised Forestry Code; Forestry Code and Other
PD 856 Sanitation Code; Environmental Laws (Amending the
PD 979 Marine Pollution Decree; NIRC);
PD 1067 Water Code; RA 7308 Seed Industry Development Act of
1992;
PD1151 Philippine Environmental Policy of RA 7900 High-Value Crops Development Act
1977;
PD 1433 Plant Quarantine Law of 1978; RA 8048 Coconut Preservation Act
RA 8435 Agriculture and Fisheries
Modernization Act of 1997

590 Center for Legal Education and Research

 Purple Notes
Law Description
RA 9522 The Philippine Archipelagic Baselines
Law
RA 9593 Renewable Energy Act of 2008
RA 9637 Philippine Biofuels Act; and Other
existing laws that relate to the
conservation, development,
preservation, protection and
utilization of the environment and
natural resources.
Objectives of the Rules (Sec. 3, Rule 1, Rules of
Procedure for Environmental Cases)
a) To protect and advance the constitutional
right of the people to a balanced and
healthful ecology;
b) To provide a simplified, speedy and
inexpensive procedure for the enforcement
of environmental rights and duties
recognized under the Constitution, existing
laws, rules and regulations, and international
agreements;
c) To introduce and adopt innovations and best
practices ensuring the effective enforcement
of remedies and redress for violation of
environmental laws; and
d) To enable the courts to monitor and exact
compliance with orders and judgments in
environmental cases.
Definition of Terms (Sec. 4, Rule 1, Rules of
Procedure for Environmental Cases)
(a) By-product or derivatives means any
part taken or substance extracted from
wildlife, in raw or in processed form including
stuffed animals and herbarium specimens.
(b) Consent decree refers to a judicially-
approved settlement between concerned
parties based on public interest and public
policy to protect and preserve the
environment.
(c) Continuing mandamus is a writ issued by
a court in an environmental case directing
any agency or instrumentality of the
government or officer thereof to perform an
act or series of acts decreed by final
judgment which shall remain effective until
judgment is fully satisfied.
Remedial Law
(d) Environmental protection order (EPO)
refers to an order issued by the court
directing or enjoining any person or
government agency to perform or desist
from performing an act in order to protect,
preserve or rehabilitate the environment.
(e) Mineral refers to all naturally occurring
inorganic substance in solid, gas, liquid, or
any intermediate state excluding energy
materials such as coal, petroleum, natural
gas, radioactive materials and geothermal
energy.
(f) Precautionary principle states that when
human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or
diminish that threat.
(g) Strategic lawsuit against public
participation (SLAPP) refers to an action
whether civil, criminal or administrative,
brought against any person, institution or
any government agency or local government
unit or its officials and employees, with the
intent to harass, vex, exert undue pressure
or stifle any legal recourse that such person,
institution or government agency has taken
or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental
rights.
(h) Wildlife means wild forms and varieties of
flora and fauna, in all developmental stages
including those which are in captivity or are
being bred or propagated.
12.B. CIVIL PROCEDURE(Part 2)
Who may file (Sec. 4, Rule 2, Part 2)
Any real party in interest, including the
government and juridical entities authorized by
law, may file a civil action involving the
enforcement or violation of any environmental
law.
Citizen suit (Sec. 5, Rule 2, Part 2)
Any Filipino citizen in representation of others,
including minors or generations yet unborn, may
Bar Operations C ommissions 591
 Purple Notes
Remedial Law
file an action to enforce rights or obligations
under environmental laws.
Upon the filing of a citizen suit, the court shall
issue an order which shall contain a brief
description of the cause of action and the reliefs
prayed for, requiring all interested parties to
manifest their interest to intervene in the case
within fifteen (15) days from notice thereof.
The plaintiff may publish the order once in a
newspaper of a general circulation in the
Philippines or furnish all affected barangays
copies of said order.
Contents of the Verified Complaint (Sec. 3,
Rule 2, Part 2)
a. names and addresses of the parties;
b. the cause of action;
c. the reliefs prayed for;
d. a statement that it is an environmental case;
e. the law involved; and,
f. the complaint shall include a certification
against forum shopping.
The plaintiff shall attach to the verified
complaint all evidence proving or supporting the
cause of action consisting of the affidavits of
witnesses, documentary evidence and if
possible, object evidence.
The affidavits shall be in question and answer
form and shall comply with the rules of
admissibility of evidence.
If the complaint is not an environmental
complaint, the presiding judge shall refer it to
the executive judge for re-raffle.
Prohibited Pleadings and Motions
The following pleadings or motions shall not be
allowed:
1) Motion for a bill of particulars;
2) Motion for extension of time to file pleadings,
except to file answer, the extension not to
exceed fifteen (15) days;
3) Motion to dismiss the complaint;
592 Center for Legal Education and Research
4) Motion to declare the defendant in default;
5) Reply and rejoinder; and
6) 3rd party complaint.
While the enumeration have been adopted in
part from the Rule on Summary Procedure in
response to the question of delay which often
accompanies regular cases, summary procedure
is not adopted in its entirety given the complex
and wide range of environmental cases. (Sec. 19,
Revised Rules on Summary Procedure)
Procedural safeguards have been introduced for
truly complex cases which may necessitate
further evaluation from the court. Among these
is the exclusion of the motions for
postponement, new trial and reconsideration, as
well as the petition for relief from the
prohibition.
Motion for postponement, motion for new trial
and petition for relief from judgment shall only
be allowed in certain conditions of highly
meritorious cases or to prevent a manifest
miscarriage of justice. The satisfaction of these
conditions is required since these motions are
prone to abuse during litigation.
Motion for intervention is permitted in order to
allow the public to participate in the filing and
prosecution of environmental cases, which are
imbued with public interest. Petitions for
certiorari are likewise permitted since these
raise fundamentally questions of jurisdiction.
Under the Constitution, the SC may not be
deprived of its certiorari jurisdiction(Annotation
to the Rules of Procedure for Environmental Cases,
pp. 108)
Service of the complaint upon the
government or its agencies (Sec. 6, Rule 2,
Part 2)
Upon the filing of the complaint, the plaintiff is
required to furnish the government or the
appropriate agency, although not a party, a
copy of the complaint. Proof of service upon
the government or the appropriate agency shall
be attached to the complaint.
Assignment by Raffle (Sec. 7, Rule 2, Part 2)
 Purple Notes
 If there is only one (1) designated branch in
a multiple-sala court, the executive judge
shall immediately refer the case to said
branch.
 If there are two (2) or more designated
branches, the executive judge shall conduct
a special raffle on the day the complaint is
filed.
Prohibition against Temporary
Restraining Order and Preliminary
Injunction (Sec. 10, Rule 2, Part 2)
No court can issue a TRO or writ of preliminary
injunction against lawful actions of government
agencies that enforce environmental laws or
prevent violations thereof, EXCEPT the
Supreme Court.(Sec. 10, OCA Circular No. 87-
2016,)
Payment of Filing and Other Legal Fees
(Sec. 12, Rule 2, Part 2)
General Rule: The payment of filing and other
legal fees by the plaintiff shall be deferred until
after judgment.
Exception: When the plaintiff is allowed to
litigate as an indigent. It shall constitute a first
lien on the judgment award.
Note: For a citizen suit, the court shall defer the
payment of filing and other legal fees that shall
serve as first lien on the judgment award.
Service of Summons, Orders and Other
Court Processes (Rule 2, Part 2, Sec. 13,)
 The summons shall be served on the
defendant, together with a copy of an order
informing all parties that they have fifteen
(15) days from the filing of an answer, within
which to avail of the modes of discovery.
 Should personal and substituted service fail,
summons by publication shall be allowed.
 In the case of juridical entities, summons by
publication shall be done by indicating the
names of the officers or their duly authorized
representatives.
Remedial Law
Verified Answer; Cross-claims and
Counterclaims (Rule 2, Part 2,Sec. 14)
 Within fifteen (15) days from receipt of
summons, the defendant shall file a verified
answer to the complaint and serve a copy
thereof on the plaintiff.
 The defendant shall attach affidavits of
witnesses, reports, studies of experts and all
evidence in support of the defense.
General Rule: Affirmative and special defenses
not pleaded shall be deemed waived.
Exception: Lack of jurisdiction.
Cross-claims and compulsory counterclaims not
asserted shall be considered barred. The answer
to counterclaims or cross-claims shall be filed
and served within ten (10) days from service of
the answer in which they are pleaded.
Effect of Failure to Answer (Rule 2, Part 2,Sec.
15,)
The court shall declare defendant in default and
upon motion of the plaintiff, shall receive
evidence ex parte and render judgment based
thereon and the reliefs prayed for.
Pre-Trial (Rule 3, Part 2)
Within two (2) days from the filing of the
answer to the counterclaim or cross-claim, if
any, the branch clerk of court shall issue a
notice of the pre-trial.
The pre-trial shall be held not later than one (1)
month from the filing of the last pleading.
The court shall schedule the pre-trial and set as
many pre-trial conferences as may be necessary
within a period of two (2) months counted from
the date of the first pre-trial conference.
The judge shall put the parties and their
counsels under oath, and they shall remain
under oath in all pre-trial conferences.
Bar Operations C ommissions 593
 Purple Notes
Remedial Law
The judge shall exert best efforts to persuade
the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree
approving the agreement between the parties in
accordance with law, morals, public order and
public policy to protect the right of the people to
a balanced and healthful ecology.
General Rule: Evidence not presented during
the pre-trial shall be deemed waived.
Exception: Newly-discovered evidence
Sec. 5, Rule 3 encourages parties to reach an
agreement regarding settlement through a
consent decree, which gives emphasis to the
public interest aspect in the assertion of the
right to a balances and healthful ecology.
Contents of the Pre-Trial Brief
1. A statement of their willingness to enter into
an amicable settlement indicating the
desired terms thereof or to submit the case
to any of the alternative modes of dispute
resolution;
2. A summary of admitted facts and proposed
stipulation of facts;
3. The legal and factual issues to be tried or
resolved. For each factual issue, the parties
shall state all evidence to support their
positions thereon. For each legal issue,
parties shall state the applicable law and
jurisprudence supporting their respective
positions thereon;
4. The documents or exhibits to be presented,
including depositions, answers to
interrogatories and answers to written
request for admission by adverse party,
stating the purpose thereof;
5. A manifestation of their having availed of
discovery procedures or their intention to
avail themselves of referral to a
commissioner or panel of experts;
6. The number and names of the witnesses
and the substance of their affidavits;
7. Clarificatory questions from the parties; and,
8. List of cases arising out of the same facts
pending before other courts or
administrative agencies. Failure to comply
594 Center for Legal Education and Research
with the required contents of a pre-trial brief
may be a ground for contempt.
Note: Failure to file the pre-trial brief shall have
the same effect as failure to appear at the pre-
trial.
Referral to Mediation (Rule 3, Part 2,Sec. 3)
At the start of the pre-trial conference, the court
shall inquire from the parties if they have settled
the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if
authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of
mediation.
If not available, the court shall refer the case to
the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-
extendible period of thirty (30) days from
receipt of notice of referral to mediation.
The mediation report must be submitted within
ten (10) days from the expiration of the 30-day
period.
If mediation fails, the court will schedule the
continuance of the pre-trial.
Before the scheduled date of continuance, the
court may refer the case to the branch clerk of
court for a preliminary conference.
Purposes of Preliminary Conference
a) To assist the parties in reaching a
settlement;
b) To mark the documents or exhibits to be
presented by the parties and copies thereof
to be attached to the records after
comparison with the originals;
c) To ascertain from the parties the undisputed
facts and admissions on the genuineness and
due execution of the documents marked as
exhibits;
d) To require the parties to submit the
depositions taken under Rule 23 of the Rules
 Purple Notes
of Court, the answers to written
interrogatories under Rule 25, and the
answers to request for admissions by the
adverse party under Rule 26;
e) To require the production of documents or
things requested by a party under Rule 27
and the results of the physical and mental
examination of persons under Rule 28;
f) To consider such other matters as may aid in
its prompt disposition;
g) To record the proceedings in the "Minutes of
Preliminary Conference" to be signed by both
parties or their counsels;
h) To mark the affidavits of witnesses which
shall be in question and answer form and
shall constitute the direct examination of the
witnesses; and,
i) To attach the minutes together with the
marked exhibits before the pre-trial proper.
When there is NO full settlement (Rule 3,
Part 2,Sec. 6)
The judge shall:
(a) Adopt the minutes of the preliminary
conference as part of the pre-trial
proceedings and confirm the markings of
exhibits or substituted photocopies and
admissions on the genuineness and due
execution of documents;
(b) Determine if there are cases arising out of
the same facts pending before other courts
and order its consolidation if warranted;
(c) Determine if the pleadings are in order and if
not, order the amendments if necessary;
(d) Determine if interlocutory issues are involved
and resolve the same;
(e) Consider the adding or dropping of parties;
(f) Scrutinize every single allegation of the
complaint, answer and other pleadings and
attachments thereto, and the contents of
documents and all other evidence identified
and pre-marked during pre-trial in
determining further admissions;
(g) Obtain admissions based on the affidavits of
witnesses and evidence attached to the
pleadings or submitted during pre-trial;
(h) Define and simplify the factual and legal
issues arising from the pleadings and
Remedial Law
evidence. Uncontroverted issues and
frivolous claims or defenses should be
eliminated;
(i) Discuss the propriety of rendering a
summary judgment or a judgment based on
the pleadings, evidence and admissions
made during pre-trial;
(j) Observe the Most Important Witness Rule in
limiting the number of witnesses,
determining the facts to be proved by each
witness and fixing the approximate number
of hours per witness;
(k) Encourage referral of the case to a trial by
commissioner under Rule 32 of the Rules of
Court or to a mediator or arbitrator under
any of the alternative modes of dispute
resolution governed by the Special Rules of
Court on Alternative Dispute Resolution;
(l) Determine the necessity of engaging the
services of a qualified expert as a friend of
the court (amicus curiae); and
(m) Ask parties to agree on the specific trial
dates for continuous trial, comply with the
one-day examination of witness rule, adhere
to the case flow chart determined by the
court which shall contain the different stages
of the proceedings up to the promulgation of
the decision and use the time frame for each
stage in setting the trial dates.
Trial (Rule 3, Part 2)
 The judge shall conduct continuous trial and
may ask the Supreme Court for the extension
of the trial period for justifiable cause.
 In lieu of direct examination, affidavits
marked during the pre-trial shall be
presented as direct examination of affiants
subject to cross-examination by the adverse
party.
 After the presentation of the last witness,
only oral offer of evidence shall be allowed,
and the opposing party shall immediately
interpose his objections. The judge shall
forthwith rule on the offer of evidence in
open court.
 After the last party has rested its case, the
court shall issue an order submitting the case
for decision. The court may require the
Bar Operations C ommissions 595
 Purple Notes
Remedial Law
parties to submit their respective are the subject matter of the TEPO even if
memoranda, if possible in electronic form, issued by the executive judge, and may lift
within a non-extendible period of thirty (30) the same at any time as circumstances may
days from the date the case is submitted for warrant.
decision. 4) The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO.
 The court shall have a period of sixty (60)
days to decide the case from the date the The Rules provide that an applicant who files for
case is submitted for decision. the issuance of a TEPO is exempt from the
 The court shall have a period of one (1) year posting of a bond, but the Rules also provide for
from the filing of the complaint to try and safeguards for the possible pernicious effects
decide the case. Before the expiration of the upon the party or person sought to be enjoined
one-year period, the court may petition the by the TEPO:
Supreme Court for the extension of the
period for justifiable cause. 1) A TEPO may only be issued in matters of
extreme urgency and the applicant will suffer
 The court shall prioritize the adjudication of grave injustice and irreparable injury,
environmental cases. 2) the TEPO is effective for only 72 hours; and
3) The court should periodically monitor the
One-day Examination of Witness Rule(Rule existence of acts which are the subject
4, Part 2,Sec. 3)
matter of the TEPO. The TEPO can also be
lifted anytime as the circumstances may
A witness has to be fully examined in one (1)
warrant.
day, subject to the court‘s discretion of
extending the examination for justifiable reason.
Note: While the TEPO may be issued ex parte,
The court shall strictly adhere to this rule.
this is more of the exception. The general rule
on the conduct of a hearing pursuant to due
TEMPORARYENVIRONMENTAL
process remains.
PROTECTION ORDER (TEPO)(Rule 2, Sec. 8)
Judgment and Execution (Rule 5, Part 2)
Issuance of Temporary Environmental
Protection Order
 Any judgment directing the performance of
acts for the protection, preservation or
If it appears from the verified complaint with a
rehabilitation of the environment shall be
prayer for the issuance of an Environmental
executory pending appeal unless restrained
Protection Order (EPO) that the matter is of
by the appellate court.
extreme urgency and the applicant will suffer
grave injustice and irreparable injury:
 A judgment rendered pursuant to these
Rules is immediately executory. It may not
1) The executive judge of the multiple sala
be stayed by the posting of a bond under
court before raffle or the presiding judge of a
Rule 39 of the Rules of Court and the sole
single-sala court as the case may be, may
remedy lies with the appellate court. The
issue ex parte a TEPO effective for only
appellate court can issue a TRO to restrain
seventy-two (72) hours from date of the
the execution of the judgment. Should the
receipt of the TEPO by the party or person
appellate court act with grave abuse of
enjoined.
discretion in refusing to act on the
2) Within said period, the court where the case
application for a TRO, a petition for certiorari
is assigned, shall conduct a summary hearing
under Rule 65 can be brought before the
to determine whether the TEPO may be
Supreme Court.
extended until the termination of the case.
3) The court where the case is assigned shall
periodically monitor the existence of acts that
596 Center for Legal Education and Research
 Purple Notes
 The court may, motuproprio, or upon motion
of the prevailing party, order that the
enforcement of the judgment or order be
referred to a commissioner to be appointed
by the court. The commissioner shall file with
the court written progress reports on a
quarterly basis or more frequently when
necessary.
 The process of execution shall terminate
upon a sufficient showing that the decision
or order has been implemented to the
satisfaction of the court in accordance with
Section 14, Rule 39 of the Rules of Court.
Reliefs in a Citizen’s Suit (Rule 5,Sec. 1)
If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection,
preservation or rehabilitation of the environment
and the payment of attorney‘s fees, costs of suit
and other litigation expenses.
It may also require the violator to submit a
program of rehabilitation or restoration of the
environment, the costs of which shall be borne
by the violator, or to contribute to a special trust
fund for that purpose subject to the control of
the court.
Permanent Environmental Protection
Order; Writ of Continuing Mandamus (, Rule
5, Part 2,Sec. 3)
1) In the judgment, the court may convert the
TEPO to a permanent EPO or issue a writ of
continuing mandamus directing the
performance of acts which shall be effective
until the judgment is fully satisfied.
2) The court may, by itself or through the
appropriate government agency, monitor the
execution of the judgment and require the
party concerned to submit written reports on
a quarterly basis or sooner as may be
necessary, detailing the progress of the
execution and satisfaction of the judgment.
The other party may, at its option, submit its
comments or observations on the execution
of the judgment.
3) In this provision, continuing mandamus is
made available as a final relief. As a remedy,
Remedial Law
continuing mandamus is decidedly an
attractive relief. Nevertheless, the monitoring
function attached to the writ is decidedly
taxing upon the court. Thus, it is meant to be
an exceptional remedy.
12.C. SPECIAL PROCEEDINGS
WRIT OF CONTINUING MANDAMUS
Continuing mandamus is a writ issued by a
court in an environmental case directing any
agency or instrumentality of the government or
officer thereof to perform an act or series of
acts decreed by final judgment which shall
remain effective until judgment is fully satisfied
(Sec. 4[c], Rule 1, Part 1).
The concept of continuing mandamus was
originally enunciated in the case of Concerned
Residents of Manila Bay vs. MMDA (G.R. No.
171947-98, December 18, 2008).
The Rules now codify the Writ of Continuing
Mandamus as one of the principal remedies
which may be availed of in environmental cases.
Availability
1. When any agency or instrumentality of the
government or officer thereof:
a. unlawfully neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust or
station in connection with the
enforcement or violation of an
environmental law rule or regulation or a
right therein; or,
b. unlawfully excludes another from the use
or enjoyment of such right; and
2. There is no other plain, speedy and adequate
remedy in the ordinary course of law.
How to Avail
The person aggrieved may file a verified petition
in the proper court.
Bar Operations C ommissions 597
 Purple Notes
Remedial Law
Contents and Form of Verified Petition
The petition must:
 Allege the facts with certainty;
 Be supported by evidence attached thereto;
 Specify that the petition concerns an
environmental law, rule or regulation;
 Contain a prayer that judgment be rendered
commanding the respondent to do an act or
series of acts until the judgment is fully
satisfied and to pay damages sustained by
the petitioner by reason of the malicious
neglect to perform the duties of the
respondent, under the law, rules or
regulations; and,
 Contain a sworn certification of non-forum
shopping.
Where to File the Petition
The petition shall be filed with the Regional Trial
Court exercising jurisdiction over the territory
where the actionable neglect or omission
occurred or with the Court of Appeals or the
Supreme Court.
The petitioner shall be exempt from the
payment of docket fees.
Order to Comment
If the petition is sufficient in form and
substance, the court shall issue the writ and
require the respondent to comment on the
petition within ten (10) days from receipt of a
copy thereof.
Such order shall be served on the respondents
in such manner as the court may direct,
together with a copy of the petition and any
annexes thereto.
Expediting Proceedings
The court in which the petition is filed may issue
such orders to expedite the proceedings, and it
may also grant a TEPO for the preservation of
the rights of the parties pending such
proceedings.
598 Center for Legal Education and Research
Proceedings after the comment is filed
After the comment is filed or the time for the
filing thereof has expired, the court may hear
the case which shall be summary in nature or
require the parties to submit memoranda.
The petition shall be resolved without delay
within sixty (60) days from the date of the
submission of the petition for resolution.
Judgment
If warranted, the court shall grant the privilege
of the 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 warranted
resulting from the wrongful or illegal acts of the
respondent.
The court shall require the respondent to
submit periodic reports detailing the progress
and execution of the judgment, and may, by
itself or through a commissioner or the
appropriate government agency, evaluate and
monitor compliance.
The petitioner may submit its comments or
observations on the execution of the judgment.
Return of the Writ
 Partial returns. The periodic reports
submitted by the respondent detailing
compliance with the judgment shall be
contained in partial returns of the writ.
 Final return. Upon full satisfaction of the
judgment, a final return of the writ shall be
made to the court by the respondent. If the
court finds that the judgment has been fully
implemented, the satisfaction of judgment
shall be entered in the court docket.
Notes:
 Procedurally, the filing before the courts of a
petition for the issuance of a writ of
continuing madamus is similar to the filing
of an ordinary writ of mandamus. However,
the issuance of a TEPO is made available as
 Purple Notes
an auxiliary remedy prior to the issuance of
the writ itself.
 As a special civil action, the Writ of
Continuing Mandamus may be availed of to
compel the performance of an act specifically
enjoined by law. It permits the court to
retain jurisdiction after judgment, in order to
ensure the successful implementation of the
reliefs mandated under the court‘s decision.
For this purpose, the court may compel the
submission of compliance reports from the
respondent government agencies as well as
avail of other means to monitor compliance
with its decision. Its availability as a special
civil action likewise complements its role as a
final relief in environmental civil cases and in
the Writ of Kalikasan, where continuing
mandamus may likewise be issued should
the facts merit such relief.
Strategic Lawsuit Against Public
Participation or SLAPP (Rule 6, Part 2)
Definition
SLAPP refers to an action, whether civil, criminal
or administrative, brought against any person,
institution or any government agency or local
government unit or its officials and employees,
with the intent to harass, vex, exert undue
pressure or stifle any legal recourse that such
person, institution or government agency has
taken or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental
rights (Sec. 4[g], Rule 1).
 How alleged as a defense. In a SLAPP
filed against a person involved in the
enforcement of environmental laws,
protection of the environment, or assertion
of environmental rights, the defendant may
file an answer interposing as a defense that
the case is a SLAPP and shall be supported
by documents, affidavits, papers and other
evidence; and, by way of counterclaim, pray
for damages, attorney‗s fees and costs of
suit.
 When alleged. Since a motion to dismiss is
a prohibited pleading, SLAPP as an
affirmative defense should be raised in an
Remedial Law
answer along with other defenses that may
be raised in the case alleged to be a SLAPP.
 Opposition. The court shall direct the
plaintiff or adverse party to file an
opposition showing the suit is not a SLAPP,
attaching evidence in support thereof,
within a non-extendible period of five (5)
days from receipt of notice that an answer
has been filed.
 Hearing; summary in nature. The
defense of a SLAPP shall be set for hearing
by the court after issuance of the order to
file an opposition within fifteen (15) days
from filing of the comment or the lapse of
the period.
 Evidence. The parties must submit all
available evidence in support of their
respective positions. The party seeking the
dismissal of the case must prove by
substantial evidence that his acts for the
enforcement of environmental law is a
legitimate action for the protection,
preservation and rehabilitation of the
environment. The party filing the action
assailed as a SLAPP shall prove by
preponderance of evidence that the action is
not a SLAPP and is a valid claim.
 Court action. The defense of a SLAPP shall
be resolved within thirty (30) days after the
summary hearing. If the court dismisses the
action, the court may award damages,
attorney‗s fees and costs of suit under a
counterclaim if such has been filed. The
dismissal shall be with prejudice. If the
court rejects the defense of a SLAPP, the
evidence adduced during the summary
hearing shall be treated as evidence of the
parties on the merits of the case. The action
shall proceed in accordance with the Rules
of Court.
WRIT OF KALIKASAN (Rule 7, Part 3)
The Writ of Kalikasan is a remedy.
Who may avail of the writ
a) natural or juridical person;
b) entity authorized by law;
c) people‘s organization;
d) non-governmental organization; or,
Bar Operations C ommissions 599
 Purple Notes
Remedial Law
e) any public interest group accredited by or
registered with any government agency
For whose behalf: on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated, or threatened with violation.
Threat or violation, how committed: by an
unlawful act or omission involving environmental
damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or
more cities or provinces.
Where to file: To the SC or any stations of the
CA. (Sec. 3, Rule 7)
Writ of Kalikasan, an extraordinary
remedy
The underlying emphasis in the Writ of
Kalikasan is magnitude as it deals with damage
that transcends political and territorial
boundaries.
Magnitude is thus measured according to the
qualification set forth in this Rule—when there is
environmental damage that prejudices the life,
health or property of inhabitants in two or more
cities or provinces.
Those who may file for this remedy must
represent the inhabitants prejudiced by the
environmental damage subject of the writ. The
requirement of accreditation of a group or
organization is for the purpose of verifying its
existence. The accreditation is a mechanism to
prevent fly by night groups from abusing the
writ.
Exemption from Payment of Docket Fees
(Rule 7,Sec. 4,)
The exemption from payment of docket fees is
consistent with the character of the reliefs
available under the writ, which excludes
damages for personal injuries. This exemption
also encourages public participation in availing
of the remedy.
Issuance of the Writ (Rule 7, Sec. 5
600 Center for Legal Education and Research
Within three (3) days from the date of filing of
the petition, if the petition is sufficient in form
and substance, the court shall give an order:
a) issuing the writ; and,
b) requiring the respondent to file a verified
return as provided in Section 8 of this Rule.
The clerk of court shall forthwith issue the writ
under the seal of the court including the
issuance of a cease and desist order and other
temporary reliefs effective until further order.
The writ shall be served upon the respondent by
a court officer or any person deputized by the
court, who shall retain a copy on which to make
a return of service. In case the writ cannot be
served personally, the rule on substituted
service shall apply (Rule 7, Sec. 6).
A clerk of court who unduly delays or refuses to
issue the writ after its allowance, or a court
officer or deputized person who unduly delays
or refuses to serve the same shall be punished
by the court for contempt without prejudice to
other civil, criminal or administrative actions
(Rule 7, Sec. 7).
Return of the Respondent (Rule 7, Sec. 8)
 Within a non-extendible period of ten (10)
days after service of the writ, the respondent
shall file a verified return.
 The return shall contain all defenses to show
that respondent did NOT:
a) violate or threaten to violate, or allow the
violation of any environmental law, rule or
regulation; or,
b) commit any act resulting to environmental
damage of such magnitude as to
prejudice the life, health or property of
inhabitants in two or more cities or
provinces.
 All defenses not raised in the return shall be
deemed waived.
 The return shall include affidavits of
witnesses, documentary evidence, scientific
or other expert studies, and if possible,
 Purple Notes
Remedial Law
object evidence, in support of the defense of  It shall state in detail the place or places
the respondent. to be inspected and shall be supported by
affidavits of witnesses having personal
Note: A general denial of allegations in the knowledge of the violation or threatened
petition shall be considered as an admission violation of environmental law.
thereof.
Order for Ocular Inspection
Effect of Failure to File Return (Rule 7, Sec.
10)
After hearing, the court may order any
person in possession or control of a
The court shall proceed to hear the petition ex
designated land or other property to permit
parte.
entry for the purpose of inspecting or
photographing the property or any relevant
Hearing (Rule 7, Sec. 11)
object or operation thereon.
The order shall:
Upon receipt of the return of the respondent,
the court may call a preliminary conference to
a) specify the person or persons authorized
simplify the issues, determine the possibility of
to make the inspection;
obtaining stipulations or admissions from the
b) specify the date, time, place and manner
parties, and set the petition for hearing.
of making the inspection;
After hearing, the court may punish the
c) it may prescribe other conditions to
respondent who refuses or unduly delays the
protect the constitutional rights of all
filing of a return, or who makes a false return,
parties.
or any person who disobeys or resists a lawful
process or order of the court for indirect
2. Production or Inspection of documents
contempt under Rule 71 of the Rules of Court
or things
(Rule 7, Sec. 13).
 The motion must show that a production
Prohibited Pleadings and Motions (Rule 7,
order is necessary to establish the
Sec. 9)
magnitude of the violation or the threat
as to prejudice the life, health or property
1) Motion to dismiss
of inhabitants in two or more cities or
2) Motion for extension of time to file return
provinces.
3) Motion for postponement
4) Motion for a bill of particulars
Production Order
5) Counterclaim or cross-claim
6) Third-party complaint
After hearing, the court may order any
7) Reply; and
person in possession, custody or control of
8) Motion to declare respondent in default.
any designated documents, papers, books,
accounts, letters, photographs, objects or
Discovery Measures (Rule 7, Sec. 12,)
tangible things, or objects in digitized or
electronic form, which constitute or contain
1. Ocular Inspection
evidence relevant to the petition or the
return, to produce and permit their
 A party may file a verified motion that
inspection, copying or photographing by or
must show that an ocular inspection order
on behalf of the movant.
is necessary to establish the magnitude of
The order shall:
the violation or the threat as to prejudice
the life, health or property of inhabitants
a) specify the person or persons authorized
in two or more cities or provinces.
to make the production;

Bar Operations C ommissions 601

 Purple Notes
Remedial Law
b) specify the date, time, place and manner (b) Directing the respondent public official,
of making the inspection or production; government agency, private person or entity
c) it may prescribe other conditions to to protect, preserve, rehabilitate or restore
protect the constitutional rights of all the environment;
parties.
(c) Directing the respondent public official,
 It is claimed that the Environmental government agency, private person or entity
Compliance Certificate (ECC) was issued in to monitor strict compliance with the decision
violation of rules. The Court ruled that the and orders of the court;
allegation cannot come within the coverage
of the writ of kalikasan because no causal (d) Directing the respondent public official,
link or reasonable connection was shown government agency, or private person or
between the defects in the issuances of ECC entity to make periodic reports on the
and the actual violation of constitutional execution of the final judgment; and,
right to balanced and healthful ecology (Paje
vs. Casiño, G.R. No. 207257, February 3, 2015).
(e) Such other reliefs which relate to the right of
 Petitioners sought directive from Court in
the people to a balanced and healthful
connection with the grounding of the USS
ecology or to the protection, preservation,
Guardian on Tubbataha Reefs. The Court
rehabilitation or restoration of the
ruled that since the US were sued in their
environment, EXCEPT the award of damages
official capacity, the principle of state
to individual petitioners.
immunity bars the exercise of jurisdiction by
Court. For recovery of damages, it should
not be raised in a writ of kalikasan petition Appeal (Rule 7,Sec. 16)
but through a separate civil suit (Arigo vs.
Swift, G.R. No. 206510, September 16, 2014). To the Supreme Court under Rule 45 of the
 Court ordered to cease and desist from Rules of Court, within fifteen (15) days from the
operating the leaking pipeline until further date of notice of the adverse judgment or denial
orders of the court. TEPO was based on a of motion for reconsideration. The appeal may
petition filed by the residents who claimed raise questions of fact.
to have suffered health and environmental
hazards (West Tower Condominium Corp. vs. Institution of Separate Actions (Rule 7, Sec.
First Phil. Industrial Corp., G.R. No. 194239, June 17,)
16, 2015).
The filing of a petition for the issuance of the
Judgment (Rule 7, Sec. 15)
writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
Within sixty (60) days from the time the petition
is submitted for decision, the court shall render
Writ of Kalikasan vs.
judgment granting or denying the privilege of
Writ of Continuing Mandamus
the writ of kalikasan.
Writ of
Reliefs that may be granted under the Writ of
Continuing
Writ of Kalikasan(Rule 7,Sec. 15) Kalikasan
Mandamus
Subject Unlawful neglect Unlawful act
(a) Directing respondent to permanently cease Matter in performance of or omission
and desist from committing acts or ministerial act. involving
neglecting the performance of a duty in environmental
damage of
violation of environmental laws resulting in
such
environmental destruction or damage; magnitude as
to prejudice

602 Center for Legal Education and Research

 Purple Notes
Remedial Law
the life, health b) When an offense has just been committed,
or property of and he has probable cause to believe based
inhabitants in on personal knowledge of facts or
two or more circumstances that the person to be arrested
cities or
has committed it.
provinces.
Who Aggrieved party. Broad range .
 The CFI ordered the seizure of two vessels
may file in connection with illegal fishing. The Court
Respond Government and Even private ruled that the seizure is valid because the
ent its officers. individual may vessel can be quickly moved out of the
be made locality or jurisdiction in which the search
respondent. warrant must be sought before such
Venue RTC/CA/SC SC/CA warrant could be secured (Roldan, Jr. vs.
Discover No provision. With specific Arca, G.R. No. L-25434, July 25, 1975).
y provision.
measure Strategic Lawsuit Against
s PublicParticipation (SLAPP)
Payment Allowed Not allowed
of
damages A motion to dismiss may be filed on the ground
that the criminal action is a SLAPP. There must
be a Summary Hearing before the resolution of
12.D. CRIMINAL PROCEDURE (Part 4) the motion.

Who may file (Rule 9,Sec. 1)
Any offended party, peace officer or any
public officer charged with the enforcement of
an environmental law
Institution of Criminal and Civil actions
(Rule 10,Sec. 1)
When a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action unless the
complainant waives the civil action, reserves the
right to institute it separately or institutes the
civil action prior to the criminal action.
Arrest Without Warrant; When Lawful (Rule
11, Sec. 1)
A peace officer or an individual deputized by the
proper government agency may, without a
warrant, arrest a person:
a) When, in his presence, the person to be
arrested has committed, is actually
committing or is attempting to commit an
offense; or,
Action of the court upon the motion to
dismiss
a) Grant the motion if the accused establishes
in the summary hearing that the criminal
case is a SLAPP.
b) If the court denies the motion, the court shall
immediately proceed with the arraignment of
the accused.
Procedure in Custody and Disposition of
Seized Items (Rule 12,Sec. 2)
In the absence of applicable laws or rules
promulgated by the concerned government
agency, the following procedure shall be
observed:
1) The apprehending officer having initial
custody and control of the seized items,
equipment, paraphernalia, conveyances and
instruments shall physically inventory and
whenever practicable, photograph the same
in the presence of the person from whom
such items were seized.
2) Thereafter, the apprehending officer shall
submit to the issuing court the return of the
search warrant within five (5) days from date
of seizure or in case of warrantless arrest,

Bar Operations C ommissions 603

 Purple Notes
Remedial Law
submit within five (5) days from date of
seizure, the inventory report, compliance
report, photographs, representative samples
and other pertinent documents to the public
prosecutor for appropriate action.
3) Upon motion by any interested party, the
court may direct the auction sale of seized
items, equipment, paraphernalia, tools or
instruments of the crime. The court shall,
after hearing, fix the minimum bid price
based on the recommendation of the
concerned government agency. The sheriff
shall conduct the auction.
4) The auction sale shall be with notice to the
accused, the person from whom the items
were seized, or the owner thereof and the
concerned government agency.
5) The notice of auction shall be posted in three
conspicuous places in the city or municipality
where the items, equipment, paraphernalia,
tools or instruments of the crime were
seized.
6) The proceeds shall be held in trust and
deposited with the government depository
bank for disposition according to the
judgment.
Bail (Rule 14, Part 4)
Where filed (Rule 14, Sec. 1)
a) court where the case is pending; or,
b) in the absence or unavailability of the judge
thereof, with any RTC judge, MeTC judge,
MTC judge or MCTC judge in the province,
city or municipality; or,
c) if the accused is arrested in a province, city
or municipality other than where the case is
pending, with any RTC of said place; or,
d) if no judge thereof is available, with any
MeTC, MTC or MCTC judge therein.
If the court grants bail, the court may issue a
hold-departure order in appropriate cases.
Duties of the court before granting the
application for bail (Rule 14, Sec. 2,)
1. Judge must read the information in a
language known to and understood by the
accused; and,
604 Center for Legal Education and Research
2. Require the accused to sign a written
undertaking, as follows:
a) To appear before the court that issued
the warrant of arrest for arraignment
purposes on the date scheduled, and if
the accused fails to appear without
justification on the date of arraignment,
accused waives the reading of the
information and authorizes the court to
enter a plea of not guilty on his behalf
and to set the case for trial;
b) To appear whenever required by the
court where the case is pending; and,
c) To waive the right of the accused to be
present at the trial, and upon failure of
the accused to appear without
justification and despite due notice, the
trial may proceed in absentia.
Arraignment (Rule 15, Sec. 1)
The court shall set the arraignment of the
accused within fifteen (15) days from the time it
acquires jurisdiction over the accused, with
notice to the public prosecutor and offended
party or concerned government agency that it
will entertain plea-bargaining on the date of the
arraignment.
Plea-bargaining (Sec. 2, Rule 15)
Where the prosecution and offended party or
concerned government agency agree to the plea
offered, court shall:
a) Issue an order which contains the plea-
bargaining arrived at;
b) Proceed to receive evidence on the civil
aspect of the case, if any; and
c) Render and promulgate judgment of
conviction, including the civil liability for
damages.
Pre-Trial (Rule 16,Sec. 1,)
After the arraignment, the court shall set the
pre-trial conference within thirty (30) days.
It may refer the case to the branch clerk of
court, if warranted, for a preliminary conference
 Purple Notes
to be set at least three (3) days prior to the pre-
trial.
Purposes of Preliminary Conference (Rule
16,Sec. 2,)
a) To assist the parties in reaching a settlement
of the civil aspect of the case;
b) To mark the documents to be presented as
exhibits;
c) To attach copies thereof to the records after
comparison with the originals;
d) To ascertain from the parties the undisputed
facts and admissions on the genuineness and
due execution of documents marked as
exhibits;
e) To consider such other matters as may aid in
the prompt disposition of the case;
f) To record the proceedings during the
preliminary conference in the Minutes of
Preliminary Conference to be signed by the
parties and counsel;
g) To mark the affidavits of witnesses which
shall be in question and answer form and
shall constitute the direct examination of the
witnesses; and
h) To attach the Minutes and marked exhibits to
the case record before the pre-trial proper.
The parties or their counsel must submit to
the branch clerk of court the names,
addresses and contact numbers of the
affiants.
Pre-trial Duty of the Judge (Rule 16, Sec. 3)
1) Place the parties and their counsels under
oath;
2) Adopt the minutes of the preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits or
substituted photocopies and admissions on
the genuineness and due execution of
documents, and list object and testimonial
evidence;
3) Scrutinize the information and the
statements in the affidavits and other
documents which form part of the record of
the preliminary investigation together with
other documents identified and marked as
Remedial Law
exhibits to determine further admissions of
facts as to:
a) The court‘s territorial jurisdiction relative
to the offense(s) charged;
b) Qualification of expert witnesses; and
c) Amount of damages;
4) Define factual and legal issues;
5) Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall contain
the time frames for the different stages of
the proceeding up to promulgation of
decision;
6) Require the parties to submit to the branch
clerk of court the names, addresses and
contact numbers of witnesses that need to
be summoned by subpoena; and,
7) Consider modification of order of trial if the
accused admits the charge but interposes a
lawful defense.
 Manner of questioning. All questions or
statements must be directed to the court
(Rule 16, Sec.4).
 Agreements or admissions. All
agreements or admissions made or entered
during the pre-trial conference shall be
reduced in writing and signed by the accused
and counsel; otherwise, they cannot be used
against the accused. The agreements
covering the matters referred to in Section 1,
Rule 118 of the Rules of Court shall be
approved by the court (Rule 16, Sec. 5,).
 Record of proceedings. All proceedings
during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed
by the parties or their counsels (Rule 16,Sec.
6,).
Pre-trial Order (Rule 16,Sec. 7,)
The court shall issue a pre-trial order within ten
(10) days after the termination of the pre-trial,
setting forth:
a) the actions taken during the pre-trial
conference;
b) the facts stipulated;
c) the admissions made;
Bar Operations C ommissions 605
 Purple Notes
Remedial Law
d) the evidence marked;
e) the number of witnesses to be presented;
and, the schedule of trial.
The order shall bind the parties and control the
course of action during the trial.
Subsidiary liability (Rule 18, Sec. )
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary liability
against a person or corporation subsidiary liable
under Article 102 and Article 103 of the Revised
Penal Code.
12.E. EVIDENCE (Part 5)
Precautionary Principle (Rule 20, Part 5)
Precautionary principle states that when human
activities may lead to threats of serious and
irreversible damage to the environment that is
scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.
Applicability (Rule 20, Sec. 1)
When there is a lack of full scientific certainty in
establishing a causal link between human
activity and environmental effect.
Note: The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt.
Standards for Application (Rule 20, Sec. 2)
a) Threats to human life or health;
b) Inequity to present or future generations;
and,
c) Prejudice to the environment without legal
consideration of the environmental rights of
those affected.
Documentary Evidence (Rule 21, Part 5)
1. Photographic, video and similar
evidence - Admissible when authenticated
by the person who took the same, by some
606 Center for Legal Education and Research
other person present when said evidence
was taken, or by any other person
competent to testify on the accuracy thereof
(Sec. 1, Rule 21).
2. Entries in official records made in the
performance of his duty by a public officer of
the Philippines, or by a person in
performance of a duty specially enjoined by
law, are prima facie evidence of the facts
therein stated (Sec. 2, Rule 21).
Illustrative Cases
 An appeal against the granting of license to
take and kill endangered fauna from an area
where a road was proposed to be
constructed is involved. Under precautionary
principle, consideration of the state of
knowledge or uncertainty regarding a
specie, the potential for serious or
irreversible harm is clearly consistent with
subject matter, scope, and purpose.
Precautionary principle is most apt in a
situation where there is a scarcity of
scientific knowledge of species population,
habitat and impact (Leatch vs. Director-General
of National Parks and Wildlife Service, NSWLEC
191, No. 10376 of 1993, November 23, 1993).
 Greenpeace asserted that air emissions from
the power station would exacerbate the
greenhouse effect. Applying the
precautionary principle, Greenpeace argued
that the court should refuse development
consent for the project. The Court held that
although application of the precautionary
principle dictates a cautious approach in
determining whether or not development
consent should be granted, the principle
does not require that the greenhouse gas
issue outweigh all other issues (Greeanpeace
Australia, Ltd. vs. Redbank Power Co., Land and
Environment Court of New South Wales, NSWLEC
178, ILDC 985, November 10, 1994).
 Due to the contrasting findings in hundreds
of scientific studies, the Court held that the
current scientific research indicates that the
biotech industry has not sufficiently
addressed the uncertainties over the safety
of genetically-modified foods and crops. The
uncertainty, possibility of irreversible harm
and possibility of serious harm warrant the
application of precautionary principle (Int‘l
 Purple Notes
Service for the Acquisition of Agri-Biotech
Applications, Inc. vs. Greenpeace Southeast Asia
(Phils.), G.R. No. 209271, July 26, 2016).
13. ALTERNATIVE DISPUTE RESOLUTION
13.A. TYPES OF PROCESSES AND
PROCEDURES IN ALTERNATIVE DISPUTE
RESOLUTION; COMPARISON WITH
COURT-ANNEXED MEDIATION
Alternative Dispute Resolution (ADR)
Any process or procedure used to resolve a
dispute or controversy, other than by
adjudication of a presiding judge of a court or
an officer of a government agency, as defined in
this Act, in which a neutral third party
participates to assist in the resolution of issues,
which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial,
or any combination thereof (Sec.3a, RA 9285).
Processes and Procedures
1. Arbitration
A voluntary dispute resolution process in
which one or more arbitrators, appointed in
accordance with the agreement of the
parties, or rules promulgated pursuant to this
Act, resolve a dispute by rendering an award
(Sec.3d, RA 9285).
2. Mediation
A voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assist
the parties in reaching a voluntary
agreement regarding a dispute (Sec.3q, RA
9285).
3. Conciliation
Adjustment and settlement of a dispute in a
friendly and non-antagonistic manner.
4. Neutral and early neutral evaluation
Remedial Law
Parties and their lawyers are brought
together to present summaries of their
cases and receive a non-binding assessment
by an experienced neutral person with
expertise in the subject or in the substance
of a dispute.
Note:Early neutral evaluation is availed of
early in the pre-trial phase.
5. Mini-trial
A structured dispute resolution method in
which the merits of a case are argued before
a panel comprising senior decision makers
with or without the presence of a neutral
third person after which the parties seek a
negotiated settlement (Sec.3u, RA 9285).
6. Any combination of the foregoing
7. Any other ADR form
Court Annexed Mediation
Any mediation process conducted under the
auspices of the court, after such court has
acquired jurisdiction of the dispute (Sec.3l, RA
9285).
13.B. DOMESTRIC ARBITRATION
Who may submit to Arbitration (Sec. 2, R.A.
No. 876)
• Two or more persons or parties may submit
to the arbitration of one or more arbitrators
any controversy existing between them; or
• The parties to any contract may in such
contract agree to settle by arbitration a
controversy thereafter arising between
them.
GR: A controversy cannot be arbitrated where
one of the parties to the controversy is an
infant, or a person judicially declared to be
incompetent,
Exception: The appropriate court having
jurisdiction approve a petition for permission to
submit such controversy to arbitration made by
Bar Operations C ommissions 607
 Purple Notes
Remedial Law
the general guardian or guardian ad litem of the
infant or of the incompetent.
Note: Where a person capable of entering into
a submission or contract has knowingly entered
into the same with a person incapable of so
doing, the objection on the ground of incapacity
can be taken only in behalf of the person so
incapacitated.
Limitation
This Act shall not apply to controversies and to
cases which are subject to the jurisdiction of the
Court of Industrial Relations or which have been
submitted to it as provided by Commonwealth
Act Numbered One hundred and three, as
amended (Sec. 3, R.A. No. 876).
Form of Arbitration Agreement
A contract to arbitrate a controversy thereafter
arising between the parties, as well as a
submission to arbitrate an existing controversy
shall be in writing and subscribed by the party
sought to be charged, or by his lawful agent
(Sec. 4, R.A. No. 876).
Jurisdiction and Venue
The making of a contract or submission for
arbitration, providing for arbitration of any
controversy, shall be deemed a consent of the
parties to the jurisdiction of the Court of First
Instance of the province or city where any of
the parties resides, to enforce such contract or
submission (Sec. 4, R.A. No. 876).
Prelliminary Procedure (Sec. 5, R.A. No. 876)
1. File demand for arbitration in accordance
with the contract. Such demand shall be set
forth the nature of the controversy, the
amount involved, if any, and the relief
sought, together with a true copy of the
contract providing for arbitration.
Contents of Demand to Arbitrate
a. the nature of the controversy;
b. the amount involved, if any;
608 Center for Legal Education and Research
c. the relief sought, together; and
d. A true copy of the contract providing for
arbitration.
2. In the event that one party defaults in
answering the demand, the aggrieved party
may file with the Clerk of the Court of First
Instance having jurisdiction over the parties,
a copy of the demand for arbitration under
the contract to arbitrate, with a notice that
the original demand was sent by registered
mail or delivered in person to the party
against whom the claim is asserted. Such
demand shall set forth the nature of the
controversy, the amount involved, if any, and
the relief sought, and shall be accompanied
by a true copy of the contract providing for
arbitration.
3. In the case of the submission of an existing
controversy by the filing with the Clerk of the
Court of First Instance having jurisdiction, of
the submission agreement, setting forth the
nature of the controversy, and the amount
involved, if any. Such submission may be
filed by any party and shall be duly executed
by both parties.
Note:
In the event that one party neglects, fails or
refuses to arbitrate under a submission
agreement, the aggrieved party shall follow the
procedure prescribed in (1) and (2).
Hearing by court(Sec. 6, R.A. No. 876)
A party aggrieved by the failure, neglect or
refusal of another to perform under an
agreement in writing providing for arbitration
may petition the court for an order directing that
such arbitration proceed in the manner provided
for in such agreement.
Five days notice in writing of the hearing of such
application shall be served either personally or
by registered mail upon the party in default.
• If the making of the agreement or such
failure to comply therewith is not in issue,
the court shall make an order directing the
 Purple Notes
parties to proceed to arbitration in
accordance with the terms of the agreement;
• If the making of the agreement or default be
in issue the court shall proceed to summarily
hear such issue;
• If the Court finds that there is no agreement
in writing providing for arbitration or that
there is no default in the proceeding
thereunder, the proceeding shall be
dismissed;
• If the Court finds that a written provision for
arbitration was made and there is a default
in proceeding thereunder, an order shall be
made summarily directing the parties to
proceed with the arbitration in accordance
with the terms thereof.
Stay of civil action
If any suit or proceeding be brought upon an
issue arising out of an agreement providing for
the arbitration thereof, the court in which such
suit or proceeding is pending, upon being
satisfied that the issue involved in such suit or
proceeding is referable to arbitration, shall stay
the action or proceeding until an arbitration has
been had in accordance with the terms of the
agreement: Provided, That the applicant, for the
stay is not in default in proceeding with such
arbitration (Sec. 7, R.A. No. 876).
Appointment of Arbitrators
GR: Agreement of the Parties
Exception: The Court of First Instance shall
appoint an arbitrator or arbitrators.
Instances when CFI shall appoint an arbitrator/s
1) If the parties to the contract or submission
are unable to agree upon a single arbitrator;
or
2) If an arbitrator appointed by the parties is
unwilling or unable to serve, and his
successor has not been appointed in the
manner in which he was appointed; or
3) If either party to the contract fails or refuses
to name his arbitrator within fifteen days
after receipt of the demand for arbitration; or
Remedial Law
4) If the arbitrators appointed by each party to
the contract, or appointed by one party to
the contract and by the proper Court, shall
fail to agree upon or to select the third
arbitrator.
5) The court shall, in its discretion appoint one
or three arbitrators, according to the
importance of the controversy involved in
any of the preceding cases in which the
agreement is silent as to the number of
arbitrators.
6) Arbitrators appointed under this section shall
either accept or decline their appointments
within seven days of the receipt of their
appointments. In case of declination or the
failure of an arbitrator or arbitrators to duly
accept their appointments the parties or the
court, as the case may be, shall proceed to
appoint a substitute or substitutes for the
arbitrator or arbitrators who decline or failed
to accept his or their appointments (Sec. 8,
R.A. No. 876).
Qualifications of Arbitrators
1. Must be of legal age;
2. In full-enjoyment of his civil rights and know
how to read and write;
3. Not related by blood or marriage within the
sixth degree to either party to the
controversy;
4. No financial, fiduciary or other interest in the
controversy or cause to be decided or in the
result of the proceeding, or has any personal
bias, which might prejudice the right of any
party to a fair and impartial award;
5. No party shall select as an arbitrator any
person to act as his champion or to advocate
his cause (Sec. 10, R.A. No. 876).
Note:
• The arbitrators may be challenged only for
the reasons mentioned which may have
arisen after the arbitration agreement or
were unknown at the time of arbitration
(Sec.11, R.A. No. 876).
• If they do not yield to the challenge, the
challenging party may renew the challenge
before the Court of First Instance of the
province or city in which the challenged
Bar Operations C ommissions 609
 Purple Notes
Remedial Law
arbitrator, or, any of them, if there be more
than one, resides (Sec. 11, R.A. No. 876).
Subpoena and subpoena duces tecum
1. Arbitrators shall have the power to require
any person to attend a hearing as a witness;
2. They shall have the power to subpoena
witnesses and documents when the
relevancy of the testimony and the
materiality thereof has been demonstrated to
the arbitrators;
3. Arbitrators may also require the retirement of
any witness during the testimony of any
other witness.
4. All of the arbitrators appointed in any
controversy must attend all the hearings in
that matter and hear all the allegations and
proofs of the parties;
Note: An award by the majority of them is
valid unless the concurrence of all of them is
expressly required in the submission or
contract to arbitrate.
5. The arbitrator or arbitrators shall have the
power at any time, before rendering the
award, without prejudice to the rights of any
party to petition the court to take measures
to safeguard and/or conserve any matter
which is the subject of the dispute in
arbitration (Sec. 14, R.A. No. 876).
Hearing by Arbitrators
The arbitrators shall be the sole judge of the
relevancy and materiality of the evidence
offered or produced, and shall not be bound to
conform to the Rules of Court pertaining to
evidence (Sec. 15, R.A. No. 876).
Time for rendering award
GR: the written award of the arbitrators shall be
rendered within thirty days after the closing of
the hearings or if the oral hearings shall have
been waived, within thirty days after the
arbitrators shall have declared such proceedings
in lieu of hearing closed;
610 Center for Legal Education and Research
Exceptions:
a) The parties have stipulated by written
agreement the time within which the
arbitrators must render their award; or
b) The period may be extended by mutual
consent of the parties (Sec. 19, R.A. No. 876).
Form and contents of award
1. Award must be made in writing and signed
and acknowledged by a majority of the
arbitrators, if more than one; and by the sole
arbitrator, if there is only one;
2. Each party shall be furnished with a copy of
the award
3. Arbitrators in their award may grant any
remedy or relief which they deem just and
equitable and within the scope of the
agreement of the parties, which shall include,
but not be limited to, the specific
performance of a contract.
Notes:
• In the event that the parties to an arbitration
have, during the course of such arbitration,
settled their dispute, they may request of the
arbitrators that such settlement be embodied
in an award which shall be signed by the
arbitrators.
• No arbitrator shall act as a mediator in any
proceeding in which he is acting as
arbitrator; and all negotiations towards
settlement of the dispute must take place
without the presence of the arbitrators.
• The arbitrators shall have the power to
decide only those matters which have been
submitted to them. The terms of the award
shall be confined to such disputes;
• The arbitrators shall have the power to
assess in their award the expenses of any
party against another party, when such
assessment shall be deemed necessary
(Sec.20, R.A. No. 876).
Confirmation of award
At any time within one month after the award is
made, any party to the controversy which
wasarbitrated may apply to the court having
 Purple Notes
jurisdiction, as provided in section twenty-eight,
for an order confirming the award; and
thereupon the court must grant such order
unless the award is vacated, modified or
corrected, as prescribed herein. Notice of such
motion must be served upon the adverse party
or his attorney as prescribed by law for the
service of such notice upon an attorney in action
in the same court (Sec. 23, R.A. No. 876).
Grounds for vacating award
1) The award was procured by corruption,
fraud, or other undue means; or
2) That there was evident partiality or
corruption in the arbitrators or any of them;
or
3) That the arbitrators were guilty of
misconduct in refusing to postpone the
hearing upon sufficient cause shown, or in
refusing to hear evidence pertinent and
material to the controversy; that one or more
of the arbitrators was disqualified to act as
such under section nine hereof, and
wilfullyrefrained from disclosing such
disqualifications or of any other misbehavior
by which the rights of any party have been
materially prejudiced; or
4) That the arbitrators exceeded their powers,
or so imperfectly executed them, that a
mutual, final and definite award upon the
subject matter submitted to them was not
made (Sec. 24, R.A. No. 876).
Note:
Where an award is vacated, the court, in its
discretion, may:
• direct a new hearing either before the same
arbitrators or before a new arbitrator or
arbitrators to be chosen in the manner; or
• Provided in the submission or contract for
the selection of the original arbitrator or
arbitrators, and any provision limiting the
time in which the arbitrators may make a
decision shall be deemed applicable to the
new arbitration and to commence from the
date of the court's order (Sec. 24, R.A. No.
876).
Remedial Law
Grounds for modifying or correcting award
1) Where there was an evident miscalculation of
figures, or an evident mistake in the
description of any person, thing or property
referred to in the award; or
2) Where the arbitrators have awarded upon a
matter not submitted to them, not affecting
the merits of the decision upon the matter
submitted; or
3) Where the award is imperfect in a matter of
form not affecting the merits of the
controversy, and if it had been a
commissioner's report, the defect could have
been amended or disregarded by the court
(Sec. 25, R.A. No. 876).
Motion to vacate, modify or correct award:
When made
Notice of a motion to vacate, modify or correct
the award must be served upon the adverse
party or his counsel within thirty days after
award is filed or delivered, as prescribed by law
for the service upon an attorney in an action
(Sec. 26, R.A. No. 876).
Judgment
Upon the granting of an order confirming,
modifying or correcting an award, judgment
may be entered in conformity therewith in the
court wherein said application was filed (Sec. 27,
R.A. No. 876).
Papers to accompany motion to confirm,
modify, correct, or vacate award
a. The submission, or contract to arbitrate; the
appointment of the arbitrator or arbitrators;
and each written extension of the time, if
any, within which to make the award.
b. A verified of the award.
c. Each notice, affidavit, or other paper used
upon the application to confirm, modify,
correct or vacate such award, and a copy of
each of the court upon such application (Sec.
28, R.A. No. 876).
Note: The judgment so entered shall have the
same force and effect in all respects, as, and be
Bar Operations C ommissions 611
 Purple Notes
Remedial Law
subject to all the provisions relating to, a
judgment in an action; and it may be enforced
as if it had been rendered in the court in which
it is entered (Sec. 28, R.A. No. 876).
Appeals
An appeal may be taken from an order made in
a proceeding under this Act, or from a judgment
entered upon an award through certiorari
proceedings, but such appeals shall be limited to
questions of law. The proceedings upon such an
appeal, including the judgment thereon shall be
governed by the Rules of Court in so far as they
are applicable (Sec. 29, R.A. No. 876).
13.C. JUDICIAL REVIEW OF ARBITRAL
AWARDS
Domestic Arbitral Awards
Nature of Proceedings
Nature of the proceedings for recognition and
enforcement of an arbitration agreement or for
vacation, setting aside, correction or
modification of an arbitral award, and any
application with a court for arbitration assistance
and supervision shall be deemed as Special
Proceedings.
Where to file- Regional Trial Court
a) Where arbitration proceedings are conducted;
b) Where the asset to be attached or
leviedupon, or the act to be enjoined is
located;
c) Where any of the parties to the dispute
resides or has his place of business; or
d) In the National Judicial Capital Region, at the
option of the applicant.
Notice of Proceedings to Parties
In a special proceeding for recognition and
enforcement of an arbitral award, the Court
shall send notice to the parties at their address
of record in the arbitration, or if any party
cannot be served notice at such address, at
such party's last known address. The notice
shall be sent at least fifteen (15) days before
612 Center for Legal Education and Research
the date set for the initial hearing of the
application (Sec.48, RA 9285).
Confirmation of Domestic Arbitral Award
The confirmation of a domestic arbitral award
shall be governed by Section 23 of R.A. 876
(Sec.40, RA 9285).
At any time within one month after the award is
made, any party to the controversy which was
arbitrated may apply to the court having
jurisdiction, as provided in section twenty-eight,
for an order confirming the award; and
thereupon the court must grant such order
unless the award is vacated, modified or
corrected, as prescribed herein. Notice of such
motion must be served upon the adverse party
or his attorney as prescribed by law for the
service of such notice upon an attorney in action
in the same court (Sec.23, RA 876).
Note:A CIAC arbitral award need not be
confirmed by the Regional Trial Court to be
executory as provided under E.O. No. 1008(Sec.
40, RA 9285).
 Q. Did R.A. 9285 and the Special Rules on
Alternative Dispute Resolution have
stripped the Court of Appeals of jurisdiction
to review arbitral awards?
A. The Supreme Court holds that R.A. 9285
did not confer on Regional Trial Courts
jurisdiction to review awards or decisions of
the CIAC in construction disputes. On the
contrary, Section 40 thereof expressly
declares that confirmation by the RTC is not
required. (J Plus Asia Development Corporation
vs. Utility Assurance Corporation, GR No. 199650,
June 26, 2013).
Vacation Award
A party to a domestic arbitration may question
the arbitral award with the appropriate regional
trial court in accordance with the rules of
procedure to be promulgated by the Supreme
Court only on those grounds enumerated in
 Purple Notes
Section 25 of Republic Act No. 876. Any other
ground raised against a domestic arbitral award
shall be disregarded by the regional trial court
(Sec.41, RA 9285).
Grounds for Modifying or Correcting
Award
In any one of the following cases, the court
must make an order modifying or correcting the
award, upon the application of any party to the
controversy which was arbitrated:
1. Where there was an evident miscalculation of
figures, or an evident mistake in the
description of any person, thing or property
referred to in the award; or
2.Where the arbitrators have awarded upon a
matter not submitted to them, not affecting
the merits of the decision upon the matter
submitted; or
3.Where the award is imperfect in a matter of
form not affecting the merits of the
controversy, and if it had been a
commissioner's report, the defect could have
been amended or disregarded by the court.
Note: The order may modify and correct the
award so as to effect the intent thereof and
promote justice between the parties (Sec.25, RA
876).
Foreign Arbitral Awards
New York Convention
The New York Convention shall govern the
recognition and enforcement of arbitral awards
covered by the said Convention (Sec. 42, RA
9285).
Where to File Recognition and
Enforcement
The recognition and enforcement of such
arbitral awards shall be filled with regional trial
court in accordance with the rules of procedure
to be promulgated by the Supreme Court (Sec.
42, RA 9285).
Remedial Law
Not Covered by the New York Convention
The recognition and enforcement of foreign
arbitral awards not covered by the New York
Convention shall be done in accordance with
procedural rules to be promulgated by the
Supreme Court. The Court may, grounds of
comity and reciprocity, recognize and enforce a
nonconvention award as a convention award
(Sec. 43, RA 9285).
Rejection of a Foreign Arbitral Award
A party to a foreign arbitration proceeding may
oppose an application for recognition and
enforcement of the arbitral award in accordance
with the procedural rules to be promulgated by
the Supreme Court only on those grounds
enumerated under Article V of the New York
Convention. Any other ground raised shall be
disregarded by the regional trial court (Sec. 45,
RA 9285).
Note:A foreign arbitral award when confirmed
by a court of a foreign country, shall be
recognized and enforced as a foreign arbitral
award and not a judgment of a foreign court
(Sec. 44, RA 9285).
Q. Whether or not the stipulation in the
arbitration clause that foreign arbitral award
shall be final and binding ousts the courts of
jurisdiction?
A. No. R.A. 9285 provides on how to enforce a
foreign arbitral award in this jurisdiction. These
are as follows: a. The RTC must refer to
arbitration in proper cases; b. Foreign Arbitral
awards must be confirmed by the RTC. When
confirmed by the RTC, it is deemed not as a
judgment of the foreign court but as a foreign
arbitral award and enforced as final and
executory decisions of our courts of law; c. RTC
has jurisdiction to review foreign arbitral
awards; d. Grounds for judicial review different
in domestic and foreign arbitral awards; e. RTC
decision of assailed foreign arbitral award
appealable. (Korea Technologies Co., Ltd. v. Lerma,
GR No. 143581, January 7, 2008).
Bar Operations C ommissions 613
 Purple Notes
Remedial Law
13.D. APPEAL FROM COURT DECISIONS
ON ARBITRAL AWARDS
A decision of the regional trial court confirming,
vacating, setting aside, modifying or correcting
an arbitral award may be appealed to the Court
of Appeals in accordance with the rules of
procedure to be promulgated by the Supreme
Court (Sec. 46, RA 9285).
13.E. VENUE AND JURISDICTION
The parties are free to agree on the place of
arbitration. Failing such agreement, the place of
arbitration shall be in Metro Manila, unless the
arbitral tribunal, having regard to the
circumstances of the case, including the
convenience of the parties shall decide on a
different place of arbitration.
The arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it
considers appropriate for consultation among its
members, for hearing witnesses, experts, or the
parties, or for inspection of goods, other
property or documents (Sec. 30, RA 9285).
13.F. SPECIAL RULES OF COURT ON
ALTERNATIVE DISPUTE RESIOLUTION
(A.M. No. 07-11-08-SC, September 1, 2009)
This Special Rule of Court took effect on
October 30, 2009.
What is the nature of proceedings under
these Rules?
All proceedings under the Special ADR rules are
special proceedings(Rule 1.2., Rule 1, Special ADR
Rules).
13.F.1. SUBJECT MATTER
This rule shall apply to and govern the following
cases:
B. Relief on the issue of Existence,
Validity, or Enforceability of the
Arbitration Agreement
614 Center for Legal Education and Research
This is a judicial relief in Rule 3 of Special ADR,
a petition for judicial determination of existence,
validity and/or enforceability of an arbitration
agreement. This judicial relief is applicable only
to arbitration proceedings conducted in the
Philippines (p. 161-162, Alternative Dispute
Resolution, 2015 Revised Edition, Justice Gabriel T.
Robeniol).
C. Referral to Alternative Dispute
Resolution ("ADR")
This actually pertains to the referral of a
pending court action to arbitration rather than
any other form of ADR. The situation
contemplated by this Rule is where:
i. There is already a pending action
ii.There is either a pre-action arbitration
agreement or a present-action arbitration
agreement; and
iii.Oneor both parties desire to undergo
arbitration (p. 170, Alternative Dispute
Resolution, 2015 Revised Edition, Justice
Gabriel T. Robeniol).
Form of Request for Referral
The request for referral shall be in the form of a
motion, which shall state that the dispute is
covered by an arbitration agreement.
The movant shall attach to his motion an
authentic copy of the arbitration agreement
(Rule 4.3, Rule 4, Special ADR Rules).
No reconsideration, appeal or certiorari
An order referring the dispute to arbitration shall
be immediately executory and shall not be
subject to a motion for reconsideration, appeal
or petition for certiorari.
An order denying the request to refer the
dispute to arbitration shall not be subject to an
appeal, but may be the subject of a motion for
reconsideration and/or a petition for certiorari
(Rule 4.6, Rule 4, Special ADR Rules).
 Purple Notes
Pre-Action vs. Present- Action Arbitration
Agreement
This classification of arbitration agreement is
based on the time of execution relative to the
filing of action. The arbitration is pre-action if
executed prior to the filing of an action and it is
present-action if executed after the filing of an
action (p. 170, Alternative Dispute Resolution, 2015
Revised Edition, Justice Gabriel T. Robeniol).
Pre-causal vs. Present-causal Arbitration
Agreement
This classification of arbitration agreement is
based on the time of execution relative to the
existence of dispute. A pre-causal arbitration
agreement, also known as an agreement to
submit to arbitration, are those entered into
prior to existence of dispute. On the otherhand,
present-causal arbitration agreement, known as
submission agreement, are those entered into
while there is already an existing dispute (p. 170,
Alternative Dispute Resolution, 2015 Revised Edition,
Justice Gabriel T. Robeniol).
Importance of Distinguishing Arbitration
Agreements
The timing of referral to ADR depends on the
nature of the agreement.
For a pre-action arbitration agreement, either
agreement to submit or submission agreement,
the request for referral to arbitration may be
made by any one of the parties not later than
the pre-trial conference. Requests made after
pre-trial must be with agreement of both
parties.
On the otherhand, for a present-action
arbitration agreement, which is necessarily a
submission agreement, request of referral to
arbitration can be made at anytimeduring the
proceedings (p. 170-171, Alternative Dispute
Resolution, 2015 Revised Edition, Justice Gabriel T.
Robeniol).
 Q. What are the legal effects of non-
application of arbitration clause?
Remedial Law
A. The non-application of arbitration clause
are as follows:
1.The judicial proceedings conducted
beyond the point when dispute should
have been referred to arbitration are
rendered invalid
2.The decisions, including those of
appellate courts, must be vacated and
set aside
3. The case must be remanded to the a
quo to be suspended at said point
4.The petitioner and respondent must then
be referred to arbitration pursuant to
the arbitration clause (Koppel Inc., vs.
Makati Rotary Club Foundation, Inc., GR No.
198075, September 4, 2013).
3. Interim Measures of Protection
A petition for an interim measure of protection
may be made:
a.Before arbitration is commenced
b.After arbitration is commenced, but before the
constitution of the arbitral tribunal, or
c. After the constitution of the arbitral tribunal
and at any time during arbitral proceedings
but, at this stage, only to the extent that the
arbitral tribunal has no power to act or is
unable to act effectively(Rule 5.2, Rule 5,
Special ADR Rules).
4. Appointment of Arbitrator
The court shall act as Appointing Authority only
in the following instances:
a. Where any of the parties in an institutional
arbitration failed or refused to appoint an
arbitrator or when the parties have failed to
reach an agreement on the sole arbitrator (in an
arbitration before a sole arbitrator) or when the
two designated arbitrators have failed to reach
an agreement on the third or presiding
arbitrator (in an arbitration before a panel of
three arbitrators), and the institution under
whose rules arbitration is to be conducted fails
or is unable to perform its duty as appointing
Bar Operations C ommissions 615
 Purple Notes
Remedial Law
authority within a reasonable time from receipt
of the request for appointment;
b. In all instances where arbitration is ad hoc
and the parties failed to provide a method for
appointing or replacing an arbitrator, or
substitute arbitrator, or the method agreed upon
is ineffective, and the National President of the
Integrated Bar of the Philippines (IBP) or his
duly authorized representative fails or refuses to
act within such period as may be allowed under
the pertinent rules of the IBP or within such
period as may be agreed upon by the parties, or
in the absence thereof, within thirty (30) days
from receipt of such request for appointment;
c. Where the parties agreed that their dispute
shall be resolved by three arbitrators but no
method of appointing those arbitrators has been
agreed upon, each party shall appoint one
arbitrator and the two arbitrators thus appointed
shall appoint a third arbitrator. If a party fails to
appoint his arbitrator within thirty (30) days of
receipt of a request to do so from the other
party, or if the two arbitrators fail to agree on
the third arbitrator within a reasonable time
from their appointment, the appointment shall
be made by the Appointing Authority. If the
latter fails or refuses to act or appoint an
arbitrator within a reasonable time from receipt
of the request to do so, any party or the
appointed arbitrator/s may request the court to
appoint an arbitrator or the third arbitrator as
the case may be (Rule 6.1, Rule 6, Special ADR
Rules).
Venue
The petition for appointment of arbitrator may
be filed, at the option of the petitioner, in the
Regional Trial Court:
a)where the principal place of business of any of
the parties is located,
b) if any of the parties are individuals, where
those individuals reside, or
c) in the National Capital Region (Rule 6.3, Rule 6,
Special ADR Rules).
616 Center for Legal Education and Research
When Dismissed
When there is a pending petition in another
court to declare the arbitration agreement
inexistent, invalid, unenforceable, on account of
which the respondent failed or refused to
participate in the selection and appointment of a
sole arbitrator or to appoint a party-nominated
arbitrator, the petition filed under this rule shall
be dismissed (Rule 6.8, Rule 6, Special ADR Rules).
No reconsideration, appeal or certiorari
If the court appoints an arbitrator, the order
appointing an arbitrator shall be immediately
executory and shall not be the subject of a
motion for reconsideration, appeal or certiorari.
An order of the court denying the petition for
appointment of an arbitrator may, however, be
the subject of a motion for reconsideration,
appeal or certiorari (Rule 6.9, Rule 6, Special ADR
Rules).
5. Challenge to Appointment of
Arbitrator
Who may File
Any of the parties to an arbitration may
challenge an arbitrator.
When Challenge May be Raised
The rules of procedure on the judicial challenge
to the appointment of arbitrators apply to the
following situation:
a. The challenge to the appointment of an
arbitrator before the arbitral tribunal is not
successful, and the appointing authority fails
or refuses to act on the challenge within such
period of time as may be allowed under the
applicable rule or, in the absence thereof,
within thirty (30) days from receipt of
request; and
b. The aggrieved party wants to secure judicial
action on the challenge (p. 181, Alternative
Dispute Resolution, 2015 Revised Edition, Justice
Gabriel T. Robeniol).
 Purple Notes
Venue
The same as Appointment if Arbitrator.No
reconsideration, appeal or certiorari.
Any order of the court resolving the petition
shall be immediately executory and shall not be
the subject of a motion for reconsideration,
appeal, or certiorari (Rule 7, Special ADR Rules).
Reimbursement of expenses and
reasonable compensation to challenged
arbitrator
Unless the bad faith of the challenged arbitrator
is established with reasonable certainty by
concealing or failing to disclose a ground for his
disqualification, the challenged arbitrator shall
be entitled to reimbursement of all reasonable
expenses he may have incurred in attending to
the arbitration and to a reasonable
compensation for his work on the arbitration
(Rule 7.9, Rule 7, Special ADR Rules).
6. Termination of Mandate of Arbitrator;
When to Request Termination
a) An arbitrator become de jure or de facto
unable to perform his functions or for other
reasons fail to act without undue delay;
b) The arbitrator, upon request of any party,
fails or refuses to withdraw from his office.
c) The appointing authority fails or refuses to
decide on the termination of the mandate of
the arbitrator within such period of time as
may be allowed under the applicable rule or,
in the absence thereof, within thirty (30)
days from the time the request is brought
before him; and
d) Any party seeks judicial action in terminating
the mandate of the arbitrator (p. 183,
Alternative Dispute Resolution, 2015 Revised
Edition, Justice Gabriel T. Robeniol).
Venue
The same as Appointment if Arbitrator.
Remedial Law
No reconsideration, appeal or certiorari
Any order of the court resolving the petition
shall be immediately executory and shall not be
the subject of a motion for reconsideration,
appeal, or certiorari (Rule 8, Special ADR Rules).
Appointment of substitute arbitrator
Where the mandate of an arbitrator is
terminated, or he withdraws from office for any
other reason, or because of his mandate is
revoked by agreement of the parties or is
terminated for any other reason, a substitute
arbitrator shall be appointed according to the
rules that were applicable to the appointment of
the arbitrator being replaced (Rule 8.8, Rule 8,
Special ADR Rules).
Termination of Mandate of An Arbitrator
vs. Challenge to An Arbitrator
In judicial challenge to an arbitrator, the
arbitrator is sought to be removed on the
ground of partiality or non-compliance with the
qualifications required of him. In judicial
termination of mandate of an arbitrator, the
arbitrator who has been validly appointed has
become incapable of performing his functions or
has become unable to do so(p. 183, Alternative
Dispute Resolution, 2015 Revised Edition, Justice
Gabriel T. Robeniol).
7. Assistance in Taking Evidence
This specific relief is an exception to the
principle that the Special ADR Rules are
applicable only to domestic arbitration and
Philippine ICA. This is available whether the
arbitration is domestic or foreign (p. 184,
Alternative Dispute Resolution, 2015 Revised Edition,
Justice Gabriel T. Robeniol).
The court may grant or execute the request for
assistance in taking evidence within its
competence and according to the rules of
evidence (Rule 9.4, Rule 9, Special ADR Rules).
When Assistance Given
When evidence sought is not privileged, and is
material and relevant, the court shall grant the
Bar Operations C ommissions 617
 Purple Notes
Remedial Law
assistance in taking evidence requested and
shall order petitioner to pay costs attendant to
such assistance (Rule 9.8, Rule 9, Special ADR
Rules).
Venue
A petition for assistance in taking evidence may,
at the option of the petitioner, be filed with
Regional Trial Court where:
a) arbitration proceedings are taking place,
b) the witnesses reside or may be found, or
c) where the evidence may be found (Rule 9.3,
Rule 9, Special ADR Rules)
Type of Assistance
A party requiring assistance in the taking of
evidence may petition the court to direct any
person, including a representative of a
corporation, association, partnership or other
entity (other than a party to the ADR
proceedings or its officers) found in the
Philippines, for any of the following:
a. To comply with a subpoena ad
testificandum and/or subpoena duces
tecum;
b. To appear as a witness before an officer for
the taking of his deposition upon oral
examination or by written interrogatories;
c. To allow the physical examination of the
condition of persons, or the inspection of
things or premises and, when appropriate, to
allow the recording and/or documentation of
condition of persons, things or premises (i.e.,
photographs, video and other means of
recording/documentation);
d. To allow the examination and copying of
documents; and
e. To perform any similar acts (Rule 9.5, Rule 9,
Special ADR Rules).
8. Confirmation, Correction or Vacation of
Award in Domestic Arbitration;
Coverage
The circumstances covered by this rule are as
follows:
618 Center for Legal Education and Research
1. An arbitral award has been rendered either in
a: [i] domestic arbitration, [ii] Philippine ICA;
or [iii] foreign arbitration resulting in a
convention award or non-convention award
but with comity and reciprocity
2.A party seeks to [i] confirm, correct or vacate
the domestic arbitral award; [ii] recognize
and enforce, or set aside the Philippine ICA;
or [iii] recognize and enforce the foreign
convention award or foreign as-in convention
award. (p. 190, Alternative Dispute Resolution,
2015 Revised Edition, Justice Gabriel T. Robeniol).
When to Request
a. Confirmation. - At any time after the lapse of
thirty (30) days from receipt by the
petitioner of the arbitral award, he may
petition the court to confirm that award.
b.Correction/Modification. - Not later than thirty
(30) days from receipt of the arbitral award,
a party may petition the court to
correct/modify that award.
c.Vacation. - Not later than thirty (30) days
from receipt of the arbitral award, a party
may petition the court to vacate that award.
d.A petition to vacate the arbitral award may be
filed, in opposition to a petition to confirm
the arbitral award, not later than thirty (30)
days from receipt of the award by the
petitioner. A petition to vacate the arbitral
award filed beyond the reglementary period
shall be dismissed.
e.A petition to confirm the arbitral award may
be filed, in opposition to a petition to vacate
the arbitral award, at any time after the
petition to vacate such arbitral award is
filed. The dismissal of the petition to vacate
the arbitral award for having been filed
beyond the reglementary period shall not
result in the dismissal of the petition for the
confirmation of such arbitral award.
f. The filing of a petition to confirm an arbitral
award shall not authorize the filing of a
belated petition to vacate or set aside such
award in opposition thereto.
g. A petition to correct an arbitral award may
be included as part of a petition to confirm
the arbitral award or as a petition to confirm
that award.
 Purple Notes
Venue
The petition for confirmation,
correction/modification or vacation of a
domestic arbitral award may be filed with
Regional Trial Court having jurisdiction over the
place in which one of the parties is doing
business, where any of the parties reside or
where arbitration proceedings were conducted
(Rule 11.3, Rule 11, Special ADR Rules).
9. Recognition and Enforcement or
Setting Aside of an Award in
International Commercial Arbitration;
Recognition and Enforcement of
Foreign Arbitral Award
Rule 12 governs the recognition and
enforcement or setting aside of a Philippine ICA
award. A foreign ICA shall be treated as a
foreign arbitral award, and its recognition and
enforcement will be governed by Rule 13 of the
Special ADR Rules.
Judicial correction or modification is not
available for an ICA award. Another judicial
recourse against an ICA award, such as appeal,
petition for review or petition for certiorari, are
disallowed and shall be dismissed. (p. 198,
Alternative Dispute Resolution, 2015 Revised Edition,
Justice Gabriel T. Robeniol).
10. Confidentiality/Protective Orders
This refers to the judicial enforcement of the
confidential nature of information disclosed or
obtained during the ADR proceeding.
This benefit is available not just for arbitration
proceedings, but for all forms of ADR (p. 187-
188, Alternative Dispute Resolution, 2015 Revised
Edition, Justice Gabriel T. Robeniol).
When made
At anytime there is a need to enforce the
confidentiality of the information obtained, or to
be obtained, in ADR proceedings.
Remedial Law
Venue
A petition for a protective order may be filed
with the Regional Trial Court where that order
would be implemented.
If there is a pending court proceeding in which
the information obtained in an ADR proceeding
is required to be divulged or is being divulged,
the party seeking to enforce the confidentiality
of the information may file a motion with the
court where the proceedings are pending to
enjoin the confidential information from being
divulged or to suppress confidential information
(Rule 10.3, Rule 10, Special ADR Rules).
Court Action
If the court finds the petition or motion
meritorious, it shall issue an order enjoining a
person or persons from divulging confidential
information.
Relief
The order enjoining a person or persons from
divulging confidential information shall be
immediately executory and may not be enjoined
while the order is being questioned with the
appellate courts.
If the court declines to enjoin a person or
persons from divulging confidential information,
the petitioner may file a motion for
reconsideration or appeal (Rule 10.9, Rule 10,
Special ADR Rules).
11. Deposit and Enforcement of Mediated
Settlement Agreements
Who make deposit
Any party to a mediation that is not court-
annexed may deposit with the court the written
settlement agreement, which resulted from that
mediation (Rule 15.1, Rule 15, Special ADR Rules).
Bar Operations C ommissions 619
 Purple Notes
Remedial Law
When made
At any time after an agreement is reached, the
written settlement agreement may be deposited
(Rule 15.2, Rule 15, Special ADR Rules).
Venue
The written settlement agreement may be
jointly deposited by the parties or deposited by
one party with prior notice to the other party/ies
with the Clerk of Court of the Regional Trial
Court:
1)where the principal place of business in the
Philippines of any of the parties is located
2)if any of the parties is an individual, where
any of those individuals resides
3)in the National Capital Judicial Region (Rule
15.3, Rule 15, Special ADR Rules).
Court Action
After a summary hearing, if the court finds that
the agreement is a valid mediated settlement
agreement, that there is no merit in any of the
affirmative or negative defenses raised, and the
respondent has breached that agreement, in
whole or in part, the court shall order the
enforcement thereof; otherwise, it shall dismiss
the petition (Rule 15.8, Rule 15, Special ADR Rules).
13.F.2. SUMMARY PROCEEDINGS IN
CERTAIN CASES
The proceedings in the following instances are
summary in nature and shall be governed by
this provision:
a. Judicial Relief Involving the Issue of
Existence, Validity or Enforceability of the
Arbitration Agreement;
b. Referral to ADR;
c. Interim Measures of Protection;
d. Appointment of Arbitrator;
e. Challenge to Appointment of Arbitrator;
f. Termination of Mandate of Arbitrator;
g. Assistance in Taking Evidence;
h. Confidentiality/Protective Orders; and
i. Deposit and Enforcement of Mediated
Settlement Agreements (Rule 1.3, Rule 1,
Special ADR Rules).
620 Center for Legal Education and Research
Summary Hearing
In all cases, as far as practicable, the summary
hearing shall be conducted in one (1) day and
only for purposes of clarifying facts.
Except in cases involving Referral to ADR or
Confidentiality/Protective Orders made through
motions, it shall be the court that sets the
petition for hearing within five (5) days from the
lapse of the period for filing the opposition or
comment (Rule 1.3 ( c ), Rule 1, Special ADR
Rules) .
Resolution
The court shall resolve the matter within a
period of thirty (30) days from the day of the
hearing (Rule 1.3 ( d ), Rule 1, Special ADR Rules)
Note: The pleadings must be verified and
attached with Certification Against Forum
Shopping (Rule 1.4-1.5, Rule 1, Special ADR Rules)
 Q. What is the extent of court authority in
ADR cases?(where court stressed that the
proceedings are summary in nature)
A. RA 876 explicitly confines the court‘s
authority only to the determination of
whether or not there is an agreement in
writing providing for arbitration. In
affirmative, the statute ordains that the
court shall issue an order ―summarily
directing the parties to proceed with the
arbitration in accordance with the terms
thereof‖. If the court upon the otherhand,
finds that no such agreement exists, the
―proceedings shall be dismissed‖ (La Naval
Drug Corporation v. Court of Appeals, GR No.
103200, August 31, 1994)
13.F.3. PROHIBITED SUBMISSIONS
The following pleadings, motions, or petitions
shall not be allowed in the cases governed by
the Special ADR Rules and shall not be accepted
for filing by the Clerk of Court:
1. Motion to dismiss;
2. Motion for bill of particulars;
 Purple Notes
3. Motion for new trial or for reopening of trial;
4. Petition for relief from judgment;
5.Motion for extension, except in cases where
an ex-parte temporary order of protection
has been issued;
6.Rejoinder to reply;
7.Motion to declare a party in default; and
8.Any other pleading specifically disallowed
under any provision of the Special ADR
Rules.
Note:The court shall motu proprio order a
pleading/motion that it has determined to be
dilatory in nature be expunged from the records
(Rule 1.6, Rule 1, Special ADR Rules).
13.F.4. JUDICIAL RELIEF INVOLVING THE
ISSUE OF EXISTENCE, VALIDITY AND
ENFORCEABILITY OF ARBITRATION
AGREEMENTS
The issue involved in these proceedings are:
(EVE)
1. Existence of the arbitration agreement-
whether or not there is an arbitration
agreement;
2. Validity of arbitration agreement-
whether or not the arbitration agreement
complies with all the essential requisites for a
valid contract;
3. Enforceability of the arbitration
agreement- whether or not the arbitration
agreement is enforceable in accordance with
Art. 1403 of the Civil Code (p. 161,
Alternative Dispute Resolution, 2015 Revised
Edition, Justice Gabriel T. Robeniol).
JUDICIAL RELIEF
The judicial relief provided in Rule 3, whether
resorted to before or after commencement of
arbitration, shall apply only when the place of
arbitration is in the Philippines.
A. Before Commencement of Action
This applies when:
a. The arbitration proceeding has not yet
commenced; and
Remedial Law
b. There is between the parties a dispute
regarding the existence, validity or
enforceability of the arbitration agreement
(p. 163, Alternative Dispute Resolution, 2015
Revised Edition, Justice Gabriel T. Robeniol).
Venue
Regional Trial Court of the place where any of
the petitioners or respondents has his principal
place of business or residence (Rule 3.4, Rule 3,
Special ADR Rules).
Grounds
The arbitration agreement is, under the
applicable law, invalid, void, unenforceable or
inexistent (Rule 3.5, Rule 3, Special ADR Rules).
Reliefs
A prima facie determination by the court
upholding the existence, validity or
enforceability of an arbitration agreement shall
not be subject to a motion for reconsideration,
appeal or certiorari.
Such prima facie determination will not,
however, prejudice the right of any party to
raise the issue of the existence, validity and
enforceability of the arbitration agreement
before the arbitral tribunal or the court in an
action to vacate or set aside the arbitral award.
In the latter case, the court‘s review of shall be
a full review of such issue or issues with due
regard, however, to the standard for review for
arbitral awards prescribed in these Special ADR
Rules (Rule 3.11, Rule 3, Special ADR Rules).
B. After Arbitration Commences
After the commencement of the arbitration and
constitution of arbitral tribunal, and after the
arbitral tribunal has rendered a preliminary
ruling on its jurisdiction, the proper issue for
judicial relief is whether or not the arbitral
tribunal has jurisdiction over the arbitral
proceedings. Subsumed to the said issue is the
existence, validity or enforceability of the
arbitration agreement upon which emanates the
jurisdiction and authority of the arbitral tribunal
Bar Operations C ommissions 621
 Purple Notes
Remedial Law
(p. 165, Alternative Dispute Resolution, 2015 Revised
Edition, Justice Gabriel T. Robeniol).
Coverage
The rules on judicial relief after commencement
of arbitration apply under the following
circumstances:
1.The arbitration proceeding has already
commenced, the arbitral tribunal has been
constituted and has rendered a preliminary
ruling in its jurisdiction;
2.A party desires to challenge the arbitral
tribunal‘s ruling on the issue of jurisdiction
(p. 166, Alternative Dispute Resolution, 2015
Revised Edition, Justice Gabriel T. Robeniol).
Venue
The petition may be filed before the Regional
Trial Court of the place where arbitration is
taking place, or where any of the petitioners or
respondents has his principal place of business
or residence (Rule 3.14, Rule 3, Special ADR Rules).
Court Action
1. Periodfor resolving petition- within thirty
(30) days from time petition submitted for
resolution.
2. No injunction of arbitral proceedings-
Court shall not enjoin the arbitration
proceedings during the pendency of the
petition. Judicial recourse to the court shall
not prevent the arbitral tribunal from
continuing the proceedings and rendering its
award.
3. When dismissal appropriate-The court
shall dismiss the petition if:
a.it fails to comply with the contents of the
petition or
b.if upon consideration of the grounds
alleged and the legal briefs submitted by
the parties, the petition does not appear
to be prima facie meritorious (Rule 3.18,
Rule 3, Special ADR Rules).
622 Center for Legal Education and Research
When petition not allowed
Where the arbitral tribunal defers its ruling on
preliminary question regarding its jurisdiction
until its final award, the aggrieved party cannot
seek judicial relief to question the deferral and
must await the final arbitral award before
seeking appropriate judicial recourse(Rule 3.20,
Rule 3, Special ADR Rules).
Reliefs Allowed
1) The aggrieved party may file a motion for
reconsideration of the order of the court but
the court decision if not subject to appeal.
2)The ruling of the court that the arbitral
tribunal has no jurisdiction may be the
subject of a petition for certiorari. However,
ruling of the court affirming the arbitral
tribunal shall not be subject to a petition for
certiorari (Rule 3.19, Rule 3, Special ADR Rules).
13.F.5. INTERIM MEASURES OF
PROTECTION
Venue
A petition for an interim measure of protection
may be filed with the Regional Trial Court, which
has jurisdiction over any of the following places:
1)Where the principal place of business of any
of the parties to arbitration is located;
2)Where any of the parties who are individuals
resides;
3)Where any of the acts sought to be enjoined
are being performed, threatened to be
performed or not being performed; ord.
Where the real property subject of
arbitration, or a portion thereof is situated
(Rule 5.3, Rule 5, Special ADR Rules).
Grounds
1. The need to prevent irreparable loss or
injury;
2. The need to provide security for the
performance of any obligation;
3. The need to produce or preserve evidence;
or

4. The need to compel any other appropriate
act or omission (Rule 5.4 Rule 5, Special ADR
Rules).
Types of Interim Measure of Protection
1) Preliminary injunction directed against a
party to arbitration;
2) Preliminary attachment against property or
garnishment of funds in the custody of a
bank or a third person;
3) Appointment of a receiver;
4) Detention, preservation, delivery or
inspection of property; or,e. Assistance in the
enforcement of an interim measure of
protection granted by the arbitral tribunal,
which the latter cannot enforce effectively
(Rule 5.6, Rule 5, Special ADR Rules).
Relief Against Court Action
Order of the court shall be immediately
executory subject to a motion
reconsideration and/or appeal or a petition for
certiorari (Rule 5.10, Rule 5, Special ADR Rules).
Note: Any court order granting or denying
interim measure/s of protection is issued
without prejudice to subsequent grant,
modification, amendment, revision or revocation
by the arbitral tribunal as may be warranted
(Rule 5.13, Rule 3, Special ADR Rules).
13.F.6.ENFORCEMENT AND RECOGNITION
OR SETTING ASIDE OF AN
INTERNATIONAL COMMERCIAL ARBITRAL
AWARD
When to File
The petition for enforcement and recognition of
an arbitral award may be filed anytime from
receipt of the award. If, however, a timely
petition to set aside an arbitral award is filed,
the opposing party must file therein and in
opposition thereto the petition for recognition
and enforcement of the same award within the
period for filing an opposition.
Purple Notes
Remedial Law
The petition to set aside an arbitral award may
only be filed within three (3) months from the
time the petitioner receives a copy thereof (Rule
12.2, Rule 12, Special ADR Rules).
Venue
A petition to recognize and enforce or set aside
an arbitral award may, at the option of the
petitioner, be filed with the Regional Trial Court:
(a) where arbitration proceedings were
conducted; (b) where any of the assets to be
attached or levied upon is located; (c) where the
act to be enjoined will be or is being performed;
(d) where any of the parties to arbitration
resides or has its place of business; or (e) in the
National Capital Judicial Region (Rule 12.3, Rule
12, Special ADR Rules).
Grounds
1. Party making application furnished
proof that:
a. A party to the arbitration agreement was
for
under some incapacity, or the said
agreement is not valid under the law to
which the parties have subjected it or,
failing any indication thereof, under
Philippine law;
b. He was not given proper notice of the
appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
c. The award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration, or
contains decisions on matters beyond the
scope of the submission to arbitration
(decisions on matters not submitted to
arbitration may be set aside or decisions
on matters submitted to arbitration may
be enforced;) or
d. The composition of the arbitral tribunal or
the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of Philippine law
from which the parties cannot derogate,
or, failing such agreement, was not in
accordance with Philippine law;
Bar Operations C ommissions 623
 Purple Notes
Remedial Law
2. Court finds that
a. The subject-matter of the dispute is not
capable of settlement by arbitration under
the law of the Philippines; or
b. The recognition or enforcement of the
award would be contrary to public policy
(Rule 12.4, Rule 12, Special ADR Rules).
Exclusive recourse against arbitral award
Recourse to a court against an arbitral award
shall be made only through a petition to set
aside the arbitral award and on grounds
prescribed by the law that governs international
commercial arbitration. Any other recourse from
the arbitral award, such as by appeal or petition
for review or petition for certiorari or otherwise,
shall be dismissed by the court (Rule 12.5, Rule
12, Special ADR Rules).
Presumption
It is presumed that an arbitral award was made
and released in due course and is subject to
enforcement by the court, unless the adverse
party is able to establish a ground for setting
aside or not enforcing an arbitral award (Rule
12.12, Rule 12, Special ADR Rules).
Costs
The prevailing party shall be entitled to an
award of costs, which shall include reasonable
attorney‘s fees of the prevailing party against
the unsuccessful party. The court shall
determine the reasonableness of the claim for
attorney‘s fees, unless otherwise provided by
the parties in writing (Rule 12.14, Rule 12, Special
ADR Rules).
13.F.7. RECOGNITION AND
ENFORCEMENT IF A FOREIGN ARBITRAL
AWARD
When to File Petition
At any time after receipt of a foreign arbitral
award, any party to arbitration may petition the
proper Regional Trial Court to recognize and
624 Center for Legal Education and Research
enforce such award (Rule 13.2, Rule 13, Special
ADR Rules).
Venue
The petition to recognize and enforce a foreign
arbitral award shall be filed, at the option of the
petitioner, with the Regional Trial Court:
o where the assets to be attached or levied
upon is located;
o where the act to be enjoined is being
performed;
o in the principal place of business in the
Philippines of any of the parties;
o if any of the parties is an individual, where
any of those individuals resides; or
o in the National Capital Judicial Region (Rule
13.3, Rule 13, Special ADR Rules).
Law Applicable
The recognition and enforcement of a foreign
arbitral award shall be governed by the 1958
New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the
"New York Convention") and this Rule. The
court may, upon grounds of comity and
reciprocity, recognize and enforce a foreign
arbitral award made in a country that is not a
signatory to the New York Convention as if it
were a Convention Award(Rule 13.4, Rule 13,
Special ADR Rules).
Presumption
It is presumed that a foreign arbitral award was
made and released in due course of arbitration
and is subject to enforcement by the court (Rule
13.11, Rule 13, Special ADR Rules).
Note: The decision of the court recognizing and
enforcing a foreign arbitral award is immediately
executory (Rule 13.11, Rule 13, Special ADR Rules).
Recognition and enforcement of non-
convention award
The court shall, only upon grounds provided by
these Special ADR Rules, recognize and enforce
a foreign arbitral award made in a country not a
 Purple Notes
signatory to the New York Convention when
such country extends comity and reciprocity to
awards made in the Philippines. If that country
does not extend comity and reciprocity to
awards made in the Philippines, the court may
nevertheless treat such award as a foreign
judgment enforceable as such under Rule 39,
Section 48, of the Rules of Court (Rule 13.12,
Rule 13, Special ADR Rules).
13.F.8.SPECIAL CIVIL ACTION FOR
CERTIORARI
A. CERTIORARI TO THE COURT OF
APPEALS
When the Regional Trial Court, in making a
ruling under the Special ADR Rules, has acted
without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or
any plain, speedy, and adequate remedy in the
ordinary course of law, a party may file a special
civil action for certiorari to annul or set aside a
ruling of the Regional Trial Court (Rule 19.26,
Rule 19, Special ADR Rules).
The special civil action for certiorari under the
Special ADR Rules is limited to grave abuse of
discretion in the following orders of the RTC in
ADR related proceedings:
1.Holding that the arbitration agreement is
inexistent, invalid or unenforceable;
2. Reversing the arbitral tribunal‘s preliminary
determination upholding its jurisdiction;
3. Denying the request to refer the dispute to
arbitration;
4. Granting or refusing an interim relief;
5. Denying a petition for the appointment of an
arbitrator;
6. Confirming, vacating or correcting a domestic
arbitral award;
7. Suspending the proceedings to set aside an
international commercial arbitral award and
referring the case back to the arbitral
tribunal;
Remedial Law
8. Allowing a party to enforce an international
commercial arbitral award pending appeal;
9. Adjourning or deferring a ruling on whether
to set aside, recognize and or enforce an
international commercial arbitral award;
10. Allowing a party to enforce a foreign arbitral
award pending appeal; and
11.Denying a petition for assistance in taking
evidence (p. 226, Alternative Dispute Resolution,
2015 Revised Edition, Justice Gabriel T. Robeniol).
When Filed
Must be filed within fifteen (15) days from
notice of the judgment, order or resolution
sought to be annulled or set aside, without
benefit of extension of time to file. Moreover,
improper filing of a special civil action for
certiorari under Rule 65 will not toll the 15-day
period to file the proper petition for certiorari
under Rule 19 of the Special ADR Rules.
Stay of order
Filing of a special civil action for certiorari under
the Special ADR Rules does not
stayproceedings of the lower court or arbitral
tribunal. Hence, the arbitral tribubal or lower
court may continue with the arbitral proceedings
and render an award (p. 227-228, Alternative
Dispute Resolution, 2015 Revised Edition, Justice
Gabriel T. Robeniol).
Remedy of Party Aggrieved by Final
Resolution of the Court of Appeals
The silence of the Special ADR Rules and
exclusionary rule under Rule 22.1 thereof
preclude the filing of special civil actions for
certiorari from orders, decisions or judgments of
the Court of Appeals to the Supreme Court.
Thus, the remedy of party aggrieved by final
resolution of the Court of Appeals in an ADR
related case is to file a Petition for Review on
Certiorari with the Supreme Court under the
ADR act (p. 228, Alternative Dispute Resolution,
2015 Revised Edition, Justice Gabriel T. Robeniol).
Bar Operations C ommissions 625
 Purple Notes
Remedial Law
B. APPEAL BY CERTIORARI TO THE
SUPREME COURT (PETITION FOR
REVIEW ON CERTIORARI)
This is grounded on pure questions of law and is
not a matter of right and may be granted only
for serious and compelling reasons resulting in
grave prejudice to the aggrieved party.
When Discretionary Review Proper
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
serious and compelling, and necessarily,
restrictive nature of the grounds that will
warrant the exercise of the Supreme Court‘s
discretionary powers, when the Court of
Appeals:
1. Failed to apply the applicable standard or
test for judicial review prescribed in these
Special ADR Rules in arriving at its decision
resulting in substantial prejudice to the
aggrieved party;
2. Erred in upholding a final order or decision
despite the lack of jurisdiction of the court
that rendered such final order or decision;
3. Failed to apply any provision, principle, policy
or rule contained in these Special ADR Rules
resulting in substantial prejudice to the
aggrieved party; and
4. Committed an error so egregious and
harmful to a party as to amount to an
undeniable excess of jurisdiction (Rule19.36,
Rules 19, Special ADR Rules).
How Made
File with the Supreme Court a verified petition
for review on certiorari. The petition shall raise
only questions of law, which must be distinctly
set forth, and filed within fifteen (15) days from
notice of the judgment or final order or
resolution appealed from, or of the denial of the
petitioner's motion for new trial or
reconsideration filed in due time after notice of
the judgment.
Grounds for Dismissal
The failure of the petitioner to comply with:
1. The payment of the docket and other lawful
fees, deposit for costs
2. Proof of service of the petition, and
3. The contents of and the documents which
should accompany the petition shall be
sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative
deny the petition on the ground that the appeal
is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are
too insubstantial to require consideration.
HAIL TO THE CHIEFS!

Ground for Outright Dismissal of Petition

by the Supreme Court

A mere general allegation that the Court of

Appeals has committed serious and substantial
error or that it has acted with grave abuse of
discretion resulting in substantial prejudice to
the petitioner without indicating with specificity
the nature of such error or abuse of discretion
and the serious prejudice suffered by the
petitioner on account thereof, shall constitute
sufficient ground for the Supreme Court to
dismiss outright the petition (Rule19.36, Rules 19,
Special ADR Rules).

626 Center for Legal Education and Research

Taf
tAvenueCor
nerMenl
oSt
reet
,PasayCi
ty
TelNo.(
02)85223467/( 02)84043089l
oc.29
www.
arel
lanolaw.edu