LEGAL AND JUDICIAL ETHICS

NIKKA MAE B. MORALES

Commissioner

KRISTY ANNE CHUA

Deputy Commissioner

SUBJECT HEADS

ATHENA JEUNNESSE MAE MARTINEZ TRIA

Legal Ethics, Suspension,
Disbarment and Discipline of
Lawyers (Rule 139; Rule 139-B)

MIKE JAY J. BAÑU

Deputy Subject Head, Legal Ethics, Suspension, Disbarment and Discipline of Lawyers
(Rule 139; Rule 139-B)
Subject Head, Practical Exercises (Civil Law and Criminal Law); Deputy Subject Head, Legal
Ethics, Suspension, Disbarment and Discipline of Lawyers (Rule 139; Rule 139-B)

MEMBERS

MICAH ELLA M. AGNO

KELLY ANDRES
CAMILLE B. ASI
CAMILLE M. DASALLA
ROANNA PAMELA M. DOMINGO
IANA DEIRDRE C. DULDULAO
JOHN ANGELO M. GABRILLO
DAENA JAZMIN GARCIA
JOANA MARIE GARCIA
PAULEEN JOYCE L. GENERAL
CHRISTINE ANN A. GENEROSO
SHAYNE V. LUNA
SHIELA MAY NOCEDA
JANRAY M. POTENTE
GEMY HALE A. PROVIDO
DANIELLE DENISE M. ROBLES
RYZA TATLONGHARI
 TABLE OF CONTENTS

PART ONE: REMEDIAL LAW

I. GENERAL PRINCIPLES
A. Substantive Law vs. Remedial Law ................................................................. 1
B. Rule-Making Power of the Supreme Court ...................................................... 2
C. Principle of Judicial Hierarchy ........................................................................ 3
D. Doctrine of Non-Interference/Judicial Stability ................................................ 5

II. JURISDICTION
A. Classification of Jurisdiction ........................................................................... 7
B. Doctrines of Hierarchy of Courts and Adherence of Jurisdiction ........................ 18
C. Jurisdiction of Various Philippine Courts and Tribunals ..................................... 20
D. Aspects of Jurisdiction ................................................................................... 40
E. Jurisdiction vs. Exercise of Jurisdiction ........................................................... 46
F. Jurisdiction vs. Venue.................................................................................... 46
G. Jurisdiction Over Cases Covered by Barangay Conciliation, and Cases Covered by
the Rules on Expedited Procedures in the First Level Courts ........................... 47

III. CIVIL PROCEDURE (A.M. NO. 19-10-20-SC)

A. General Provisions (Rule 1) ........................................................................... 53
B. Kinds of Action ............................................................................................. 57
C. Cause of Action (Rule 2) ................................................................................ 60
D. Parties to Civil Actions (Rule 3) ...................................................................... 66
E. Venue (Rule 4) ............................................................................................. 78
F. Pleadings...................................................................................................... 83
G. Filing and Service (Rule 13) ........................................................................... 137
H. Summons (Rule 14) ...................................................................................... 154
I. Motions (Rule 15) ......................................................................................... 164
J. Dismissal of Actions (Rule 17) ........................................................................ 171
K. Pre-Trial (Rule 18) ........................................................................................ 175
L. Intervention (Rule 19) ................................................................................... 184
M. Subpoena (Rule 21) ...................................................................................... 189
N. Computation of Time (Rule 22) ..................................................................... 192
O. Modes of Discovery ....................................................................................... 192
P. Trial (Rule 30) ............................................................................................. 216
Q. Consolidation or Severance (Rule 31) ........................................................... 223
R. Demurrer to Evidence (Rule 33) ................................................................... 225
S. Judgments and Final Orders ......................................................................... 227
T. Post-Judgment Remedies ............................................................................. 243
U. Execution, Satisfaction, and Effect of Judgments (Rule 39) ............................ 271

IV. PROVISIONAL REMEDIES

A. Nature, Purpose, and Jurisdiction Over Provisional Remedies ........................... 300
 B. Preliminary Attachment (Rule 57) .................................................................. 304
C. Preliminary Injunction (Rule 58) .................................................................... 322
D. Receivership (Rule 59) .................................................................................. 344
E. Replevin (Rule 60) ........................................................................................ 349

V. SPECIAL CIVIL ACTIONS

A. Jurisdiction and Venue .................................................................................. 355
B. Interpleader (Rule 62) ................................................................................... 360
C. Declaratory Relief and Similar Remedies (Rule 63) .......................................... 365
D. Certiorari, Prohibition, and Mandamus (Rule 65) ............................................. 374
E. Quo Warranto (Rule 66) ................................................................................ 388
F. Expropriation (Rule 67) ............................................................................... 392
G. Foreclosure of Real Estate Mortgage (Rule 68) ............................................... 408
H. Partition (Rule 69) ........................................................................................ 420
I. Forcible Entry and Unlawful Detainer (Rule 70) ............................................... 428
J. Contempt (Rule 71) ...................................................................................... 437

VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS

A. Settlement of Estate of Deceased Persons ...................................................... 444
B. Guardianship ................................................................................................ 479
C. Writ of Habeas Corpus (Rule 102) .................................................................. 485
D. Change of Name (Rule 103) .......................................................................... 501
E. Cancellation of Correction of Entries in the Civil Registry (Rule 108) ................. 506
F. Clerical Error Law (RA No. 9048, as amended by RA 10172) ............................ 510
G. Writ of Amparo (A.M. No. 07-9-12-SC) ........................................................... 519
H. Writ of Habeas Data (A.M. No. 08-1-16-SC) .................................................... 529
I. Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) ................... 534

VII. CRIMINAL PROCEDURE

A. General Concepts .......................................................................................... 554
B. Prosecution of Offenses (Rule 110) ................................................................ 567
C. Prosecution of Civil Action (Rule 111) ............................................................. 584
D. Preliminary Investigation (Rule 112) .............................................................. 593
E. Arrest (Rule 113) .......................................................................................... 606
F. Bail (Rule 114) .............................................................................................. 613
G. Arraignment and Plea (Rule 116) ................................................................... 618
H. Motion to Quash (Rule 117) ........................................................................... 623
I. Pre-Trial (Rule 118) ...................................................................................... 630
J. Trial (Rule 119) ............................................................................................ 635
K. Judgment (Rule 120) .................................................................................... 651
L. New Trial or Reconsideration (Rule 121) ........................................................ 657
M. Appeal (Rule 122) ......................................................................................... 661
N. Search and Seizure (Rule 126) ....................................................................... 664
O. Provisional Remedies in Criminal Cases (Rule 127) .......................................... 674
 P. The Rule on Cybercrime Warrants (Section 2 of A.M. No. 17-11-03-SC only) .... 674

VIII. EVIDENCE (A.M. NO. 19-08-15-SC)

A. General Concepts .......................................................................................... 676
B. Admissibility of Evidence (Rule 128) ............................................................... 681
C. Judicial Notice and Judicial Admissions (Rule 129) .......................................... 689
D. Object (Real) Evidence (Rule 130, A) ............................................................. 698
E. Documentary Evidence (Rule 130, B) ............................................................. 708
F. Testimonial Evidence (Rule 130, C) ................................................................ 720
G. Burden of Proof and Presumptions (Rule 131) ................................................ 773
H. Presentation of Evidence (Rule 132)............................................................... 782
I. Judicial Affidavit Rule (A.M. No. 12-8-8-SC) .................................................... 803
J. Weight and Sufficiency of Evidence (Rule 133) ............................................... 806
K. Rules on Electronic Evidence (A.M. No. 01-7-01-SC)........................................ 813

PART TWO: LEGAL AND JUDICIAL ETHICS WITH PRACTICAL EXERCISES

I. LEGAL ETHICS
A. Practice of Law............................................................................................ 820
B. Duties and Responsibilities of a Lawyer Under the Code of Professional
Responsibility .............................................................................................. 829
C. Suspension, Disbarment, and Discipline of Lawyers ....................................... 831
D. Notarial Practice (A.M. No. 02-8-13-SC, as amended) .................................... 839

II. JUDICIAL ETHICS

A. Sources ...................................................................................................... 846
B. Qualities ..................................................................................................... 847
C. Disqualification of Judicial Officers ................................................................ 849
D. Discipline and Administrative Jurisdiction Over Members of the Judiciary ....... 850

III. Practical Exercises

A. Demand Letter ............................................................................................ 854
B. Deed of Sale of Real Property and Deed of Sale of Personal Property ............. 855
C. Contract of Lease ........................................................................................ 859
D. Special Power of Attorney ............................................................................ 861
E. Verification and Certificate of Non-forum Shopping ........................................ 863
F. Judicial Affidavit .......................................................................................... 865
G. Notarial Certificates ..................................................................................... 867
H. Motions
1. Motion for Summary Judgment ........................................................ 869
2. Motion to Dismiss ............................................................................ 871
3. Motion to Declare in Default ............................................................. 873
I. Quitclaims in Labor Cases ............................................................................ 875
J. Information in Criminal Cases ...................................................................... 877
I. GENERAL PRINCIPLES
As to establishment of
vested right
Procedure is the means whereby the court
reaches out to restore rights and remedy wrongs, Substantive law creates As a general
and includes every step which may be taken from substantive rights and the two rule no vested
the beginning to the end of a case (72 C.J.S. terms in this respect may be right may
473). (Maritime Company of the Philippines v. said to be synonymous. attach to, nor
Paredes, G.R. No. L-24811, March 3, 1967) arise from,
Substantive rights in a term procedural
Procedural law refers to the adjective law which which includes those rights laws. (Tan vs.
prescribes rules and forms of procedure in order
which one enjoys under the CA, G.R. No.
that courts may be able to administer justice. legal system prior to the 136368,
Procedural laws do not come within the legal disturbance of normal relations.January 16,
conception of a retroactive law, or the general (Bustos vs. Lucero, G.R. No. L- 2002)
rule against the retroactive operation of statues 2068, October 20, 1948)
they may be given retroactive effect on actions
pending and undetermined at the time of their As to application
passage and this will not violate any right of a
person who may feel that he is adversely Substantive law operates Procedural laws
affected, insomuch as there are no vested rights prospectively and may not be may be given
in rules of procedure. (Jose v. Javellana, G.R. No. construed retroactively without retroactive
158239, January 25, 2012) affecting previous or past effect to
rights. (Spouses Tirona vs. actions pending
Remedial Law is that branch of law which Alejo, G.R. No. 129313, and
prescribes the method of enforcing the rights or October 10, 2001) undetermined
obtaining redress for their invasions. (Bustos v. at the time of
Lucero, G.R. No. L-2068, October 20, 1948) their passage.
(Go vs.
Sunbanun, G.R.
A. SUBSTANTIVE LAW VS. REMEDIAL LAW No. 168240,
February 9,
SUBSTANTIVE LAW REMEDIAL 2011)
LAW
As applied to criminal law
As to definition
Substantive law is that which Procedural law
It is part of the law which It prescribes declares what acts are crimes which provides
creates, defines and regulates the method of and prescribes the punishment or regulates the
rights, or which regulates the enforcing rights for committing them. (Bustos steps by which
rights and duties which give rise or obtains vs. Lucero, G.R. No. L-2068, one who
to a cause of action. (People vs. redress for October 20, 1948) commits a
Moner, G.R. No. 202206. March their invasion. crime is to be
05, 2018) (People vs. punished.
Moner, G.R. (Bustos vs.
No. 202206. Lucero, G.R.
March 05, No. L-2068,
2018) October 20,
1948)

1
 (Echegaray vs. vs. Cabrera, SBC-
As to origin
Secretary of Justice, 585, February 29,
Not embraced in the rule- Promulgated by G.R. No. 132601, 1984).
making power of the Supreme the Supreme January 19, 1999).
Court (Primicias vs. Ocampo, Court. (Sec. 5
G.R. No. L-6120, June 30, (5), Art. VIII, Power to Relax/Suspend Procedural Rules
1953) 1987
Constitution) Power to amend Power to suspend
procedural rules procedural rules
(1) The Supreme The courts have the
B. RULE-MAKING POWER OF THE SUPREME Court has the power to relax or
COURT AND ITS LIMITATIONS power to amend, suspend technical or
repeal or even procedural rules or to
Rule-Making Limitations on the establish new exempt a case from their
Power of the Rule-Making Power rules for a more operation when
Supreme Court of the Supreme Court simplified and compelling reasons
The Supreme Court (1) The rules shall inexpensive warrant or when the
shall have the power provide a simplified process, and the purpose of justice
to promulgate rules and inexpensive speedy disposition requires it.
concerning the: procedure for the of cases (Neypes
(1) protection and speedy disposition vs. CA, G.R. No. What constitutes good
enforcement of of cases; 141524, and sufficient cause that
constitutional (2) They shall be September 14, would merit suspension
rights; uniform for all 2005); and of the rules is
(2) pleading, courts of the same discretionary upon the
practice, and grade; (2) The constitutional courts (Commissioner of
procedure in all (3) They shall not power of the Internal Revenue v.
courts; diminish, increase, Supreme Court to Mirant Pagbilao
(3) admission to the or modify promulgate rules Corporation, G.R. No.
practice of law; substantive rights; of practice and 159593, October 16,
(4) Integrated Bar; (4) Rules of procedure procedure 2006).
and of special courts necessarily carries
(5) legal assistance and quasi-judicial with it the power
to the bodies shall remain to overturn
underprivileged. effective unless judicial
(Sec. 5(5), Art. disapproved by the precedents on
VIII, 1987 Supreme Court points of remedial
Constitution) (Sec. 5(5), Art. law through the
VIII, 1987 amendment of the
The power of Constitution); and Rules of Court
Congress under the (5) The power to admit (Pinga vs. Heirs of
1935 and 1973 attorneys to the Bar Santiago, G.R. No.
Constitutions to is not an arbitrary 170354, June 30,
repeal, alter or and despotic one 2006).
supplement rules but is the duty of
concerning pleading, the court to Factors that Would Warrant the Suspension
practice and exercise and
procedure was taken regulate by a sound Procedural rules are not to be belittled or
away by the 1987 and judicial dismissed simply because their non-observance
Constitution discretion (Andres may have prejudiced a party’s substantive

2
rights—like all rules, they are required to be
followed.
However, there are recognized exceptions to their
strict observance, such as:
(1) most persuasive and weighty reasons;
(2) to relieve a litigant from an injustice not
commensurate with his failure to comply
with the prescribed procedure;
(3) good faith of the defaulting party by
immediately paying within a reasonable
time from the time of the default;
(4) the existence of special or compelling
circumstances;
(5) the merits of the case;
(6) a cause not entirely attributable to the fault
or negligence of the party favored by the
suspension of the rules;
(7) a lack of any showing that the review
sought is merely frivolous and dilatory;
(8) the other party will not be unjustly
prejudiced thereby;
(9) fraud, accident, mistake or excusable
negligence without appellant’s fault;
(10) peculiar legal and equitable circumstances
attendant to each case;
(11) in the name of substantial justice and fair
play;
(12) importance of the issues involved; and
(13) exercise of sound discretion by the judge
guided by all the attendant circumstances.
Thus, there should be an effort on the part
of the party invoking liberality to advance
a reasonable or meritorious explanation for
his/her failure to comply with the rules.
(Labao v. Flores, G.R. No. 187984, 2010)
(14) When transcendental matters of life, liberty
or state security are involved (De Guzman
vs. Sandiganbayan, G.R. No. 103276, April
11, 1996).
Pro hac vice rule
When the Court, in certain exceptional
circumstances, suspends a procedural rule in a
particular case, the decision therein cannot be
relied on as a precedent since the ruling is for that
particular case only or pro hac vice.
When the ruling is qualified as such, the same
cannot be used as a precedent to govern other
cases (Highpoint Development Corporation v.
Republic, G.R. No. 224389, November 7, 2018).
C. PRINCIPLE OF JUDICIAL HIERARCHY
(THE DOCTRINE OF HIERARCHY OF
COURTS)
General Rule: Under the doctrine of hierarchy
of courts, where courts have concurrent
jurisdiction over a subject matter, such
concurrence of 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 which would allow a party a direct resort
to a higher court. (Riano, Civil Procedure (The Bar
Lecture Series), Vol. I, p. 20, 2022)
The doctrine that requires respect for the
hierarchy of courts was created to ensure that
every level of the judiciary performs its
designated roles in an effective and efficient
manner. A disregard of the doctrine may result in
the denial of a petition (De Lima v. Guerrero, G.R.
No. 229781, October 10, 2017)
Exception:
(1) The policy may be disregarded if warranted
by the nature and importance of the issues
raised in the interest of speedy justice and
to avoid future litigations (Declarador v.
Bansales, G.R. No. 159208, August 18,
2006., citing Fortich v. Corona, G.R. No.
131457, April 24, 1998);
(2) Jurisprudence allowed a direct resort to a
higher court in certain cases like:
(a) when there are special and important
reasons clearly stated in the petition;
(b) when dictated by public welfare and the
advancement of public policy;
(c) when demanded by the broader
interest of justice;
(d) when the challenged orders were
patent nullities;
(e) when analogous exceptional and
compelling circumstances called for and
3
 justified the immediate and direct
handling by the Court (Republic v.
Caguioa, G.R. No. 17438, February 20,
2013);
(f) when there are genuine issues of
constitu- tionality that must be
addressed at the most immediate time
(Chiquita Brands, Inc. v. Omelio, G.R.
No. 189102, June 7, 2017); or
(g) when the issues raised are of
transcendental importance (Rama v.
Moises, G.R. No. 197146, August 8,
2017). (Riano, Civil Procedure (The Bar
Lecture Series), Vol. I, pp. 22-23, 2022)
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
remain so 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
therefore (Gios-Samar, Inc. vs. DoTC, G.R. No.
217158, March 12, 2019).
Concurrent or coordinate jurisdiction in
relation to Hierarchy of Courts
Concurrent or coordinate jurisdiction is that which
is exercised by different courts over the same
subject matter (Unduran v. Aberasturi, G.R. No.
181284, April 18, 2017).
It is the concurrence of jurisdiction among several
courts which triggers the application of the
doctrine.
A direct invocation of the Supreme Court's
jurisdiction is allowed only when there are special
reasons for doing so, clearly set out in the
petition. The principle requires that resort must
first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.
Hence, the petition must, as a rule, be filed first
with the Regional Thal Court (Osmeria III v.
Abaya, G.R. No. 214756, January 13, 2016).
Also, while the Supreme Court has concurrent
original jurisdiction with Regional Trial Courts in
cases affecting ambassadors, other public
ministers, and consuls (Sec. 5, Art. VIII, 1987
Constitution; Sec. 21[2] B.P. 129), the better
procedure is to file the action with the Regional
Trial Court. In other words, the rule is that such
concurrence in jurisdiction does not give a litigant
an unbridled freedom of choice of forum (Lanao
del Norte Electric Cooperative, Inc. v. Provincial
Government of Lanao del Norte, G.R. No. 185420,
August 29, 2017).
Rationale of the Hierarchy of Courts
(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).
(4) The doctrine that requires respect for the
hierarchy of courts is intended to ensure that
every level of the judiciary performs its
designated roles in an effective and efficient
manner. Trial courts do not only determine
the facts from the evaluation of the evidence
presented before them. They are likewise
competent to determine issues of law which
may include the validity of an ordinance,
statute, or even an executive issuance in
relation to the Constitution (Intramuros
Admin. vs. Offshore Construction
Development Company, G.R. No. 196795,
March 7, 2018).
The Supreme Court is the last resort
Under the principle of hierarchy of courts, direct
recourse to the Supreme Court is improper
because the Supreme Court is a court of last
resort and must remain to be so in order for it to
4
satisfactorily perform its constitutional functions,
thereby allowing it to devote its time and
attention to matters within its exclusive
jurisdiction and preventing the overcrowding of
its docket (Palafox, Jr., vs. Mendiola G.R. No.
209551, February 15, 2021, J. Hernando).
Invocation of the Supreme Court’s original
jurisdiction to issue writs of certiorari.
It has been allowed in certain instances on the
ground of special and important reasons clearly
stated in the petition, such as:
(1) when dictated by the public welfare and the
advancement of public policy;
(2) when demanded by the broader interest of
justice;
(3) when the challenged orders were patent
nullities; or
(4) when analogous exceptional and compelling
circumstances called for and justified the
immediate and direct handling of the case.
(Palafox, Jr., vs. Mendiola, G.R. No. 209551,
February 15, 2021, J. Hernando)
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.
The doctrine of hierarchy of courts dictates that
direct recourse to this Court is allowed only to
resolve questions of law, notwithstanding the
invocation of paramount or transcendental
importance of the action (Gios-Samar, Inc. vs.
DoTC, G.R. No. 217158, March 12, 2019).
D. DOCTRINE OF NON-INTERFERENCE
/JUDICIAL STABILITY
The doctrine of judicial stability or non-
interference in the regular orders or judgments
of a co-equal court is an elementary principle in
the administration of justice: no court can
interfere by injunction with the judgments
or orders of another court of concurrent
jurisdiction having the power to grant the
relief sought by the injunction. (Metro Rail
Transit Development Corp. v. Trackworks Rail
Transit Advertising, Vending and Promotions,
Inc., G.R. No. 204452, June 28, 2021, J.
Hernando)
General Courts of equal and coordinate
Rule 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).
Exception 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).
This is in consonance with the
well-established principle that no
man shall be affected by any
proceeding to which he is a
stranger (Sps. Crisologo v.
Omelio, A.M. No. RTJ-12-2321,
03 Oct. 2012, citing Sec. 16, Rule
39, ROC, as amended, and
quoting Naguit v. CA, G.R. No.
137675, 05 Dec. 2000).
Courts cannot enjoin judgments or orders
of a co-equal court
No court can interfere by injunction with the
judgments or orders of another court of
concurrent jurisdiction (Mañalac vs. Hon. Gellada,
A.M. No. RTJ-18-2535).
5
A Regional Trial Court has no power or authority exercise of that power or upon the rightfulness of
to nullify or enjoin the enforcement of a writ of the decisions made. Jurisdiction should therefore
possession issued by another Regional Trial Court be distinguished from the exercise of jurisdiction.
(Suico Industrial Corporation vs. CA, G.R. No.
The authority to decide a cause at all, and not the
123050, January 20, 1999).
decision rendered therein, is what makes up
Rationale: The rationale for the rule is founded jurisdiction. Where there is jurisdiction of the
on the concept of jurisdiction: a court that person and subject matter, the decision of all
acquires jurisdiction over the case and renders other questions arising in the case is but an
judgment therein has jurisdiction over its exercise of that jurisdiction. (Herrera vs. Barretto,
judgment, to the exclusion of all other coordinate G.R. No. 8692, September 10, 1913)
courts, for its execution and over all its incidents,
and to control, in furtherance of justice, the
conduct ofministerial officers acting in connection Authority of the Court falls under the
with this judgment. (Metro Rail Transit Judicial Branch of the Government
Development Corp. v. Trackworks Rail Transit
Advertising, Vending and Promotions, Inc., G.R. General Rule Exception
No. 204452, June 28, 2021, J. Hernando) Judicial power rests with when these
the Supreme Court and executive and
Applicability of Doctrine of Non- the lower courts, the legislative
Interference to administrative bodies judicial branch of the branches of the
government as government
When the law provides for an appeal from the established by law. perform quasi-
decision of an administrative body to the judicial function
Supreme Court or Court of Appeals, it means that Its duty is to settle actual
such body is co-equal with the Regional Trial controversies involving
Court in terms of rank and statute, and logically rights which are legally
beyond the control of the latter (Philippines Sinter demandable and
Corporation vs. Cagayan Electric Power and Light enforceable
Co., Inc., G.R. No. 127371, April 25, 2002).
That is why the legislative
and the executive
II. Jurisdiction branches of the
government generally do
General Concepts not have authority to hear
and decide a case.
Jurisdiction is defined as the power and authority (Sec. 1, Art. VIII, 1987 Constitution)
of a court to hear, try and decide the case (Cruz
Jurisdiction is vested in the Court, not in
v. Court of Appeals, G.R. No. 238640, July 1,
the Judges
2020)
The jurisdiction is vested in the court, not in the
In its expanded concept, it includes the authority judges. A court may exist without a judge. There
of the court to execute and enforce the same may be a judge without a court. Jurisdiction is
judgment thereon. (Echegaray vs. Secretary of vested in the court and not in the judge. (Bacalso
vs. Ramolete, G.R. No. L-22488, October 26,
Justice, 301 SCRA 96)
1967)
Since it is the power to hear and determine, it
does not depend either upon the regularity of the

6
And when a case is filed in one branch, Such jurisdiction of a
jurisdiction over the case does not attach to the court, whether in
branch or judge alone, to the exclusion of the criminal or civil cases,
other branches. Trial may be held or proceedings once it attaches cannot
continue by and before another branch or judge. be ousted by a
It is for this reason that Section 57 of the subsequent
Judiciary Act expressly grants to the Secretary of happenings or events,
Justice, the administrative right or power to although of a character
apportion the cases among the different which would have
branches, both for the convenience of the parties prevented jurisdiction
and for the coordination of the work by the from attaching in the
different branches of the same court. The first instance. (Republic
apportionment and distribution of cases does not v. Miller, G.R. No.
involve a grant or limitation of jurisdiction, the 125932, April 21, 1999)
jurisdiction attaches and continues to be vested Note: The Court acquires jurisdiction over any
in the Court of First Instance of the province, and case upon the payment of prescribed docket
the trials may be held by any branch or judge of fees. (Heirs of Dragon v. The Manila Banking
the court. (Maloles II vs. Phillips, G.R. No. Corp., G.R. No. 205068, March 6, 2019)
129505, 2000 Jan 31, 2nd Division)

Court distinguished from a Judge A. CLASSIFICATION OF JURISDICTION

Court Judge
is a tribunal officially is simply an officer of 1. ORIGINAL VS. APPELLATE
assembled under such tribunal
authority of law Original and appellate jurisdiction are exclusive of
is an office; is an is a public officer; the each other which must be conferred by law. One
organ of the person or judge who does not flow from, nor is inferred from, the
government sits on the Court other. (Garcia vs. De Jesus, G.R. No.
is a being in is a physical person 88158, March 4, 1992)
imagination
comparable to a Original Appellate
corporation Jurisdiction Jurisdiction
(Riano, Civpro vol. 1 Bar Lecture Series, 2022 ed., As to Nature
pp. 28-29) The power of the The power and
court to take judicial authority conferred
cognizance of a case upon a superior court
Determination of Jurisdiction instituted for judicial to rehear and
action for the first determine causes
General Rule Exception time under the which have been tried
The jurisdiction of the Unless a subsequent conditions provided in lower courts, the
court is determined by statute provides for by law (Tan, Civil cognizance which a
the statute in force at its retroactive Procedure, A Guide superior court takes
the time of the application, as when for the Bench and the of a case removed to
commencement of the it is a curative Bar, Book I, 2020, p. it, by appeal or writ of
action. (Narra Nickel legislation (Batong 121) error, from the
Mining v. Redmont, Buhay Gold Mines, decision of a lower
G.R. No. 195580, Inc. v. Dela Serna, court, or the review
2014) G.R. No. 86963 by a superior court of
(Resolution), August the final judgment or
6, 1999) order of some lower

7
 courts. (Tan, Civil
Procedure, A Guide CA and SC do not have original jurisdiction over
for the Bench and the criminal cases compared to Sandiganbayan
Bar, Book I, 2020, pp. who both possess original jurisdiction on both
124-125) criminal and civil cases.
Illustration
A court is one with A court is one with If A as a lessor of an apartment unit files a case
original jurisdiction appellate jurisdiction of unlawful detainer against B, the lessee of an
when actions or when it has the power apartment unit and the law confers that
proceedings are of review over the authority upon the Municipal Trial Court, the
originally filed with it. decisions or orders of Municipal Trial Court exercises original
(Riano, Civpro vol. 1 a lower court. (Riano, jurisdiction.
Bar Lecture Series, Civpro vol. 1 Bar
2022 ed., p. 25) Lecture Series, 2022 If the same case is brought to the Regional
ed., p. 25) Trial Court, the Regional Trial Court does not
As to Courts which can exercise such exercise original jurisdiction but appellate
jurisdiction jurisdiction. If the Regional Trial Court affirms
(1) Supreme Court; (1) Supreme Court; the decision of the Municipal Trial Court and
(2) Court of (2) Court of the obligor brings that up on a petition for
Appeals; Appeals; review to the Court of Appeals, the Court of
(3) Sandiganbayan; (3) Sandiganbayan; Appeals exercises appellate jurisdiction.
(4) Court of Tax (4) Court of Tax
Appeals; Appeals; If the Court of Appeals affirms the decision of
(5) Regional Trial (5) Shari'ah the Regional Trial Court and brings that up
Court; Appellate under Rule 45 to the Supreme Court, the
(6) Shari'ah Courts; Supreme Court exercises appellate jurisdiction.
District/Circuit (6) Regional Trial
Court; Court; and 2. GENERAL VS. SPECIAL
(7) Metropolitan (7) Shari'ah District
Trial Court, Court. General Special
Municipal Trial (Tan, Civil Procedure, Jurisdiction Jurisdiction
Court in Cities, A Guide for the Bench As to Nature
Municipal Trial and the Bar, Book I, The power of the One which restricts
Court, and 2020, p. 125) court to adjudicate all the court's jurisdiction
Municipal Circuit controversies except only to particular
Trial Court those expressly cases and subject to
(8) Shari'ah Circuit withheld from the such limitations as
Court. plenary powers of the may be provided by
(Tan, Civil Procedure, court. It extends to all the governing law. It
A Guide for the Bench controversies which is confined to
and the Bar, Book I, may be brought particular causes, or
2020, p. 122) before a court within which can be
the legal bounds of exercised only under
Note: rights and remedies. the limitations and
MTC do not have appellate jurisdiction. (Tan, Civil Procedure, circumstances
A Guide for the Bench prescribed by the
Barangay is not a court, so once it is brought and the Bar, Book I, statute. (Tan, Civil
to the MTC it is in the exercise of original 2020, p. 119) Procedure, A Guide
jurisdiction of the MTC never appellate because for the Bench and the
MTC do not have appellate jurisdiction.

8
Courts of general Bar, Book I, 2020, p. 121106, February 20, (7) Regional Trial
jurisdiction are those 120) 2002) Court acting:
with competence to (a) as a Family
decide on their own Court can
jurisdiction and take Courts of special entertain
cognizance of all (limited) jurisdiction cases over
cases, civil and are those which have marriage or
criminal, of a jurisdiction only for a marital
particular nature. particular purpose or relations
(Riano, Civpro vol. 1 are clothed with cases
Bar Lecture Series, special powers for the (b) as a Special
2022 ed., p. 25) performance of Commercial
specified duties Courts can
beyond which they entertain
have no authority of cases over
any kind (Riano, violation of
Civpro vol. 1 Bar the
Lecture Series, 2022 Intellectual
ed., p. 25) Itoperty
Code.
It is, in other words, (c) as a court of
that which is confined limited
to particular causes or jurisdiction
which can be over, among
exercised only under others,
limitations and cadastral and
circumstances land
prescribed by statute registration
(Unduran v. cases.
Aberasturi, G.R. No. Illustration
181284, April 18, IN THE ABSENCE OF ALL the Regional Trial
2017). Judges in a province or city, any Metropolitan
As to Courts which can exercise such Trial Judge, Municipal Trial Judge, Municipal
jurisdiction Circuit Trial Judge - may hear and decide
The Regional Trial (1) Sandiganbayan; petitions
Court, formerly the (2) Court of Tax (1) for a writ of habeas corpus or
court of first instance, Appeals; (2) applications for bail in criminal cases in
is a court of general (3) Shari'ah District the province or city where the absent
jurisdiction. All cases, Court; Regional Trial Judges sit. (Sec. 35, BP
the jurisdiction over (4) Regional Trial 129)
which is not Court;
specifically provided (5) Shari'ah Circuit 3. EXCLUSIVE VS. CONCURRENT
for by law to be within Court;
the jurisdiction of any (6) Metropolitan Exclusive Concurrent
other court, fall under Trial Court, Jurisdiction Jurisdiction
the jurisdiction of the Municipal Trial As to Nature
regional trial court. Court, Municipal It is the power or It is the power
(Durisol Philippines, Circuit Trial authority of the court conferred upon
Inc. vs. Court of Court. to hear and different courts,
Appeals, G.R. No. determine cases to whether of the same

9
the exclusion of all or different ranks, to litigation is prohibition, and
other courts. take cognizance at incapable of mandamus against
the same stage of the pecuniary the Regional Trial
Exclusive original same case in the estimation (Sec. Courts (Sec. 5, Art.
jurisdiction - The same or different 19[1], B.P. 129, as VIII, Constitution
power of the court to judicial territories. amended); of the Philippines;
take judicial (Tan, Civil Procedure, Sec. 9[1], B.P.
cognizance of a case A Guide for the Bench (c) The Court of 129);
instituted for judicial and the Bar, Book I, Appeals has
action for the first 2020, p. 126) exclusive original (c) The Supreme
time under the jurisdiction over Court has
conditions provided Where concurrent actions for concurrent original
by law, and to the jurisdiction exists in annulment of jurisdiction with
exclusion of all other several tribunals, the judgments of the the Court of
courts. (Tan, Civil body that first takes Regional Trial Appeals and the
Procedure, A Guide cognizance of the Court (Sec. 9[2], Regional Trial
for the Bench and the complaint shall B.P. 129, as Courts in petitions
Bar, Book I, 2020, p. exercise jurisdiction to amended). for certiorari,
122) the exclusion of the prohibition, and
others. (Pat-og, Sr. (Riano, Civpro vol. 1 mandamus against
vs. Civil Service Bar Lecture Series, lower courts and
Commission, G.R. No. 2022 ed., p. 27) bodies and in
198755, June 5, petitions for quo
2013) warranto and
As to Courts which can exercise such habeas corpus
jurisdiction (Sec. 5, Art. VIII,
A court may be (a) The Supreme Constitution of the
conferred both Court has Philippines; Sec.
original and exclusive concurrent original 9[1], B.P. 129;
jurisdiction over a jurisdiction with Sec. 21[1], B.P.
particular subject Regional Trial 129).
matter. Examples: Courts in cases
affecting (Riano, Civpro vol. 1
(a) The Municipal ambassadors, Bar Lecture Series,
Trial Court has other public 2022 ed., pp. 27-28)
exclusive original ministers, and
jurisdiction over consuls (Sec. 5,
cases of forcible Art. VIII, Exclusive Jurisdiction
entry and unlawful Constitution of the
detainer (Sec. Philippines; Sec. In a number of cases, the Court has upheld the
33[2], B.P. 129, as 21[2], B.P. 129); original and exclusive jurisdiction of the RTC,
amended); sitting as SAC, over all petitions for determination
(b) The Supreme of just compensation to landowners in
(b) The Regional Trial Court has accordance with Section 57 of RA No. 6657.
Court has concurrent original DAR has primary jurisdiction to determine and
exclusive original jurisdiction with adjudicate agrarian reform matters and
jurisdiction over the Court of exclusive original jurisdiction over all matters
all civil actions in Appeals in involving the implementation of agrarian reform,
which the subject petitions for except those falling under the exclusive
matter of the certiorari, jurisdiction of the DA and the DENR. Further

10
exception to the DAR's original and exclusive
jurisdiction are all petitions for the determination
of just compensation to landowners and the
prosecution of all criminal offenses under RA No.
6657, which are within the jurisdiction of the RTC
sitting as a Special Agrarian Court. Thus,
jurisdiction on just compensation cases for the
taking of lands under RA No. 6657 is vested in the
courts. (Land Bank of the Phils. v. Honeycomb
Farms Corp., G.R. No. 166259, November 12,
2012)
Concurrent Jurisdiction
Supreme Court has original jurisdiction over an
action for quo warranto
Section 5, Article VIII of the Constitution, in part,
provides that the Supreme Court shall exercise
original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto,
and habeas corpus. This Court, the Court of
Appeals and the Regional Trial Courts have
concurrent jurisdiction to issue the extraordinary
writs, including quo warranto.
Relatedly, Section 7, Rule 66 of the Rules of Court
provides that the venue of an action for quo
warranto, when commenced by the Solicitor
General, is either the Regional Trial Court in the
City of Manila, in the Court of Appeals, or in the
Supreme Court.
While the hierarchy of courts serves as a general
determinant of the appropriate forum for
petitions for the extraordinary writs, a direct
invocation of the Supreme Court's original
jurisdiction to issue such writs is allowed when
there are special and important reasons therefor,
clearly and specifically set out in the petition. In
the instant case, direct resort to the Court is
justified considering that the action for quo
warranto questions the qualification of no less
than a Member of the Court. The issue of whether
a person usurps, intrudes into, or unlawfully holds
or exercises a public office is a matter of public
concern over which the government takes special
interest as it obviously cannot allow an intruder
or impostor to occupy a public position. The
instant petition is a case of
transcendental importance (Republic v. Sereno,
G.R. No. 237428, May 11, 2018)
First one who took cognizance of the case shall
assume jurisdiction
On the question of jurisdiction, it is beyond
dispute that the Ombudsman and the General
Court Martial of the AFP have concurring or
coordinate jurisdiction over administrative
disciplinary cases involving erring military
personnel, particularly over violations of the
Articles of War that are service-connected.
In the case of Ombudsman vs. Mislang, the
Ombudsman has no authority to try the case,
given the fact that a concurrent court had already
tried and ruled on the same set of facts and
evidence.
In case of courts/administrative agencies having
concurrent jurisdiction, the first one who took
cognizance of the case shall assume jurisdiction,
to the exclusion of the others. In fact, the case
in the GMC was earlier filed than of that of the
Ombudsman.
Further, the records show that a letter was sent
to the Ombudsman, as early as 2009, two (2)
years from the latter‘s decision on 2011. Thus,
they could have desisted earlier but refused to do
so. (Office of the Ombudsman v. Mislang, G.R.
No. 207926, October 15, 2018)
Three very important principles whenever we are
confronted with concurrent jurisdiction.
They are:
• Principle of hierarchy of court - a direct resort
to a higher court will not be allowed, unless
the remedy is fist availed of at the lower court
• Transcendental importance - an exception to
the principle of the hierarchy of courts,
exceptional and compelling circumstances,
such as eases of national interest and with
serious implications must be advanced justify
the availment of the extraordinary remedy of
writ of certiorari, prohibition, or mandamus
calling for the exercise of its primary
jurisdiction.
11
• That the Supreme Court is not a trier of facts
4. Other Doctrines And Principles On
Jurisdiction
(a) Limited jurisdiction
One which restricts the court's jurisdiction only to
particular cases and subject to such limitations as
may be provided by the governing law. It is
confined to particular causes, or which can be
exercised only under the limitations and
circumstances prescribed by the statute. (Tan,
Civil Procedure: A Guide for the Bench and the
Bar, Book I, 2020, p. 3)
It is the jurisdiction of the court that can handle
only specific subject matters like a probate court
or MTC handling unlawful detainer and forcible
entry cases as limited jurisdiction that it can only
resolve, the issue of possession. It cannot resolve
the issue of ownership, limited jurisdiction.
The RTC when it takes cognizance of a petition
for probate of a will, it cannot resolve other issue
but only the extrinsic validity of the will, in its
limited jurisdiction.
General The jurisdiction of the trial court,
Rule 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.
As held in several cases, a
probate court or one in charge of
estate proceedings, whether
testate or intestate, cannot
adjudicate or determine title to
properties claimed to be a part of
the estate and which are claimed
to belong to outside parties, not
by virtue of any right of
inheritance from the deceased
but by title adverse to that of the
deceased and his estate. All that
the said court could do as
regards said properties is to
determine whether or not they
should be included in the
inventory of properties to be
administered by the
administrator. If there is no
dispute, there poses no problem,
but if there is, then the parties,
the administrator, and the
opposing parties have to resort
to an ordinary action before a
court exercising general
jurisdiction for a final
determination of the conflicting
claims of title.
Exception The above rule is subject to
exceptions as justified by
expediency and convenience.
First, the probate court may
provisionally pass upon in an
intestate or a testate proceeding
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.
Second, 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
12
 property in the inventory is
conjugal or exclusive property of (c) Exhaustion of administrative
the deceased spouse. remedy
(Agtarap v. Agtarap, G.R. Nos. 177099 & 177192,
June 8, 2011) Purpose of exhaustion of administrative
(b) Primary jurisdiction remedy

Primary jurisdiction is the power and authority The thrust of the rule on exhaustion of
vested by the Constitution or by statute upon an administrative remedies is that courts must allow
administrative body to act upon a matter by virtue administrative agencies to carry out their
of its specific competence. functions and discharge their responsibilities
within the specialized areas of their respective
Courts must refrain from determining a competence. To this end, administrative agencies
controversy involving a question which is within are afforded a chance to correct any previous
the jurisdiction of the administrative tribunal, error committed in its forum. Furthermore,
where the question demands the exercise of reasons of law, comity, and convenience prevent
sound administrative discretion requiring the the courts from entertaining cases proper for
special knowledge, experience and services of the determination by administrative agencies. (Pio
administrative tribunal on technical and intricate Delos Reyes [Deceased], Represented by Heirs
matters of fact. (Rosito Bagunu vs. Spouses Fidel Delos Reyes, et al. vs. Honorable Waldo Q.
Francisco Aggabao 86 Rosenda Acerit, G.R. No. Flores, G.R. No. 168726, March 5, 2010)
186487, August 15, 2011)
(d) Equity jurisdiction
It is the jurisdiction of administrative agencies
prior to regular courts by reason of their expertise A court adjudicates a controversy according to
on the subject matter. the common precepts of what is right (Tan, Civil
Procedure: A Guide for the Bench and the Bar,
It may occur that the Court has jurisdiction to Book I, 2020, p. 2)
take cognizance of a particular case, which means
that the matter involved is also judicial in Equity Jurisdiction is the power of a court to issue
character. However, if the case is such that its an order even if the court has lost jurisdiction only
determination requires the expertise, specialized for the purpose of preventing unjust enrichment
skills and knowledge of the proper administrative and to ensure justice is served. (Regulus
bodies because technical matters or intricate Development, Inc. v. Dela Cruz, G.R. No. 198172,
questions of fact are involved, then relief must January 25, 2016)
first be obtained in an administrative proceeding
before a remedy will be supplied by the courts Equity jurisdiction versus appellate
even though the matter is within the proper jurisdiction of the RTC
jurisdiction of the court. (Pimentel v. Senate
Committee as a Whole, G.R. No. 187714, March Appellate Equity
8, 2011) Jurisdiction of Jurisdiction of the RTC
the RTC
This precludes courts from resolving, in the first The appellate equity jurisdiction aims to
instance, controversies falling under the jurisdiction of provide complete justice in
jurisdiction of administrative agencies. Courts courts is cases where a court of law
recognize that administrative agencies are better conferred by is unable to adapt its
equipped to settle factual issues within their law. The judgments to the special
specific field of expertise because of their special appellate court circumstances of a case
skills and technical knowledge. (Cabungcal v. acquires because of a resulting legal
Lorenzo, G.R. No. 160367, December 18, 2009) jurisdiction over inflexibility when the law is

13
 the subject applied to a given situation. (Development Bank of the Philippines v. Carpio,
matter and The purpose of the exercise G.R. No. 195450, February 1, 2017)
parties when an of equity jurisdiction,
appeal is among others, is to prevent Sec. 9, Rule 41 of the Rules explains that the
perfected. unjust enrichment and to court of origin loses jurisdiction over the case only
ensure restitution. upon the perfection of the appeal filed in due time
(Regulus Development, Inc. v. Dela Cruz, G.R. by the appellant and the expiration of the time to
No. 198172, January 25, 2016) appeal of the other parties. Withal, prior to the
transmittal of the original records of the case to
(e) Residual jurisdiction the CA, the RTC may issue orders for the
protection and preservation of the rights of the
Residual jurisdiction refers to the authority of the prevailing party, as in this case, the issuance of
trial court to issue orders for the protection and the writ of execution because the respondent's
preservation of the rights of the parties which do appeal was not perfected. (Agustus Gonzales and
not involve any matter litigated by the appeal; to Spouses Nestor Victor and Maria Lourdes
approve compromises; to permit appeals by Rodriguez vs. Quirico Pe, G.R. No. 167398,
August 9, 2011)
indigent litigants; to order execution pending
appeal in accordance with Section 2, Rule 39; Residual jurisdiction vs Residual
and to allow the withdrawal of the appeal, Prerogatives
provided these are done prior to the transmittal
of the original record or the record on appeal, Residual Residual
even if the appeal has already been perfected or prerogatives jurisdiction
despite the approval of the record on appeal or in It contemplates the It is the authority of
authority of the the court to issue
case of a petition for review under Rule 42,
higher court where protective orders,
before the CA gives due course to the petition. the case was approve compromises,
appealed to dismiss etc. even after it lost
The "residual jurisdiction" of the trial court is the case motu proprio its jurisdiction by
available at a stage in which the court is normally virtue of a perfected
deemed to have lost jurisdiction over the case or appeal but prior to
the subject matter involved in the appeal. This transmittal of records
or approval by the
stage is reached upon the perfection of the
appellate court.
appeals by the parties or upon the approval of the Residual Prerogatives The "residual
records on appeal, but prior to the transmittal of under Section 1 of jurisdiction" of trial
the original records or the records on appeal. In Rule 9 of the Rules of courts is available at a
either instance, the trial court still retains its so- Court, defenses and stage in which the
called residual jurisdiction to issue protective objections not court is normally
pleaded either in a deemed to have lost
orders, approve compromises, permit appeals of
motion to dismiss or jurisdiction over the
indigent litigants, order execution pending
in the answer are case or the subject
appeal, and allow the withdrawal of the appeal. deemed waived, matter involved in the
except when: appeal. This stage is
From the foregoing, it is clear that before the trial (1) lack of jurisdiction reached upon the
court can be said to have residual jurisdiction over over the subject perfection of the
a case, a trial on the merits must have been matter, appeals by the parties
(2) litis pendentia, or upon the approval
conducted; the court rendered judgment; and the
(3) res judicata and of the records on
aggrieved party appealed therefrom.

14
(4) prescription is appeal, but prior to Residual jurisdiction
evident from the the transmittal of the
pleadings or the original records or the Residual jurisdiction refers to the authority of the
evidence on records on appeal. In trial court to issue orders for the protection and
record. either instance, the preservation of the rights of the parties which do
trial court still retains not involve any matter litigated by the appeal; to
In the four excepted its so-called residual approve compromises; to permit appeals by
instances, the court jurisdiction to issue indigent litigants; to order execution pending
shall motu proprio protective orders, appeal in accordance with Section 2, Rule 39;
dismiss the claim or approve compromises, and to allow the withdrawal of the appeal,
action. (Katon v. permit appeals of provided these are done prior to the transmittal
Palanca, Jr., G.R. No. indigent litigants, of the original record or the record on appeal,
151149, Sep. 7, order execution even if the appeal has already been perfected or
2004) pending appeal, and despite the approval of the record on appeal or in
allow the withdrawal case of a petition for review under Rule 42,
of the appeal. (Katon before the CA gives due course to the petition.
v. Palanca, Jr., G.R.
No. 151149, Sep. 7, The "residual jurisdiction" of the trial court is
2004) available at a stage in which the court is normally
deemed to have lost jurisdiction over the case or
Residual Prerogative the subject matter involved in the appeal. This
stage is reached upon the perfection of the
In Gumabon v. Larin we explained thus: appeals by the parties or upon the approval of the
"The motu proprio dismissal of a case was records on appeal, but prior to the transmittal of
traditionally limited to instances when the court the original records or the records on appeal. In
clearly had no jurisdiction over the subject matter either instance, the trial court still retains its so-
and when the plaintiff did not appear during called residual jurisdiction to issue protective
trial, failed to prosecute his action for an orders, approve compromises, permit appeals of
unreasonable length of time or neglected to indigent litigants, order execution pending
comply with the rules or with any order of the appeal, and allow the withdrawal of the appeal.
court. Outside of these instances, any motu From the foregoing, it is clear that before the trial
proprio dismissal would amount to a violation of court can be said to have residual jurisdiction over
the right of the plaintiff to be heard. Except for a case, a trial on the merits must have been
qualifying and expanding Sec. 2, Rule 9, and Sec. conducted; the court rendered judgment; and the
3, Rule 17, of the Revised Rules of Court, the aggrieved party appealed therefrom.
amendatory 1997 Rules of Civil Procedure (Development Bank of the Philippines v. Carpio,
brought about no radical change. Under the G.R. No. 195450, February 1, 2017)
new rules, a court may motu proprio dismiss a
claim when it appears from the pleadings or Note: Sec. 9 of Rule 41, provides for two issues,
evidence on record that it has no jurisdiction over perfection of appeal and expiration of the period
the subject matter; when there is another cause to appeal. Under this is the word “and” because
of action pending between the same parties for the court does not loss jurisdiction over the case
the same cause, or where the action is barred by upon perfection of the appeal but rather upon
a prior judgment or by statute of limitations. expiration of period to appeal. So if there are
(Katon v. Palanca, Jr., G.R. No. 151149, multiple defendants and who might receive
September 7, 2004) copies of the judgment in different dates, the last
day to appeal is basis or the determinant of the
loss of jurisdiction. Residual jurisdiction start
upon the expiration of the period to appeal.

15
Illustration:
If A files a case against B, C, D they are three
defendants. Judgment was rendered in favor of
A, but B, C, D received a copy of judgment
against them on different dates.
B – March 10
C – March 15
D – March 20
If on March 12 X files a notice of appeal the
question is when is appeal perfected?
Under Sec. 9 of Rule 41, appeal was perfected on
March 12, only as to B but appeal was never
perfected as to C and D, since they did not file a
notice of appeal.
But if the question is when did court loss
jurisdiction over the case, the answer is upon
expiration of the period to appeal but considering
that BCD received a copy of the judgment on a
different date, 10, 15 and 20, they have 15 days
within which to appeal will loss jurisdiction only
upon the expiration of the period to appeal by D.
So, from the 20th counting 15 days, the court will
loss jurisdiction only after the 4th of April.
And in applying the definition of residual
jurisdiction by April 5 the trial court has already
lost jurisdiction but it can still exercise what we
call residual jurisdiction, because that jurisdiction
will still remain in the trial court.
So if A, the plaintiffs files a motion an execution
pending appeal, where should he file it?
A can file it with the RTC because the court can
still entertain that motion exercising residual
jurisdiction.
(f) Epistolary jurisdiction
In the case of Resident Marine Mammals vs.
Reyes, the Court used the term "epistolary
jurisdiction" when it said:
Petitioners Resident Marine Mammals and
Stewards also aver that this Court may lower the
benchmark in locus standi as an exercise of
epistolary jurisdiction.
That the Resident Marine Mammals and the
human petitioners also assert that through this
case, this court will have the opportunity to lower
the threshold for locus standi as an exercise of
"epistolary jurisdiction. (Resident Marine
Mammals of the Protected Seascape Tañon Strait
v. Reyes, G.R. Nos. 180771 & 181527, April 21,
2015)
Epistolary jurisdiction is the power and authority
of the court to hear, try, and decide a case arising
from a letter petition introduced by a third
person, rather than the aggrieved party, for
the protection of public interest, pursuant to the
concept of Judicial Activism.
(g) Split jurisdiction
The Supreme Court agrees with the ruling of the
Court of Appeals (CA) that since appellate
jurisdiction over private respondents’ complaint
for tax refund is vested in the Court of Tax
Appeals (CTA), it follows that a petition for
certiorari seeking nullification of an interlocutory
order issued in the said case should, likewise, be
filed with the same court. If this Court were to
sustain petitioners’ contention that jurisdiction
over their certiorari petition lies with the CA, this
Court would be confirming the exercise by two
judicial bodies, the CA and the CTA, of jurisdiction
over basically the same subject matter · precisely
the split-jurisdiction situation which is anathema
to the orderly administration of justice. The Court
cannot accept that such was the legislative
motive, especially considering that the law
expressly confers on the CTA, the tribunal with
the specialized competence over tax and tariff
matters, the role of judicial review over local tax
cases without mention of any other court that
may exercise such power. Thus, the Court agrees
with the ruling of the CA that since appellate
jurisdiction over private respondents’ complaint
16
for tax refund is vested in the CTA, it follows that
a petition for certiorari seeking nullification of an
interlocutory order issued in the said case should,
likewise, be filed with the same court. 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 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 ofsuch appellate jurisdiction. The supervisory
power or jurisdiction of the CTA to issue a
writ of certiorari in aid of its appellate jurisdiction
should co-exist with, and be a complement to, its
appellate jurisdiction to review, by appeal, the
final orders and decisions of the RTC, in order to
have complete supervision over the acts of the
latter. (City of Manila v. Grecia-Cuerdo, G.R. No.
175723, February 4, 2014)
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. For this
purpose, it may, when necessary, prohibit or
restrain the performance of any act which might
interfere with the proper exercise of its rightful
jurisdiction in cases pending before it. (CE
Casecnan Water & Energy Co., Inc. v. Province of
Nueva Ecija, G.R. No. 196278, June 17, 2015)
(h) Expanded/Extended jurisdiction
The judicial power shall be vested in one Supreme
Court and in such lower courts as may be
established by law. (Sec. 1[2], Art. VIII, 1987
Constitution)
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
The Court's expanded jurisdiction, social rights,
and the Court's constitutional rule-making power
under the 1987 Constitution.
With the 1987 Philippine Constitution came
significant developments in terms of the Court's
judicial and rule-making powers.
First, judicial power is no longer confined to its
traditional ambit of settling actual controversies
involving rights that were legally demandable and
enforceable.
The second paragraph of Section 1, Article VIII of
the 1987 Constitution provides that judicial power
also includes the duty of the courts "x x x to
determine whether or not there has been a grave
abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of the government." In Araullo v.
Aquino III, former Associate (now Chief) Justice
Bersamin eruditely explained:
The Constitution states that judicial power
includes the duty of the courts of justice not only
"to settle actual controversies involving rights
which are legally demandable and enforceable"
but also "to determine whether or not there has
been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." It
has thereby expanded the concept of judicial
power, which up to then was confined to its
traditional ambit of settling actual controversies
17
involving rights that were legally demandable and
enforceable.
With respect to the Court, however, the remedies
of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of
certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a
tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but
also to set right, undo and restrain any act of
grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or
instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or
ministerial functions. (Gios-Samar, Inc. v.
Department of Transportation and
Communications, G.R. No. 217158, March 12,
2019)
B. DOCTRINES OF HIERARCHY OF
COURTS AND ADHERENCE OF
JURISDICTION
Doctrine of Judicial Hierarchy
The doctrine on hierarchy of courts is a practical
judicial policy designed to restrain parties from
directly resorting to this Court when relief may be
obtained before the lower courts. The logic
behind this policy is grounded on the need
to prevent "inordinate demands upon the
Court's time and attention which are better
devoted to those matters within its
exclusive jurisdiction," as well as to
prevent the congestion of the Court's
dockets. Hence, for this Court to be able to
"satisfactorily perform the functions assigned to it
by the fundamental charter," it must remain as a
"court of last resort." This can be achieved by
relieving the Court of the "task of dealing with
causes in the first instance. (Patdu, Jr. v. Carpio-
Morales, G.R. No. 230171, [September 27, 2021,
J. Hernando, citing Ha Datu Tawahig v.
Lapinid and Aala v. Mayor Uy)
Doctrine of judicial hierarchy 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
remain so 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. However, this doctrine is not mere
policy, rather, it is a constitutional filtering
mechanism designed to enable the Court to focus
on the more fundamental and essential tasks
assigned to it by the highest law of the land.
(Gios-Samar, Inc. v. Department of
Transportation and Communications, G.R. No.
217158, March 12, 2019)
Thus, lower courts shall initially decide a case
before it is considered by a higher court. A higher
court will not entertain direct resort to it unless
the redress desired cannot be obtained in the
appropriate courts. (Santiago v. Vasquez, G.R.
Nos. 99289-90, 27 Jan. 1993)
Rationale: The rationale for this rule is three-
fold:
(1) to prevent inordinate demands upon the
Court's time and attention which are better
18
 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. v. Department of
Transportation and Communications, G.R.
No. 217158, March 12, 2019)
of Jurisdiction Exceptions to the Doctrine of
Hierarchy of Courts
[T]he doctrine on hierarchy of courts is not an
inflexible rule. In Spouses Chua v. Ang, this Court
held that "[a] strict application of this rule may
be excused when the reason behind the rule is
not present in a case[.]" This Court has
recognized that a direct invocation of its original
jurisdiction may be warranted in exceptional
cases as when there are compelling reasons
clearly set forth in the petition, or when what is
raised is a pure question of law.
In a fairly recent case, we summarized other well-
defined exceptions to the doctrine
on hierarchy of courts. Immediate resort to this
Court may be allowed when any of the following
grounds are present:
(1) when genuine issues of constitutionality
are raised that must be addressed
immediately;
(2) when the case involves transcendental
importance;
(3) when the case is novel;
(4) when the constitutional issues raised are
better decided by this Court;
(5) when time is of the essence;
(6) when the subject of review involves
acts of a constitutional organ;
(7) when there is no other plain, speedy,
adequate remedy in the ordinary
course of law;
(9) when the petition includes questions that
may affect public welfare, public policy, or
demanded by the broader
interest of justice;
(10) when the order complained of was a
patent nullity; and
(11) when the appeal was considered as an
inappropriate remedy.
All of these four exceptions attend when it comes
to the certiorari review of non-administrative/
criminal cases of the Ombudsman; hence,
"immediate resort to this Court may be
allowed." (Patdu, Jr. v. Carpio-Morales, G.R. No.
230171, September 27, 2021, J. Hernando)
Note: 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. v.
Department of Transportation and
Communications, G.R. No. 217158, March 12,
2019)
Doctrine of Adherence of Jurisdiction
The jurisdiction of a court depends
upon the state of facts existing at the time it is
invoked, and if the jurisdiction once attaches
to the person and subject matter of
the litigation, the subsequent
happening of events, although they are of such a
character as would have prevented jurisdiction
from attaching in the first instance, will not
operate to oust jurisdiction already
attached. (Ramos v. Central Bank of the
Philippines, G.R. No. L-29352, October 4, 1971)
Once a court acquires jurisdiction over a
controversy, it shall continue to exercise such
jurisdiction until the final determination of the
case and the same is not affected by the
19
subsequent legislation vesting jurisdiction over enactment. (PNB
such proceeding in another tribunal. As a consequence, v. Tejano, G.R.
jurisdiction is not No. 173615, 16
Jurisdiction, once attached, cannot be ousted by affected by a new law Oct. 2009)
placing a proceeding
subsequent happenings or events although of a
under the jurisdiction
character which would have prevented of another tribunal.
jurisdiction from attaching in the first instance,
and the court retains jurisdiction until it finally
disposes of the case. (Aruego, Jr., v. CA, G.R. No. C. JURISDICTION OF VARIOUS
112193, 13 Mar. 1996) PHILIPPINE COURTS AND
TRIBUNALS
Instances when doctrine is not applicable
General Rule Exception
Jurisdiction being a Unless such statute
(1) Where a subsequent statute expressly matter of substantive provides for its
prohibits the continued exercise of law, the established retroactive
jurisdiction; rule is that the application, as where
(2) Where the law penalizing an act which is jurisdiction of the it is a curative
punishable is repealed by a subsequent law; court is determined legislation. It is
(3) When accused is deprived of his by the statute in where the statute exp
constitutional right, such as where the court force at the time of ressly provides, or is
fails to provide counsel for the accused who the commencement construed to the
is unable to obtain one and does not of the action. (Narra effect
intelligently waive his constitutional right; Nickel Mining v. that it is intended to
(4) Where the statute expressly provides, or is Redmont, G.R. No. operate as to actions
construed to the effect that it is intended to 195580, 2014; pending before its
operate as to actions pending before its Republic v. Court of enactment (Atlas
enactment; Appeals, G.R. No. Fertilizer Corp. v.
(5) When the proceedings in the court acquiring 92326, January 24, Navarro, G.R. No.
jurisdiction is terminated, abandoned or 1992) 72074, April 30, 1987)
declared void;
(6) Once appeal has been perfected; and,
Note:
(7) Curative statutes (Herrera, Vol. I, 2007
The Court acquires jurisdiction over any case only
Edition p. 106).
upon the payment of the prescribed docket fee.
Effect of Retroactivity of Laws on (Heirs of Dragon v. The Manila Banking Corp.,
Jurisdiction G.R. No. 205068, March 6, 2019)

General Rule Exceptions When several courts have concurrent jurisdiction,

Jurisdiction being a 1. Where there is an the first court which acquires jurisdiction retains
matter of substantive express provision it to the exclusion of the others. (Nenaria v. Veluz,
law, the established in the statute; G.R. No. L-4683, 1952; Arula v. Espino, G.R. No.
rule is that the statute and L-28949, June 23, 1969)
in force at the time of 2. The statute is
the commencement clearly intended
of the action to apply to
determines actions pending
jurisdiction. before its

20
 1. SUPREME COURT
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 10-14;
1987 Constitution; BP Blg. 129; R.A. 7691; R.A. 11576; R.A. 10660; P.D. 1606)
(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus
against:
(a) Court of Appeals (Sec. 17, R.A. 926);
(b) Commission on Elections (Sec. 7, Art. IX, 1987 Constitution);
(c) Commission on Audit (Sec. 7, Art. IX, 1987 Constitution);
Original and
(d) Court of Tax Appeals, en banc (Sec. 17, R.A. 9282);
Exclusive
(e) Sandiganbayan (P.D. 1606, as amended); and
(f) Appellate Sharia’h Court
(2) Complaints involving graft and corruption and violations of ethical standards,
including anonymous complaints, against Members of the Supreme Court (A.M.
No. 21-08-09-SC)
Actions affecting ambassadors, other public ministers and consuls (B.P. 129,
With Sec. 21[2]; Sec. 5[1], Art. VIII, 1987 Constitution)
the Note: For officials of the diplomatic service occupying the position of consul
RTC and higher the Sandiganbayan has jurisdiction in criminal cases involving
(Sec. 6, Art. VIII, 1987 Constitution; R.A. No. 10660)
ORIGINAL JURISDICTION

(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus
against:
(a) RTC and lower courts (B.P. 129);
(b) National Labor Relations Commission (NLRC) (B.P. 129, Sec. 9);
Note: All such petitions should henceforth be initially filed in the Court of
Appeals in strict observance of the doctrine on the hierarchy of courts as
Original and Concurrent

With
the CA the appropriate forum for the relief desired (St. Martin Funeral Home v.
National Labor Relations Commission, G.R. No. 130866, Sept. 16, 1998)
(c) Civil Service Commission (CSC) (R.A. 7902);
(d) Other quasi-judicial agencies (B.P. 129);
Note: Petition should have been initially filed in the Court of Appeals in
strict observance of the doctrine on the hierarchy of courts. (Heirs of
Hinog v. Melicor, G.R. No. 140954, April 12, 2005)
(2) Petitions for the issuance of a writ of Kalikasan. (Sec. 3, Rule 7, A.M. No.
09-6-8-SC)
(1) Petitions for habeas corpus (B.P. 129; Sec. 5[1], Art. VIII, 1987
Constitution)
(2) Petitions for quo warranto (ibid.)
With (3) Petitions for the issuance of writs of certiorari, prohibition and mandamus
the CA against lower courts or bodies. (ibid.)
and (4) Petitions for the issuance of writ of continuing mandamus in environmental
RTC cases. (Sec. 1, Rule 8, A.M. No. 09-6-8-SC)
(5) Actions brought to prevent and restrain violations of laws concerning
monopolies and combinations in restraint of trade (Sec. 17, R.A. No. 296 as
amended by R.A. No. 5440)

21
 Petitions for certiorari, prohibition, mandamus, habeas corpus, injunctions and
With ancillary writs in aid of its appellate jurisdiction and over petitions of similar
the SB nature. Provided, jurisdiction is not exclusive of the Supreme Court including quo
warranto in PCGG cases. (Sec.4 of R.A. No. 8249)
(1) Petition for writ of amparo (Sec. 3, A.M. No. 07-9-12-SC);
With
(2) Petition for writ of habeas data (Sec. 3, A.M. No. 08-1-16-SC);
the CA,
SB and (3) Petitions for certiorari, prohibition, and mandamus relating to an act or
RTC omission of a municipal trial court, or of a corporation, a board, an officer
or person (1987 Constitution)
From the Court of Appeals, in all criminal cases involving offenses for which the
penalty imposed is reclusion perpetua or life imprisonment; or a lesser penalty
Ordinary is imposed for offenses committed on the same occasion or which arose out of
Appeal the same occurrence that gave rise to the more severe offense for which the
penalty of death is imposed (Sec. 13[c], Rule 124, as amended by A.M. No. 00-
5-03-SC, effective October 15, 2004, Sec. 13[b], Rule 124)
Appeals from the:
(1) Court of Appeals (Sec. 17, R.A. No. 296, as amended by R.A. No. 5440;
Sec. 5[2], Article VIII, 1987 Constitution; Rule 45);
(2) Court of Tax Appeals en banc (Sec. 1, Rule 16, A.M. No. 05-11-07-CTA;
Sec. 1, Rule 45, as amended by A.M. No. 07-7-12-SC; R.A. No. 9282)
(3) Sandiganbayan on pure questions of law, except in cases where the penalty
APPELLATE JURISDICTION

imposed is reclusion perpetua, life imprisonment or death. (Sec. 7, P.D. No.

Appeal by 1606, as amended by R.A. No. 824; Nunez vs Sandiganbayan, G.R. Nos. L-
Certiorari / 50581-50617, January 20, 1982, R.A. No. 433; Rule 45)
Petition for (4) Regional Trial Courts, exercising original jurisdiction in the following cases:
Review on (a) If no question of fact is involved and the cases involves:
Certiorari
Constitutionality or validity of any treaty, international or executive
(Rule 45) agreement, law, presidential decree, proclamation, order, instruction,
ordinance or regulation in question; legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto; or
jurisdiction of lower courts is in issue.
(b) All cases in which only errors of questions of law are involved.
(Sec. 5[2-a, b, c, and e], Article VIII, 1987 Constitution; Sec. 17, R.A.
No. 296 as amended; Sec. 9[3], B.P. Blg. 129; Rule 45; Sec. 2[c], Rule
41; Sec. 3[e], Rule 122)
Petition for certiorari filed within 30 days from notice of the judgment/final
Special Civil order/resolution sought to be reviewed against the following.
Action of
Certiorari
Decision, order or ruling of:
within 30
days (a) Commission on Elections en banc (Sec. 7, Article 1X-A, 1987 Constitution;
(Rule 64)
Aratuc us. COMELEC, No. L-49705-09, February 8, 1979)
(b) Commission on Audit (Ibid., 1987 Constitution)

22
 2. COURT OF APPEALS
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 14-17;
1987 Constitution; BP Blg. 129; R.A. 7691; R.A. 11576)
(1) Actions for annulment of judgments of the RTC on the grounds of extrinsic
fraud and lack of jurisdiction. (Sec. 9[2], B.P. 129; Rule 47)

Original and (2) Review of Decision or Order on Rehabilitation Plan. — An order approving
Exclusive or disapproving a rehabilitation plan can only be reviewed through a
petition for certiorari to the Court of Appeals under Rule 65 of the Rules of
Court (Rule 6, 2013 Financial Rehabilitation Rules of Procedure)

(1) Petitions for writs of certiorari, prohibition, and mandamus against:

(a) RTC and lower courts (B.P. 129);
(b) National Labor Relations Commission (NLRC) (B.P. 129, Sec. 9);
Note: All such petitions should henceforth be initially filed in the Court
of Appeals in strict observance of the doctrine on the hierarchy of courts
as the appropriate forum for the relief desired (St. Martin Funeral Home
v. National Labor Relations Commission, G.R. No. 130866, Sept. 16,
ORIGINAL JURISDICTION

With 1998)
the SC (c) Civil Service Commission (CSC) (R.A. 7902);
(d) Other quasi-judicial agencies (B.P. 129);
Note: Petition should have been initially filed in the Court of Appeals in
Original and Concurrent

strict observance of the doctrine on the hierarchy of courts. (Heirs of

Hinog v. Melicor, G.R. No. 140954, April 12, 2005)

(2) Petitions for the issuance of a writ of Kalikasan. (Sec. 3, Rule 7, A.M. No.
09-6-8-SC)
(1) Petitions for habeas corpus (B.P. 129; Sec. 5[1], Art. VIII, 1987
Constitution)

(2) Petitions for quo warranto (ibid.)

With (3) Petitions for the issuance of writs of certiorari, prohibition and mandamus
the SC against lower courts or bodies. (ibid.)
and
RTC (4) Petitions for the issuance of writ of continuing mandamus in environmental
cases. (Sec. 1, Rule 8, A.M. No. 09-6-8-SC)

(5) Actions brought to prevent and restrain violations of laws concerning

monopolies and combinations in restraint of trade (Sec. 17, R.A. No. 296
as amended by R.A. No. 5440)

23
 (1) Petition for writ of amparo (Sec. 3, A.M. No. 07-9-12-SC);
With (2) Petition for writ of habeas data (Sec. 3, A.M. No. 08-1-16-SC);
the SC, (3) Petitions for certiorari, prohibition, and mandamus relating to an act or
SB and omission of a municipal trial court, or of a corporation, a board, an officer
RTC or person (1987 Constitution)

(1) Appeals from Regional Trial Courts, except those appealable to the
Supreme Court
(2) Appeals from Regional Trial Courts on constitutional, tax, jurisdictional
questions involving questions of fact which should be appealed first to the
Court of Appeals (Sec. 17[4][4] R.A. No. 296 as amended, which was not
intended to be excluded by Sec. 9[3], B.P.Blg. 129)
(3) Appeals from decisions and final orders of the Family Courts (Sec. 14, R.A.
Ordinary
No. 8369)
Appeal by
Notice of (4) Direct Appeal from land registration and cadastral cases decided by
Appeal or Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Record on Courts based on their delegated jurisdiction (Sec. 34, B.P. 129 as amended
Appeal by R.A. No. 7691)
(5) Automatic review/appeals from Regional Trial Courts in criminal cases,
where the penalty imposed is reclusion perpetua, or life imprisonment, or
where a lesser penalty is imposed but for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise to the
APPELLATE JURISDICTION

more serious offense for which the penalty of reclusion perpetua or life
imprisonment is imposed (Sec. 3[c], Rule 122, as amended by A.M. No. 00-
5-03-SC; People vs. Mateo, G.R. Nos. 147678-87, July 7, 2004)
An appeal may be taken to the CA whether the appeal involves questions of fact,
mixed questions of fact and law, or questions of law, in the following cases:
(1) Appeals from Regional Trial Courts in cases decided by the RTC in the
exercise of its appellate jurisdiction (Sec. 22, Batas Pambansa Blg. 129; Rule
42; Sec. 3[b], Rule 122)
(2) Appeals from decisions of the Regional Trial Courts acting as Special Agrarian
Courts in cases involving just compensation to the landowners concerned
(Land Bank of the Philippines vs. De Leon, G. R. No. 143275, September 10,
Appeal by
2002)
(3) Appeals from awards, judgments, final orders, or resolutions of, or
Certiorari /
authorized by, quasi-judicial agencies in the exercise of their quasi-judicial
Petition for
functions.
Review on
(a) Appeals from Civil Service Commission (CSC).
Certiorari
(b) Appeals from Quasi-Judicial Agencies:
(Rule 45)
• Government Service Insurance System
• Construction Industry Arbitration Commission
• Securities and Exchange Commission
• Department of Agrarian Reform under RA 6657
• Office of the President
• Land Registration Authority
• Social Security Commission
• Civil and Aeronautics Board
• Intellectual Property Office

24
 • National Electrification Administration
• Energy Regulatory Commission
• National Telecommunications Commission
• Employees’ Compensation Commission
• Insurance Commission
• Philippine Atomic Energy Commission
• Board of Investments
• Ombudsman, in administrative disciplinary cases
• National Commission on Indigenous Peoples
• Voluntary Arbitrators authorized by law
(4) Appeals from the Office of the Ombudsman in administrative disciplinary
cases (A.M. No. 99-2-02-SC; Fabian vs. Desierto, G.R. No. 129742,
September 16, 1998)
(5) Judgments and final orders of the CTA en banc are now appealable to the
SC through a petition for review under Rule 45 (R.A. No. 9282)

3. COURT OF TAX APPEALS

(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 17-20;
1987 Constitution; BP Blg. 129; R.A. 7691; R.A. 11576; R.A. 10660; P.D. 1606)
(1) Decisions of the Commissioner of Internal Revenue in cases involving
disputed assessments, refunds of internal revenue taxes, fees or other
charges, penalties in relation thereto, or other matters arising under the
National Internal Revenue or other laws administered by the Bureau of
Internal Revenue;

(2) Inaction by the Commissioner of Internal Revenue in cases involving

disputed assessments, refunds ofinternal revenue taxes, fees or other
charges, penalties in relations thereto, or other matters arising under the
National Internal Revenue Code or other laws administered by the Bureau of
Internal Revenue, where the National Internal Revenue Code provides a
specific period of action, in which case the inaction shall be deemed a denial;
Exclusive
(3) Decisions, orders or resolutions of the Regional Trial Courts in local
appellate
tax cases originally decided or resolved by them in the exercise of their
jurisdiction
original or appellate jurisdiction;

(4) Decisions of the Commissioner of Customs in cases involving liability

for customs duties, fees or other money charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation
thereto, or other matters arising under the Customs Law or other laws
administered by the Bureau of Customs;

(5) Decisions of the Central Board of Assessment Appeals in the exercise

of its appellate jurisdiction over casesinvolvingthe assessment and taxation
of real property originally decided by the provincial or city board of
assessment appeals;

25
 (6) Decisions of the Secretary of Finance on customs cases elevated to him
automatically for review from decisions of the Commissioner of Customs
which are adverse to the Government under Sec. 2315 of the Tariff and
Customs Code;

(7) Decisions of the Secretary of Trade and Industry, in the case of non-
agricultural product, commodity or article, and

(8) Decisions of the Secretary of Agriculture in the case of agricultural

product, commodity or article, involving dumping and countervailing duties
under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and
safeguard measures under Republic Act No. 8800, where either party may
appeal the decision to impose or not to impose said duties.
Exclusive original jurisdiction over all criminal offenses arising from violations of
JURISDICTION OVER CASES INVOLVING CRIMINAL

the National Internal Revenue Code or Tariff and Customs Code and other laws
administered by the Bureau of Internal Revenue or the Bureau of Customs:

Provided, however, That offenses or felonies mentioned in this paragraph where

the principal amount of taxes and fees, exclusive of charges and penalties,
Exclusive claimed is less than One million pesos (P1,000,000.00) or where there is no
original specified amount claimed shall be tried by the regular courts and the jurisdiction
jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and the corresponding civil action
OFFENSES

for the recovery of civil liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly determined in the same proceeding
by the CTA, the filing of the criminal action being deemed to necessarily carry
with it the filingS. of the civil action, and no right to reserve the filling of such
civil action separately from the criminal action will be recognized.
(1) Over appeals from the judgments, resolutions or orders of the Regional Trial
Courts in tax cases originally decided by them, in their respective territorial
jurisdictions.
Exclusive
appellate
(2) Over petitions for review of the judgments, resolutions or orders of the
jurisdiction
Regional Trial Courts in the exercise of their appellate jurisdiction over tax
cases originally decided by the Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in their respective jurisdiction.
Exclusive original jurisdiction over all criminal offenses arising from violations of
the National Internal Revenue Code or Tariff and Customs Code and
JURISDICTION OVER TAX

other laws administered by the Bureau of Internal Revenue or the

COLLECTION CASES

Bureau of Customs:

Provided, however, That offenses or felonies mentioned in this paragraph where

Exclusive
the principal amount of taxes and fees, exclusive of charges and penalties,
original
claimed is less than One million pesos (P1,000,000.00) or where there is no
jurisdiction
specified amount claimed shall be tried by the regular courts and the jurisdiction
of the CTA shall be appellate.

Any provision of law or the Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil liability
for taxes and penalties shall at all times be simultaneously instituted with, and

26
 jointly determined in the same proceeding by the CTA, the filing of the criminal
action being deemed to necessarily carry with it the filingS. of the civil action,
and no right to reserve the filling of such civil action separately from the criminal
action will be recognized.

(1) Over appeals from the judgments, resolutions or orders of the

Regional Trial Courts in tax cases originally decided by them, in their
respective territorial jurisdictions.
Exclusive
appellate
(2) Over petitions for review of the judgments, resolutions or orders of
jurisdiction
the Regional Trial Courts in the exercise of their appellate jurisdiction
over tax cases originally decided by the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in their respective jurisdiction.

27
 4. SANDIGANBAYAN
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 20-23;
as amended by R.A. 10660)
(1) Violations of:
R.A. No. 3019 – Anti-Graft and Corruption Practices Act;
R.A. No. 1379 – Forfeiture of Ill Gotten Wealth Act;
Chapter II, Sec. 2, Title VII of Revised Penal Code – Bribery etc.; and
other offenses committed by public officials and employees in relation to
their office, and private individuals charged as co- principals, accomplices,
and accessories including those employed in government-owned-or-
controlled corporations, where one or more of the accused are officials
occupying the following positions in government, whether in a permanent,
acting, or interim capacity, at the time of the commission of the offense:
(a) Officials of the Executive Branch xxx classified as salary grade "27"
or higher xxx specifically including xxx
(b) Members of Congress xxx
(c) Members of the Judiciary xxx
(d) Members of Constitutional Commissions xxx
(e) All other national and local officials classified as salary grade "27"
and higher under the Compensation and Position Classification Act
of 1989.
ORIGINAL JURISDICTION

In cases where none of the accused is occupying the above positions, the
original jurisdiction shall be vested in the proper Regional Trial Court or
Metropolitan Trial Court, etc., as the case may be, pursuant to their
Original and respective jurisdictions. (Sec. 2, R.A. No. 7975, as amended by R.A. No.
Exclusive 8249)

In cases where there is no specific allegation of facts showing that the

offense was committed in relation to the public office of the accused, the
original jurisdiction shall also be vested in the proper Regional Trial Court
or Metropolitan Trial Court, etc., as the case may be (Lacson vs. Executive
Secretary, G.R. No. 128096, January 20, 1999).

(2) Civil and criminal cases filed pursuant to and in connection with Executive
Order Nos. 1, 2, 14, and 14-A:
(a) E.O. No. 1 – Creating the PCGG;
(b) E.O. No. 2 – Illegal Acquisition and Misappropriations of Ferdinand
Marcos, Imelda Marcos their close relatives, subordinates, business
associates, dummies, agents or nominees;
(c) E.O. No. 14 – Cases involving the ill-gotten wealth of Ferdinand
Marcos, Imelda Marcos their close relatives, subordinates, business
associates, dummies, agents or nominees; and
(d) E.O. No. 14A – Amendments to E.O. No. 14 (Sec. 2, R.A. No. 7975 as
amended by R.A. No. 8249, R.A. No. 10660).

(3) Violations of R.A. No. 9160, or "Anti-Money Laundering Act of 2001," as

amended by R.A. No. 9194, when committed by public officers and private
persons who are in conspiracy with such public officers.

28
 Petitions for issuance of writs ofcertiorari, prohibition, mandamus, habeas
With corpus, and injunction and other ancillary writs in aid ofits appellate jurisdiction,
Original and Concurrent

the SC including quo warrant° arising in cases falling under said Executive Order Nos.
1, 2, 14, and 14-A (Ibid., as amended by R.A. No. 8249).
(1) Petitions for writ of amparo and writ of habeas data when action concerns
public data files of government offices (Sec. 3, A.M. No. 07-9-12-SC or "The
Rule on the Writ of Arnparo," effective October 24, 2007; Sec. 3, A.M. No.
With 08-1-16-SC, effective February 2, 2008)
the SC,
CA and (2) Petitions for certiorari, prohibition, and mandamus, relating to an act or
RTC omission of a Municipal Trial Court, corporation, board, officer, or person
(Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC dated December 12,
2007)
Decisions and final orders of Regional Trial Courts in the exercise of their original
APPELLATE or appellate jurisdiction under Presidential Decree No. 1606, as amended, shall
JURISDICTION be appealable to the Sancliganbayan in the manner provided by Rule 122 of the
Rules of Court (Sec. 5, Republic Act No. 8249)
Petitioner, a member of the University of the Philippine Board of Regents, claims
that she is not a public officer with Salary Grade 27; she is, in fact, a regular
tuition fee-paying student. This is bereft of merit. It is not only the salary grade
that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also
has jurisdiction over other officers enumerated in Presidential Decree No. 1606.
While the first part of Section 4(A) covers only officials with Salary Grade 27 and
higher, its second part specifically includes other executive officials whose
positions may not be of Salary Grade 27 and higher but who are by express
NOTE:
provision of law placed under the jurisdiction of the said court. Petitioner falls
under the jurisdiction of the Sandiganbayan as she is placed there by express
Public officers
provision of law.
under the
Sandiganbayan
Section 4(A)(1)(g) of Presidential Decree No. 1606 explicitly vested the
law
Sandiganbayan with jurisdiction over Presidents, directors or trustees, or
managers of government-owned or controlled corporations, state universities or
educational institutions or foundations. Petitioner falls under this category. As
the Sandiganbayan pointed out, the Board of Regents performs functions similar
to those of a board of trustees of a non-stock corporation. By express mandate
of law, petitioner is, indeed, a public officer as contemplated by Presidential
Decree No. 1606 (Serana vs. Sandiganbayan, G.R. No. 162059, January 22,
2008).
The Court has held that an offense is deemed to be committed in relation to the
public office of the accused when that office is an element of the crime charged.
However, even if public office is not an element of the offense, the jurisdiction
NOTE: of the Sandiganbayan obtains when the relation between the crime and the
office is direct and not accidental such that, in the legal sense, the offense
Exercise of cannot exist without the office.
Primary
Jurisdiction Indirect Bribery; View that when it became apparent that the case involved any
of the crimes and offenses specified in Annex A of the Memorandum of
Agreement (MOA), which includes indirect bribery, it DOJ and the Office of the
Ombudsman dated March 29, 2012 (MOA) which recognizes the primary

29
jurisdiction of the Ombudsman in the conduct of preliminary investigation the
Department of Justice (DOJ) to already inform the complainant to file the
complaint directly with the Ombudsman. - Since the only possible offense that
may be leveled against Petitioner, based on the acts alleged in the Information,
is indirect bribery, which is exclusively cognizable by the Sandiganbayan, then
the DOJ Panel of Prosecutors violated the Memorandum of Agreement between
theand inquest proceedings for crimes and offenses over which the
Sandiganbayan has exclusive jurisdiction. Thus, when it became apparent that
the case involved any of the crimes and offenses specified in Annex A of the
MOA, which includes indirect bribery, it behooved the DOJ to already inform the
complainant to file the complaint directly with the Ombudsman. (De Lima v.
Guerrero, G.R. No. 229781 , October 10, 2017)

30
 5. REGIONAL TRIAL COURT
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 23-29;
1987 Constitution; BP Blg. 129; R.A. 7691; R.A. 11576; R.A. 10660; P.D. 1606)

N.B. RA 11576 increased jurisdictional threshold to 2M and 400k (real actions) as of June 30, 2021
CIVIL
(1) Subject of the action not capable of pecuniary estimation;

Actions not capable of pecuniary estimation:

(a) Where it is primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation — jurisdiction, whether in
the MTC or RTC, would depend on the amount of the claim.
(b) Where main purpose of filing the complaint is to collect the
commission for finding a buyer of subject properties, payment of such
money claim is the principal relief sought. Thus it is capable of
pecuniary estimation (Cabrera vs. Francisco, G.R. No. 172293, August
28, 2013).
(c) Where the basic issue is other than the right to recover a sum of
money, or where the money claim is purely incidental to, or a
consequence of the principal relief sought, the subject of litigation may
not be estimated in terms of money — jurisdiction exclusively of RTC.
ORIGINAL JURISDICTION

• expropriation
• specific performance
• support
• foreclosure of mortgage
Original and
• annulment of judgment
Exclusive
• actions questioning the validity of a mortgage
• annulment of deed of conveyance rescission
(d) While actions under Sec. 33[3] of Bata Pambansa Big. 129 are also
incapable of pecuniary estimation, the law specifically mandates that
they are cognizable by the MTC, METC, or MCTC where the assessed
value of the real property involved does not exceed P400,000.00 in
Metro Manila, or P50,000.00, if located elsewhere (Russel us. Vestil,
G.R. No. 119347, March 17, 1999; amount as amended by R.A.
11576).
Note: 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. v. Philippine Bank
of Communications, G.R. No. 202836, June 19, 2018) Justice Feria in his book
qualifies that in saying that you look into the conjunction, if the conjunction is
“OR” it becomes capable if the conjunction is “AND” it is incapable.

31
 (2) Actions involving title to, or possession of real property or any interest
therein — where assessed value of property exceeds P400,000.00

(3) Actions in admiralty and maritime jurisdiction — where demand or claim

exceeds P2,000,000.00

(4) Matters of probate, testate and intestate — where gross value of estate
exceeds P2,000,000.00

(5) Cases not within exclusive juris- diction of any court, tribunal, person or
body exercising judicial or quasi- judicial functions.

(6) All other cases where demand — exclusive of interests, damages of

whatever kind, attorney's fees, litigations expenses and cost, or value of
property in controversy — exceeds exceeds P2,000,000.00

(7) Additional original jurisdiction transferred under Sec. 5.2. of the Securities
Regulation Code, all cases enumerated under Section 5 of Presidential
ORIGINAL JURISDICTION

Decree No. 902-A.

(a) Devices or schemes employed by or any acts, of the board of directors,
business associates, its officers or partners, amounting to fraud and
misrepresentation which may be detrimental to the interest of the
Original and public and/or of the stockholder, partners, members of associations or
Exclusive organizations registered with the Commission;
(b) Controversies arising out of intra-corporate or partnership relations,
between and among stockholders, members, or associates; between
any or all of them and the corporation, partnership or association of
which they are stockholders, members or associates, respectively; and
between such corporation, partnership or association and the state
insofar as it concerns their individual franchise or right to exist as such
entity;
(c) Controversies in the election or appointments of directors, trustees,
officers or managers of such corporations, partnerships or
associations.
(d) Petitions of corporations, partnerships or associations to be declared
in the state of suspension of payments in cases where the corporation,
partnership or association possesses sufficient property to cover all its
debts but foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation, partnership or
association has no sufficient assets to cover its liabilities, but is under
the management of a Rehabilitation Receiver or Management
Committee created pursuant to this Decree. (Sec. 5.2., R.A. 8799, The
Securities Regulation Code and Sec. 5, P.D. No. 902-A)

(8) Application for issuance of writ of search and seizure in civil actions for
infringement of intellectual property rights (Sec. 3, A.M. No. 02-1-06-SC,
effective February 15, 2002)

32
 (9) Violations of Republic Act No. 9160 or "Anti-Money Laundering Act of
2001," as amended by Republic Act No. 9194.
Actions affecting ambassadors, other public ministers and consuls (B.P. 129,
Sec. 21[2]; Sec. 5[1], Art. VIII, 1987 Constitution)
With the
SC Note: For officials of the diplomatic service occupying the position of consul and
higher the Sandiganbayan has jurisdiction in criminal cases involving (Sec. 6,
Art. VIII, 1987 Constitution; R.A. No. 10660)
(1) Petitions for habeas corpus (B.P. 129; Sec. 5[1], Art. VIII, 1987
Constitution)
(2) Petitions for quo warranto (ibid.)
With the
(3) Petitions for the issuance of writ of continuing mandamus in environmental
SC and
cases. (Sec. 1, Rule 8, A.M. No. 09-6-8-SC)
CA
Original and Concurrent

(4) Actions brought to prevent and restrain violations of laws concerning

monopolies and combinations in restraint of trade (Sec. 17, R.A. No. 296 as
amended by R.A. No. 5440)
(1) Petition for writ of amparo (Sec. 3, A.M. No. 07-9-12-SC);
With the (2) Petition for writ of habeas data (Sec. 3, A.M. No. 08-1-16-SC);
SC, CA (3) Petitions for certiorari, prohibition, and mandamus relating to an act or
and SB omission of a municipal trial court, or of a corporation, a board, an officer
or person (1987 Constitution)
With Application for Protection Order under Sec. 10, Republic Act No. 9282, unless
MeTC, there is a Family Court in the residence of petitioner.
MTC,
MTCC
and
MCTC
with Claims not exceeding P100,000.00 (Sec. 416, Insurance Code, Presidential
Insura- Decree No. 612).
nce
Commis- Applicable if subject of the action is not capable of pecuniary estimation;
sion otherwise, jurisdiction is concurrent with Metropolitan Trial Court, etc.
CRIMINAL
Criminal cases not within the exclusive jurisdiction of any court, tribunal, or body.
(Sec. 20, B.P. Blg. 129). These includes:
(1) criminal cases where the penalty provided by law exceeds six years
imprisonment irrespective of the fine (R.A. 7691).
Original and (2) criminal cases not falling within the exclusive original jurisdiction of the
Exclusive Sandiganbayan, where none of the accused are occupying positions
corresponding to salary grade "27" and higher (R.A. 7975 and R.A. No.
8249).
(3) In cases where the only penalty provided by law is a fine, if the amount of
the fine exceeds P4,000 (R.A. 7691 as clarified by Administrative Circular
No. 09-94 dated June 14, 1994).

33
 (4) Violations of special laws:
(a) Comprehensive Dangerous Drugs Act of 2002.
(b) Anti-Violence against Women and their Children Act of 2004
(specifically, those involving violence against women and children as
defined under Section 5).
(c) Comprehensive Agrarian Reform Law.
(d) Omnibus Election Code.

Note: Family Courts have exclusive original jurisdiction over 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: Provided, That if the minor
is found guilty, the court shall promulgate sentence and ascertain any civil
liability which the respondent may have incurred . (People v. Dela Torre-Yadao,
G.R. No. 162144-54, November 13, 2012)
APPELLATE All cases decided by the MeTC, MTC, MTCC and MCTC in their respective
JURISDICTION territorial Jurisdiction. (Sec. 22, B.P. 129).
The levy of the respondent's property was made pursuant to the RTC orders
issued in the exercise of its equity jurisdiction, independent of the ejectment
case originally filed with the MTC.
An examination of the RTC order dated June 30, 2008, directing the levy of the
respondent's real property shows that it was based on the RTC order dated July
25, 2003. The levy of the respondent's property was issued to satisfy the
amounts due under the lease contracts, and not as a result of the decision in
the ejectment case
The CA erred when it concluded that the RTC exercised its appellate jurisdiction
NOTES: in the ejectment case when it directed the levy of the respondent's property.
Furthermore, the order to levy on the respondent's real property was consistent
RTC’s Equity with the first writ of execution issued by the RTC on December 18, 2003, to
Jurisdiction implement the RTC orders. The writ of execution states that: "xxx In case of
[sic] sufficient personal property of the defendant cannot be found whereof to
satisfy the amount of the said judgment, you are directed to levy [on] the real
property of said defendant and to sell the same or so much thereof in the manner
provided by law for the satisfaction of the said judgment and to make return of
your proceedings together with this Writ within sixty (60) days from receipt
hereof."
The subsequent order of the RTC to levy on the respondent's property was
merely a reiteration and an enforcement of the original writ of execution issued
(Regulus Development, Inc. vs. Dela Cruz, G.R. No. 198172, January 25,2016).
The SC may designate certain branches of the RTC to handle exclusively criminal
cases, juvenile and domestic relations cases, agrarian cases, urban land reform
RTC’s Special
cases which do not fall under the jurisdiction of quasi-judicial bodies and
Jurisdiction
agencies, and/or such other special cases as the SC may determine in the
interest of a speedy and efficient administration of justice. (Sec. 23, B.P. 129).
SC-AO No. 113-95: Re: Designation of Special Courts for Intellectual Property
Intellectual
Rights (October 02, 1995)
Property Courts

34
In the interest of an efficient administration of justice and to ensure speedy
disposition of cases involving violation of Intellectual Property Rights, the
following Branches of the RTC, Metropolitan Trial Courts and Municipal Trial
Courts in Cities, presently presided over by their respective trial judges as herein
below indicated, are hereby specially designated to try and decide cases for
violations of Intellectual Property Rights such as, but riot limited to, violations of
Art. 188 of the Revised Penal Code (Substituting and Altering Trademarks, Trade
Names, or Service Marks), Art. 189 of the Revised Penal Code (Unfair
Competition, Fraudulent Registration of Trade Name, Trademark or Service
Mark, Fraudulent Designation of Origin, and False Description), Presidential
Degree No. 49 (Protection of Intellectual Property Rights), Presidential Degree
No. 87 (An Act Creating-the Videogram Regulatory Board), Republic Act No. 165
"as amended (The Patent Law), and Republic Act 166 as amended' (The
Trademark Law) committed within their respective territorial areas

RA 8293: Intellectual Property Code of the Philippines


All actions under Sections 150, 155, 164, and 166 to 169 shall be brought before
the proper courts with appropriate jurisdiction under existing laws.
• Sec. 150 - License Contracts 

• Sec. 155 - Remedies for Infringement of registered mark
• Sec. 164 - Notice of Filing Suit Given to the Director 

• Sec. 166 - Goods Bearing Infringing Marks or Trade Names
• Sec. 167 - Collective Marks 

• Sec. 168 - Unfair Competition, Rights, Regulation and Remedies 

• Sec. 169 - False Designations of Origin; False Description or
Representation.

AM No. 10-3-10-SC: 2020 Revised Rules of Procedure for Intellectual Property

Rights Cases (Effectivity date: Nov. 16, 2020): These Rules shall:
(a) be observed by the RTC designated by the Supreme Court as Special
Commercial Courts. (Sec. 2, Rule 1)
(b) Apply to all cases involving Intellectual Property Rights. When the court
determines that the civil or criminal action involved several intertwined
issues, it shall issue a special order that the regular procedure prescribed
in the Rules of Court shall apply, stating the reason therefor. 
Where
applicable, the Rules of Court shall apply suppletorily to proceedings under
these Rules. (Sec. 3, Rule 1)
(c) Rules 2 to 9 shall apply to all civil actions for violations of intellectual
property rights provided for in R.A. No. 8293 or the Intellectual Property
Code, as amended, including:
• Repetition of Infringement of Patent (Sec. 84),
• Utility Model (Sec. 108) and Industrial Design and Layout of Integrated
Circuits (Sec. 119),
• Trademark Infringement (Sec. 155 in relation to Sec. 170),
• Unfair Competition (Section 168 in relation to Section 170),
• False Designations of Origin; False Description or Representation (Sec.
169.1 in relation to Sec. 170), infringement of copyright, moral rights,
performers' rights, producers' rights, and broadcasting rights (Sec. 177,
193, 203, 208 and 211 in relation to Sec. 216),

35
 • Infringement of Plant Variety Protection under Republic Act No. 9168 or
the Plant Variety Protection Act Sec. 47), and
• other violations of intellectual property rights as may be defined by law.
Special The following guidelines shall be observed:
Commercial (1) If a commercial case filed before the proper RTC is wrongly raffled to its
Courts regular branch, the proper courses of action are as follows:
(a) If the RTC has only one branch designated as a Special Commercial
Court, then the case shall be referred to the Executive Judge for re-
docketing as a commercial case, and thereafter, assigned to the sole
special branch;
(b) If the RTC has multiple branches designated as Special Commercial
Courts, then the case shall be referred to the Executive Judge for re-
docketing as a commercial case, and thereafter, raffled off among
those special branches; and
(c) If the RTC has no internal branch designated as a Special Commercial
Court, then the case shall be referred to the nearest RTC with a
designated Special Commercial Court branch within the judicial region.
Upon referral, the RTC to which the case was referred to should re-
docket the case as a commercial case, and then: (a) if the said RTC
has only one branch designated as a Special Commercial Court, assign
the case to the sole special branch; or (b) if the said RTC has multiple
branches designated as Special Commercial Courts, raffle off the case
among those special branches.
(2) If an ordinary civil case filed before the proper RTC is wrongly raffled to its
branch designated as a Special Commercial Court, then the case shall be
referred to the Executive Judge for re-docketing as an ordinary civil case.
Thereafter, it shall be raffled off to all courts of the same RTC (including
its designated special branches which, by statute, are equally capable of
exercising general jurisdiction same as regular branches), as provided for
under existing rules.
(3) All transfer/raffle of cases is subject to the payment of the appropriate
docket fees in case of any difference. On the other hand, all docket fees
already paid shall be duly credited, and any excess, refunded.
(4) Finally, to avert any future confusion, the Court requires that all initiatory
pleadings state the action's nature both in its caption and body. Otherwise,
the initiatory pleading may, upon motion or by order of the court motu
proprio, be dismissed without prejudice to its re-filing after due
rectification. This last procedural rule is prospective in application.
(Gonzales v. GJH Land, Inc., G.R. No. 202664, November 10, 2015)
Special Agrarian In Republic v. CA [G.R. No. 122256, October 30, 1996], the Court explained:
Courts
Thus, Special Agrarian Courts, which are Regional Trial Courts, are given original
and exclusive jurisdiction over two categories of cases, to wit:
(1) "all petitions for the determination of just compensation to landowners"
and
(2) "the prosecution of all criminal offenses under R.A. No. 6657."

36
 The provisions of Sec. 50 must be construed in harmony with this provision by
considering cases involving the determination of just compensation and criminal
cases for violations of R.A. No. 6657 as excepted from the plenitude of power
conferred on the DAR. Indeed, there is a reason for this distinction. The DAR is
an administrative agency which cannot be granted jurisdiction over cases of
eminent domain for such are takings under R.A. No. 6657 and over criminal
cases. Thus, in EPZA v. Dulay and Sumulong v. Guerrero — we held that the
valuation of property in eminent domain is essentially a judicial function which
cannot be vested in administrative agencies, while in Scoty's Department Store
v. Micaller, we struck down a law granting the then Court of Industrial Relations
jurisdiction to try criminal cases for violations of the Industrial Peace Act. LibLex
In a number of cases, the Court has upheld the original and exclusive jurisdiction
of the RTC, sitting as SAC, over all petitions for determination of just
compensation to landowners in accordance with Section 57 of RA No. 6657.
(Land Bank of the Phils. v. Honeycomb Farms Corp., G.R. No. 166259, November
12, 2012)

6. FAMILY COURTS
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 29-31)

37
 (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, when one or more of
the victims is a minor at the time of the commission of the offense:
Provided, That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the accused may have
incurred. The sentence, however, shall be suspended without need of
application pursuant to Presidential Decree No. 1903, otherwise known as
"The Child and Youth Welfare Code"; (R.A. No. 8369 [Family Courts Act of
1997])
(2) Petitions for guardianship, custody of children, habeas corpus in relation to
the latter; (Sec. 3, A.M. No. 03-04-04-SC; Sec. 3, A.M. No. 03-02-05-SC)
(3) Petitions for adoption of children and the revocation thereof; (Secs. A.20
and B.28, A.M. No. 02-6-02-SC; R.A. No. 9523 or "An Act Requiring
Certification of the Department of Social Welfare and Development to
Declare A Child 'Legally Available for Adoption' as a Prerequisite for
Adoption Proceedings, Amending for this Purpose Certain Provisions of R.A.
No. 8552, otherwise known as The Domestic Adoption Act of 1998, R.A.
No. 8043, otherwise known as The Inter-Country Adoption Act of 1995,
Presidential Decree No. 603, otherwise known as The Child and Youth
Welfare Code, and for Other Purposes," approved on March 12, 2009)

Original and (4) Complaints for annulment of marriage, declaration of nullity of marriage,
Exclusive and those relatingto maritalstatus and propertyrelations of husband and
wife or those living together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains; (Sec. 2, A.M. No.
02-11-10-SC)
(5) Petitions for involuntary commitment ofa child, for removal of custody
against child-placement or child-caring agency or individual, and for
commitment of disabled child; (Secs. 4[b], 5[a][ii], 6[b], A.M. No. 02-1-19-
SC)
(6) Cases against minors cognizable under R.A. No. 9165, or "The
Comprehensive Dangerous Drugs Act of 2002"; (A.M. No. 07-8-2-SC)
(7) Violation of R.A. No. 7610, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploration and Discrimination Act," as
amended by R.A. No. 7658 and as further amended by R.A. No. 9231;
(8) R.A. No. 9775 (Anti-Child Pornography Act of 2009);
(9) Cases of violence against women and their children under R.A. No. 9262,
otherwise known as "Anti-Violence Against Women and their Children Act
of 2004," including applications for Protection Order under the same Act;
(10) Criminal cases involving juveniles if no preliminary investigation is required
under Sec. 1, Rule 112 of Revised Rules on Criminal Procedure (Sec. 1,
A.M. No. 02-1-18-SC)

38
 7. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, AND MUNICIPAL CIRCUIT TRIAL COURTS
(REPUBLIC ACT NO. (RA) 11576, AN ACT FURTHER EXPANDING THE
JURISDICTION OF FIRST-LEVEL COURTS)
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 31-33;
1987 Constitution; BP Blg. 129; R.A. 7691; R.A. 11576)

(1) Actions involving personal property valued not more than P2,000,000.00

(2) All other cases where demand for money does not exceeds P2,000,000.00

(3) Actions in admiralty and maritime jurisdiction — where demand or claim

does not exceed P2,000,000.00

(4) Matters of probate, testate and intestate — where gross value of estate
does not exceeds P2,000,000.00

Note: exclusive of interest, damages of whatever kind, attorney’s fees, litigation

expenses, and costs, the amount of which must be specifically alleged: However
it shall be included in the determination of the filing fees.

(5) Actions involving title to, or possession of real property or any interest
therein — where assessed value of property does not exceeds P400,000.00,
exclusive ofinterest, damages of whatever kind, attorney fees, litigation
expenses and costs: Provided, that in cases of land not declared for
Original and taxation purposes, the value of such property shall be determined by the
Exclusive assessed value of the adjacent lots.
CIVIL

(6) Forcible entry and unlawful detainer, with jurisdiction to resolve issue of
ownership to determine issue of possession; (Sec. 33, B.P. Blg. 129 as
amended by R.A. 11576)

(7) Provisional remedies in principal actions within their jurisdiction, and in

proper cases, such as preliminary attachment, preliminary injunction,
appointment of receiver and delivery of personal property (Rules 57, 58,
59, and 60);

(8) Inclusion and exclusion of voters (Sec. 38, B.P. Blg. 881, Omnibus Election
Code of the Philippines).

(9) Cases falling under the 2016 Revised Rules of Procedure for Small Claims
Cases, where the claim does not exceed PHP 1,000,000.00, exclusive of
interest and costs.

(10) Cases-falling under the 1991 Revised Rules on Summary Procedure

Cadastral and land registration cases assigned by Supreme Court where there is
Delegated no controversy or opposition and in contested lots valued at more than P100,000
(Sec. 34, B.P. Blg. 129 as amended by R.A. No. 7691).
Petition for habeas corpus in the absence of all Regional Trial Court judges (Sec.
Special
35, B.P. Blg. 129).

39
 (1) All violations of city or municipal ordinances committed within their
respective territorial jurisdictions;
(2) All offenses punishable with im- prisonment of not more than six (6) years
irrespective of the fine and regardless of other imposable acces- sory or
other penalties and the eivil liability arising therefrom; provided, however,
that in offenses involving damage to property through crimi- nal
negligence, they shall have ex- clusive original jurisdiction (Sec. 32, B.P.
Original and
CRIMINAL

Blg. 129 as amended by R.A. No. 7691).

Exclusive
(3) All offenses committed not falling within the exclusive original jurisdiction
of the Sandiganbayan where none of the accused is occupying a position
corresponding to salary grade "27' and higher (As amended by R.A. No.
7975 and R.A. No. 8249).
In cases where the only penalty provided by law is a fine not exceeding P4,000,
the Metropolitan Trial Courts, etc. have jurisdiction (Administrative Circular No.
09-94, dated June 14, 1994).
Special Applications for bail in the absence of all Regional Trial Court judges (Sec. 35,
Batas Pambansa Blg. 129).

D. ASPECTS OF JURISDICTION Exception Jurisdictional Estoppel

to the
1. JURISDICTION OVER THE SUBJECT exception Lack of jurisdiction over the
MATTER subject matter can always be
raised anytime, even for the first
General Jurisdiction over the subject time on appeal, since
Rule matter is conferred by law. jurisdictional issues cannot be
waived . . . subject, however, to
It is also determined by the the principle of estoppel by
averments in the complaint and laches." Since the defense of lack
the nature of the reliefs being of jurisdiction over the person of
sought. (Del Monte Land a party to a case is not one of
Transport Bus, Co. v. Armenta, those defenses which are not
G.R. No. 240144, February 3, deemed waived under Sec. 1 of
2021, J. Hernando) Rule 9, such defense must be
Exception Jurisdiction of the SC is conferred invoked when an answer or a
by the Constitution motion to dismiss is filed in order
Traditional – Non-traditional to prevent a waiver of the
as provided – otherwise defense. If the objection is not
for in Sec. 5 known as raised either in a motion to
Article VIII of expanded/ dismiss or in the answer, the
the extended objection to the jurisdiction over
Constitution jurisdiction the person of the plaintiff or the
under Sec. 1 Art. defendant is deemed waived by
VIII of the virtue of the first sentence of the
Constitution. above-quoted Sec. 1 of Rule 9 of
the Rules of Court. (Boston
Equity Resources, Inc. v. Court of

40
 Appeals, G.R. No. 173946, June
19, 2013)
It must be emphasized that jurisdiction over the
subject matter or authority to try a certain case is
conferred by law and not by the whims, consent
or acquiescence of the interested parties nor
by the erroneous belief of the court or tribunal
that it exists. It should be exercised precisely
by the person in authority or body in whose
hands it has been placed by the law; otherwise,
acts of the court or tribunal shall be void and with
no legal consequence. As reiterated by the Court
in Bilag v. Ay-ay: "Jurisdiction is defined
as the power and authority of a court to hear, try,
and decide a case. In order for the court or an
adjudicative body to have authority to dispose
of the case on the merits, it must acquire, among
others, jurisdiction over the subject matter. It is
axiomatic that jurisdiction over the subject
matter is the power to hear and determine
the general class to which the proceedings in
question belong; it is conferred by law and not
by the consent or acquiescence of any or all
of the parties or by erroneous belief of thecourt
that it exists. Thus, when a court has
no jurisdiction over the subject matter, the only
power it has is to dismiss the action." Perforce, it
is important that a court or tribunal should first
determine whether or not it has jurisdiction
over the subject matter presented before it,
considering that any act that it performs
without jurisdiction shall be null and void, and
without any binding legal effects. (Del Monte
Land Transport Bus, Co. v. Armenta, G.R. No.
240144, February 3, 2021, J. Hernando)
Jurisdiction over the subject matter cannot be
acquired through a waiver or enlarged by the
omission of the parties or conferred by the
acquiescence of the court." (Dy Buncio v. Ramos,
G.R. No. 206120, March 23, 2022 J. Hernando)
When a court lose jurisdiction over the
subject matter
It is only after expiration of the period to appeal,
before that, it has still jurisdiction. (Sec. 9, Rule
41)
2. JURISDICTION OVER THE PARTIES
Jurisdiction over the parties refers to the power
of the court to make decisions that are binding on
persons (De Pedro v. Romasan Development
Corporation, G.R. No. 194751, November 26,
2014)
It is basic that a court must acquire
jurisdiction over a party for the latter to be
bound by its decision or orders. Valid service
of summons, by whatever mode authorized by
and proper under the Rules, is the means by
which a court acquires jurisdiction over a person.
(Garcia v. Sandiganbayan, G.R. Nos. 170122 &
171381, October 12, 2009)
Jurisdictional Estoppel applies only to
issues involving lack of jurisdiction over the
subject matter
The principle of estoppel by laches applies only
when the issue is the court’s lack of jurisdiction
over the subject matter of the case. It finds no
application whatsoever if the issue is the court’s
lack of jurisdiction over the person of the
defendant.
In various cases, the Supreme Court barred the
attack on the jurisdiction of the respective courts
concerned over the subject matter of the case
based on estoppel by laches, declaring that
parties cannot be allowed to belatedly adopt an
inconsistent posture by attacking the jurisdiction
of a court to which they submitted their cause
voluntarily.
Here, what respondent was questioning in her
motion to dismiss before the trial court was that
court's jurisdiction over the person of defendant
Manuel. Thus, the principle of estoppel by laches
finds no application in this case. Instead, the
principles relating to jurisdiction over the person
of the parties are pertinent in the case.
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
Sec. 1 of Rule 9, such defense must be invoked
41
when an answer or a motion to dismiss is filed in
order to prevent a waiver of the defense. If the
objection is not raised either in a motion to
dismiss or in the answer, the objection to the
jurisdiction over the person of the plaintiff or the
defendant is deemed waived. (Boston Equity
Resources, Inc. v. Court of Appeals, G.R. No.
173946, June 19, 2013)
Civil cases Plaintiff - The court acquires
jurisdiction over the person of
the plaintiff upon filing of the
complaint/petition and timely
payment of the correct docket
fees
Defendant - The court acquires
jurisdiction over the person of
the defendant, co-defendant
and 3rd/4th/5th party
defendant upon valid service of
summons or voluntary
appearance (Rule 14)
Intervenor - The court acquires
jurisdiction over the person of
the intervenor upon approval of
the motion for leave to
intervene.
Criminal It does not have to acquire
cases jurisdiction over the plaintiff
because it is the same party the
People of the Philippines.
Generally no docket fees are
required in criminal however if
a claim for damages has been
instituted with criminal case
then a docket fee is required for
the claim for damages.
The court acquires jurisdiction
over the person of the accused
upon lawful arrest or voluntary
surrender. (Rule 113)
Special The court acquires jurisdiction
proceeding over the case and over the
cases petitioner upon publication.
The requirement of special
services in a special proceeding
is not generally jurisdictional,
as a general rule, they are only
in compliance with the due
process clause of the
Constitution.
Jurisdiction Over the Plaintiff
Jurisdiction over the plaintiff is acquired as soon
as he files his complaint or petition (De Pedro v.
Romasan Development Corporation, G.R. No.
194751, November 26, 2014; Heirs of Josefina
Gabriel v. Cebrero, G.R. No. 222737, November
12, 2018) because by the mere filing of the
complaint, the plaintiff, in a civil action,
voluntarily submits himself to the jurisdiction of
the court (Guy v. Gacott, supra; See also Onstott
v. Upper Tagpos Neighborhood Association, Inc.,
G.R. No. 221047, September 14, 2016; Riano,
Civil Procedure (The Bar Lecture Series), Vol. I,
2022 Edition, p. 84).
Important: This presupposes timely payment
of the correct amount of docket fees since
the failure to pay docket fees is jurisdictional. The
court does not obtain jurisdiction in the absence
of the requisite docket fees.
Payment of docket fees is jurisdictional
Payment in full of docket fees within the
prescribed period is not only mandatory, but also
jurisdictional. It is an essential requirement,
without which, the decision appealed from would
become final and executory as if no appeal has
been filed (St. Louis University vs. Cobarrubias,
G.R. No. 187104, August 03, 2010).
However, while the court acquires jurisdiction
over any case only upon the payment of the
prescribed docket fees, its non-payment at the
time of the filing of the complaint does not
automatically cause the dismissal of the
complaint provided that the fees are paid within
a reasonable period (Unicapital, Inc. vs. Consing,
42
Jr., G.R. Nos. 175277 & 175285, September 11, court does not acquire jurisdiction
2013). over such issue.

In In criminal cases, upon

Jurisdicion over the person of the
criminal arraignment (Rule 116) – based on
defendant
cases the Constitution it is mandatory to
inform the accused of the nature
Jurisdiction over the person of the defendant in and cause of the accusation
civil cases is acquired by service of summons. against him.
However, "even without valid service of
summons, a court may still acquire jurisdiction ARTICLE III
over the person of the defendant if the latter Bill of Rights
voluntarily appears before it." "If the defendant SECTION 1. No person shall be
knowingly does an act inconsistent with the right deprived of life, liberty, or property
to object to the lack of personal jurisdiction as to without due process of law, nor
them, like voluntarily appearing in the action, shall any person be denied the
they are deemed to have submitted themselves equal protection of the laws.
to the jurisdiction of the court.” (Jorgenetics
Swine Improvement Corp. v. Thick & Thin Agri-
Products, Inc., G.R. Nos. 201044 & 222691, May SECTION 14.
5, 2021, J. Hernando) (1) No person shall be held to
answer for a criminal offense
Jurisdiction over the person of the defendant without due process of law.
cannot be acquired notwithstanding his (2) In all criminal prosecutions,
knowledge of the pendency of a case against the accused shall be presumed
him, unless he was validly served with summons. innocent until the contrary is
Thus, serving the order and TPO to Atty. Palmero proved, and shall enjoy the
cannot be considered a valid service of summons. right to be heard by himself
(Sabado v. Sabado, G.R. No. 214270, [May 12, and counsel, to be informed of
2021, J. Hernando) the nature and cause of the
accusation against him, to
have a speedy, impartial, and
Note:
public trial, to meet the
Filing of a motion for reconsideration and appeal witnesses face to face, and to
is tantamount to voluntary submission to the have compulsory process to
jurisdiction of the court. Any mode of appearance secure the attendance of
in court by a defendant or his lawyer is equivalent witnesses and the production
to service of summons, absent any indication that of evidence in his behalf.
the appearance of counsel was precisely to However, after arraignment,
protest the jurisdiction of the court over the trial may proceed
person of defendant (Delos Santos vs. Montesa, notwithstanding the absence
G.R. No. 73531. April 6, 1993). of the accused provided that
he has been duly notified and
3. JURISDICTION OVER THE ISSUES his failure to appear is
unjustifiable.
In civil In civil cases, jurisdiction over
cases the issues is determined by the If it is determined in the allegations
allegations in the pleading. So, if in the pleadings you corelate that
not alleged in the pleadings, the with arraignment because
arraignment is not only for the

43
 purpose of complying with the
Constitutional provision that the
accused must be inform of the
nature and cause of the accusation
against him but he must also be
informed in such a way that the
court will likewise acquire
jurisdiction over such issue. So
arraignment is not only for the
purpose of informing the accused
of the nature and cause of the
accusation against him, it will also
include, a mean by which the
court, acquires jurisdiction over the
issues of the case.
Remember that under your rules of
evidence, even if there is evidence
but there was no allegations, the
evidence is inadmissible, because
evidence is only supportive of the
allegations.
In jurisdiction over the issue, the issue being tried
and decided by the court must be within the
issues raised in the pleadings. (Bernabe v.
Vergara, G.R. No. L-48652, September 16, 1942)
Jurisdiction over the issue, unlike jurisdiction over
the subject-matter, may be conferred by consent
either express or implied of the parties. (Rule 17,
sec. 4, Rules of Court.) Although an issue is not
duly pleaded it may validly be tried and decided
if no timely objection is made thereto by the
parties. In truth, jurisdiction over the issue is an
expression of a principle that is involved in
jurisdiction over the persons of the parties.
Where, for instance, an issue is not duly pleaded
in the complaint, the defendant cannot be said to
have been served with process as to that issue.
At any rate, whether or not the court has
jurisdiction over a specific issue is a question that
requires nothing except an examination of the
pleadings, and this function is without such
importance as to call for the intervention of this
court. (ibid.)
Jurisdiction of a court over the criminal case is
determined by the allegations in the complaint or
information. (Radaza v. Sandiganbayan, G.R. No.
201380, August 4, 2021, J. Hernando)
4. JURISDICTION OVER THE RES OR THE
PROPERTY IN LITIGATION
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 the action is one in
personam, jurisdiction over the res is not
sufficient to authorize the court to render a
judgment against the defendant. In an action in
personam, jurisdiction over the person of the
defendant is required. (Riano, Civil Procedure
(The Bar Lecture Series), Vol. I, 2022 Edition, p.
93).
Jurisdiction over the res is acquired either:
(a) by the seizure of the property under legal
process, whereby it is brought into actual
custody of the law, or
(b) as a result of the institution of legal
proceedings, in which the power of the court
is recognized and made effective.
In order for the court to continue the proceeding
it has to acquire jurisdiction over the res in the
absence of the jurisdiction over the person of the
defendant in action strictly in personam.
There are two sets of classification of actions:
real action personal action
the subject matter is is one which is
real property violative of personal
rights
action in rem action in personam
binds the whole binds only the party
world involve
44
Jurisdiction over the res in a land Jurisdiction over This is conferred by law
registration case the subject and, unlike jurisdiction
matter over the parties, cannot
A land registration case is a proceeding in rem, be conferred on the
court by the voluntary
and jurisdiction over the res cannot be acquired
act or agreement of the
in this case UNLESS there is a constructive seizure parties.
of the land through publication and service of Jurisdiction over This is determined and
notice (Republic vs. Herbieto, G.R. No. 156117, the issues of the conferred by the
May 26, 2005). case pleadings filed in the
case by the parties, or
by their agreement in a
Jurisdiction over the res in a suit for
pre-trial order or
annulment against a non-resident
stipulation, or, at times
defendant by their implied consent
as by the failure of a
A suit for annulment against a non-resident party to object to
defendant may prosper when the Court acquires evidence on an issue
jurisdiction over the res through summons by not covered by the
pleadings, as provided
publication or any of the modes of
in Sec. 5, Rule 10.
extraterritorial service under Sec. [17] of Rule 14
Jurisdiction over This is acquired by the
(Romualdez-Licaros vs. Licaros, G.R. No. 150656, the res actual or constructive
April 29, 2003). (or the property seizure by the court of
or thing which the thing in question,
Summary of Requisites for the exercise is the subject of t thus placing it in
of jurisdiction and how the court acquires he litigation) custodia legis, as in
such jurisdiction attachment or
garnishment; or by
provision of law which
Justice Florenz D. Regalado explains the recognizes in the
requisites for the exercise of jurisdiction and court the power to deal
how the court acquires such jurisdiction, thus: with the property or
subject matter within its
Jurisdiction over This is acquired by the territorial jurisdiction,
the plaintiff or filing of the complaint, as in land registration
petitioner petition or initiatiatory proceedings or suits
pleading involving civil status or
before the court by the real property in the
plaintiff or petitioner . Philippines of a non-
Jurisdiction over This is acquired by the resident defendant.
the defendant or voluntary appearance or (De Joya v. Marquez, G.R. No. 162416, January
respondent submission by the 31, 2006)
defendant or
respondent to the court In two cases, the court acquires jurisdiction to
or by coercive process try the case, even if it has not acquired
issued by the court to jurisdiction over the person of a nonresident
him, generally by the defendant, as long as it has jurisdiction over
service of summons.
the res, as when the action involves the personal

45
status of the plaintiff or property in the F. JURISDICTION VS. VENUE
Philippines in which the defendant claims an
interest. In such cases, the service of summons Jurisdiction Venue
by publication and notice to the defendant is As to definition
The authority of the The place where the
merely to comply with due process requirements.
court to hear and case is to be heard or
Under Sec. 133 of the Corporation Code, while a determine a case tried
foreign corporation doing business in the As to Nature
Philippines without a license cannot sue or Substantive Law Procedural Law
intervene in any action here, it may be sued or (Salvador v. Patricia, (Salvador v. Patricia,
proceeded against before our courts or Inc., G.R. No. 195834, Inc., G.R. No. 195834,
administrative tribunals. November 9, 2016) November 9, 2016)
(ibid.)
A wrong venue is a
mere procedural
E. JURISDICTION VS. EXERCISE OF
infirmity, not a
JURISDICTION
jurisdictional defect
(Pilipinas Shell
Jurisdiction is not the same as the exercise of
Petroleum Corp. v.
jurisdiction. As distinguished from the exercise Royal Ferry Services,
of jurisdiction, jurisdiction is the authority to Inc., G.R. No. 188146,
decide a cause, and not the decision rendered February 1, 2017).
therein. Where there is jurisdition over the As to relation established
person and the subject matter, the decision on It establishes a It establishes a
all other questions arising in the case is but an relationship between relationship between
the court and the plaintiff and
exercise of the jurisdiction. And the errors which
subject matter of the defendant, or
the court may commit in the exercise of
action; petitioner and
jurisdiction are merely errors of judgment which respondent;
are the proper subject of an appeal. (Heirs of As to susceptibility to stipulation
Borras v. Heirs of Borras, G.R. No. 213888, April Is fixed by law and May be conferred by
25, 2022, J. Hernando) cannot be conferred the act or agreement
by the parties (Nocum of the parties (Nocum
Thus, when a complaint for unlawful detainer is v. Tan, 470 SCRA v. Tan, 470 SCRA
639, 645) 639, 645)
filed with the Municipal Trial Court, the question
As to whether it may be waived
as to why it was filed with such court is a matter Being a matter of May be waived only in
of jurisdiction. When the court acts according to substantive law, civil cases,
such jurisdiction, renders a decision on the case cannot be waived by if not invoked either in
and executes its decision, such acts constitute the the parties (City of a motion to dismiss or
exercise of jurisdiction. Of course, implied from Lapu-Lapu v. in the
the above distinction is the rule that a valid Philippine Economic answer (City of Lapu-
Zone Lapu v. Philippine
exercise of jurisdiction presupposes that the court
Authority, G.R. No. Economic Zone
exercising jurisdiction has jurisdiction over the 184203, Nov. 26, Authority, G.R. No.
nature of the action. (Riano, Civil Procedure (The 2014) 184203, Nov. 26,
Bar Lecture Series), Vol. I, 2022 Edition, pp. 64- 2014)
65)
Note: In criminal

46
 cases, the venue is It established a system of amicably settling
jurisdictional. disputes at the barangay level. It was expressly
As to whether it may be a ground for repealed by R.A. No. 7160 (Local Government
dismissal Code of 1991). Most of its provisions, however,
The court may The court may not
were incorporated (with some modifications)
dismiss an action dismiss an action
motu proprio in case motu proprio for under Book III, Title I, Chapter VII of R.A. No.
of lack of jurisdiction improper venue 7160.
over the subject (Rudolf Lietz
matter (Rudolf Lietz Holdings, Inc. v. Rationale: The primordial aim of the
Holdings, Inc. v. Registry of Deeds of Katarungang Pambarangay Law is to reduce the
Registry of Deeds of Parañaque City, number of court litigations and prevent the
Parañaque City, G.R. No. G.R. No.
deterioration of the quality of justice which has
G.R. No. G.R. No. 133240 (2000))
133240 (2000)) been brought about by the indiscriminate filing of
(except cases in the courts (Zamora vs. Heirs of
in cases subject to Izquierdo, G.R. No. 146195, November 18, 2004).
Summary Procedure)
As to when objection should be made Proceedings before the barangay are not
Jurisdiction over the The objection to an judicial proceedings
subject matter may improper venue
be raised at any must be raised in the
stage of the answer as an (1) The proceedings before the Lupong
proceedings since it is affirmative defense. Tagapamayapa, or the Pangkat ng
conferred by law, (Sec. 12, Rule 8, Tagapagkasundo of the barangay, are not
although a party may Rules of Court) judicial proceedings. Legally, there is no
be barred from raising It is no longer a valid barangay court. It is not mentioned in B.P.
it on the ground of ground for a motion 129, as amended, and other pertinent laws on
estoppel (Lao v. to dismiss. jurisdiction, as one of the courts created by
Republic, 479 SCRA law.
439) (2) The lupon and the pangkat do not have
(Tan, Civil Procedure: A Guide for the Bench and inherent adjudicatory powers. They resolve
the Bar, Book I, 2020, p. 222) disputes or attempt to do so through amicable
settlement, conciliation, and arbitration (Secs.
G. JURISDICTION OVER CASES COVERED 410, 412, and 413, Local Government Code of
BY BARANGAY CONCILIATION, AND 1991).
CASES COVERED BY THE RULES ON (3) Any adjudicatory power exercised by any of
EXPEDITED PROCEDURES IN THE FIRST these bodies must be agreed upon by the
LEVEL COURTS (Administrative Matter parties in writing. Such agreement may
(A.M.) No. 08-8-7-SC, as amended, involve their willingness to abide by any
approved on March 1, 2022) arbitral award given by the lupon or the
pang/eat (Secs. 411 and 413, Local
Government Code of 1991). (Riano, Civil
Jurisdiction over Barangay Conciliation
Procedure (The Bar Lecture Series), Vol. I,
Proceedings 2022 Edition, p. 763).

Katarungang Pambarangay Law (Presidential Rule regarding referral of the case before
Decree No. 1508) the barangay lupon

47
As a general rule, no complaint, petition, action,
or proceedings involving any matter within the
authority of the Lupon shall be filed or instituted
directly or indirectly in court or in any other
government office for adjudication, unless there
has been a confrontation between the parties
before the Lupon chairman or the pangkat, and
that no conciliation or settlement has been
reached as certified by the Lupon Secretary as
attested to by the Lupon or pangkat chairman or
unless the settlement has been repudiated by the
parties thereto. (Tan, Civil Procedure: A Guide for
the Bench and the Bar, Book I, 2020, p. 236)
Venue of Barangay Conciliation
Proceedings
different cities and municipalities (Candido vs.
Macapagal, G.R. No. 101328, April 07, 1993).
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).
Disputes which are required to undergo
amicable settlement before the Lupon of a
Barangay

Disputes Venue All disputes are subject to Barangay conciliation

Between persons Barangay where the pursuant to the Revised Katarungang
actually residing in persons reside; Pambarangay Law (formerly Presidential Decree
the same barangay. amicable settlement No. 1508, repealed and now replaced by Secs.
before the Lupon of
399-422, Chapter VII, Title I, Book III, and Sec.
said barangay.
Involving actual Barangay where the 515, Title I, Book IV, Republic Act No. 7160,
residents of different respondent or any of otherwise known as the Local Government Code
barangays within the the respondents of 1991), and prior recourse thereto is a pre-
same city or actually resides, at condition before filing a complaint in court or any
municipality. the election of the government offices, disputes between parties
complainant. actually residing in the same city or municipality,
Involving real Barangay where the
except in the following disputes:
property or any real property or the
interest therein. larger portion thereof
is situated. (1) Where one party is the government, or any
Arising at the Barangay where such subdivision or instrumentality thereof;
workplace where the workplace or (2) Where one party is a public officer or
contending parties institution is located. employee and the dispute relates to the
are employed or at performance of his official functions;
the institution where (3) Where the dispute involves real properties
such parties are located in different cities and municipalities,
enrolled for study. unless the parties thereto agree to submit
(R.A. No. 7160, Sec. 409) their difference to amicable settlement by an
appropriate Lupon;
(4) Any complaint by or against corporations,
The fact that the petitioner and private partnerships or juridical entities, since only
respondent reside in the same municipality does individuals shall be parties to Barangay
not justify compulsory conciliation where the conciliation proceedings either as
other co-defendants reside in barangays of

48
 complainants or respondents (Sec. 1, Rule
VI, Katarungang Pambarangay Rules);
(5) Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate
Lupon;
(6) Offenses for which the law prescribes a
maximum penalty of imprisonment
exceeding one (1) year or a fine of over five
thousand pesos (P5,000.00);
(7) Offenses where there is no private offended
party;
(8) Disputes where urgent legal action is
necessary to prevent injustice from being
committed or further continued, specifically
the following:
(a) Criminal cases where accused is under
police custody or detention (Sec.
412[b][1], Revised Katarungang
Pambarangay Law);
(b) Petitions for habeas corpus by a person
illegally deprived of his rightful custody
over another or a person illegally
deprived of or on acting in his behalf;
(c) Actions coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property
and support during the pendency of the
action; and
(d) Actions which may be barred by the
Statute of Limitations.
(9) Any class of disputes which the President
may determine in the interest of justice or
upon the recommendation of the Secretary
of Justice;
(10) Where the dispute arises from the
Comprehensive Agrarian Reform Law (CARL)
(Secs. 46 and 47, Republic Act No. 6657);
(11) Labor disputes or controversies arising
from employer-employee relations (Montoya
vs. Escayo, 171 SCRA 442; Art. 226, Labor
Code, as amended, which grants original and
exclusive jurisdiction over conciliation and
mediation of disputes, grievances or
problems to certain offices of the
Department of Labor and Employment);
(12) Actions to annul judgment upon a
compromise which may be filed directly in
court (See Sanchez vs. Topaz, 158 SCRA
459). (M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, pp. 42-44)
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).
Effect of non-compliance
Subject to exemptions provided in Administrative
Circular No. 14-93, a party's failure to comply with
the requirement of prior barangay conciliation
before filing a case in court would render his
complaint dismissible on the ground of failure to
comply with a condition precedent. Moreover, as
a general rule, grounds for dismissal must be
invoked by the party-litigant at the earliest
opportunity, as in a motion to dismiss or in the
answer; otherwise, such grounds are deemed
waived. (Ngo vs. Gabelo G.R. No. 207707, August
24, 2020, J. Hernando)
Non-compliance with conciliation
proceedings is not jurisdictional
It is well-settled that the non-referral of a case
for barangay conciliation, when so required under
the law, is not jurisdictional in nature and may,
therefore, be deemed waived if not raised
seasonably in a motion to dismiss. Hence, a party
who does not raise the defect seasonably can no
longer raise the defense of non-compliance with
the barangay conciliation proceedings to seek the
dismissal of the complaint (Riano, Civil Procedure
(The Bar Lecture Series), Vol. I, 2022 Edition, p.
766, citing Spouses Santos v. Spouses Lumbao,
519 SCRA 408)
49
Note, however, that, under the Rules of Court,
"Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived" (Sec. 1, Rule 9, Rules of Court). Also, if
no motion to dismiss has been filed, any of the
grounds for dismissal provided for in Rule 16 may
be pleaded as affirmative defenses in the answer
(Sec. 1, Rule 16, Rules of Court; ibid.).

50
 Rules on Expedited Procedures in the First Level Courts
(A.M. No. 08-8-7-SC, )
(1) Cases falling under the 2016 Revised Rules of Procedure for Small Claims Cases, Small Claims
Cases, as defined hereunder, where the claim does not exceed PHP 1,000,000.00, exclusive
of interest and costs.
A “small claim” is an action that is purely civil in nature where the claim or relief raised by
the plaintiff is solely for the payment or reimbursement of a sum of money. It excludes
actions seeking other claims or reliefs aside from payment or reimbursement of a sum of
money and those coupled with provisional remedies.
The claim or demand may be:
(a) For money owed under any of the following:
• Contract of Lease
CIVIL

• Contract of Loan and other credit accommodations;

• Contract of Services; or
• Contract of Sale of personal property, excluding the recovery of the personal
property, unless it is made the subject of a compromise agreement between the
parties.
(b) The enforcement of barangay amicable settlement agreements and arbitration awards,
where the money claim does not exceed PHP 1,000,000.00, provided that no execution
has been enforced by the barangay within six (6) months from the date of the
settlement or date of receipt of the award or from the date the obligation stipulated
or adjudged in the arbitration award becomes due and demandable, pursuant to Sec.
417, Chapter VII of R.A. No. 7160, otherwise known as The Local Government Code
of 1991. (A.M. No. 08-8-7-SC)

51
 (2) Cases-falling under the 1991 Revised Rules on Summary Procedure now consists of the
following:
(a) Forcible entry and unlawful detainer cases, regardless of the amount to be recovered.
Attorney’s fees, if awarded, shall not exceed PHP100,000.00;
(b) All civil actions, except probate proceedings, admiralty and maritime actions and small
claims where the claim does not exceed PHP2,000,000.00.
(c) Complaints for damages where the claims do not exceed PHP2,000,000.00;
(d) Cases for enforcement of barangay amicable settlement agreements and arbitration
CIVIL

award where the money claim exceeds PHP1,000,000.00, provided that no execution
has been enforced within six (6) months from the settlement date or receipt of award
or the date when the obligation becomes due and demandable;
(e) Cases solely for the revival of judgment of any Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, pursuant to Rule
39, Sec. 6 of the ROC;
(f) The civil aspect of violations of B.P. Blg. 22 (BP 22), if no criminal action has been
instituted. Should a criminal action be later instituted for the same violation, the civil
aspect shall be consolidated with the criminal action and shall be tried and decided
jointly under the Rule on Summary Procedure.
All other cases not included herein shall be governed by the regular rules of procedure.
The following criminal cases shall be governed by the Rule on Summary Procedure:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg. 22 (the Bouncing Checks Law); and
CRIMINAL

(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding one (1) year, or a fine not exceeding Fifty Thousand Pesos
(PHP50,000.00), or both, regardless of other imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom. In offenses involving damage to property through
criminal negligence under Article 365 of the Revised Penal Code, this Rule shall govern where
the imposable fine does not exceed One Hundred Fifty Thousand Pesos (PHP150,000.00).
If the prescribed penalty consists of imprisonment and/or a fine, the prescribed imprisonment shall
be the basis for determining the applicable procedure.

All other cases not included herein shall be governed by the regular rules of procedure.

52
III. CIVIL PROCEDURE
A. GENERAL PROVISIONS (RULE 1)
The Rules of Court shall apply in all the courts,
except as otherwise provided by the Supreme
Court. (Rule 1, Sec. 2)
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.
(Alvero vs. de la Rosa, G.R. No. L-286, March 29,
1946)
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).
Actions or Proceedings Governed by the
Rules of Court
(1) Civil actions
(2) Criminal actions
(3) Special Proceedings (Rule 1, Sec. 3)
Actions or Proceedings NOT Governed by
the Rules of Court (NICOLE)
(1) Naturalization cases
(2) Insolvency proceedings
(3) Cadastral cases
(4) Other cases not provided for in the Rules;
(5) Land registration cases
(6) Election cases
However, the Rules may still apply to the cases
above by analogy or in suppletory character
and whenever practicable and convenient.
(Rule 1, Sec. 4)
Ordinary Civil Action
One by which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong. It is governed
by the rules for ordinary civil actions (Rule 1, Sec.
3[a])
Rules for Ordinary Civil Actions
(1) General Rules on Ordinary Civil Actions –
Rule 2 to Rule 5
(2) Procedure in Trial Courts - Rule 6 to Rule 39
(3) Appeals - Rule 40 to Rule 43
(4) Procedure in the Court of Appeals - Rule 44
to Rule 55
(5) Procedure in the SC - Rule 56
(6) Provisional Remedies - Rule 57 to Rule 61
Special Civil Action
One by which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong, but subject to
specific rules, as it has special features not found
in ordinary civil actions. It is governed by both
ordinary rules and the specific rules prescribed
under Rules 62 to 71. (Riano, Civil Procedure,
2016 ed., p. 191).
Criminal Action
One by which the state prosecutes a person for
an act or omission punishable by law. (Rule 1,
Sec. 3[b])
53
Special Proceedings petition/ special form of
A remedy by which a party seeks to establish a statement of pleading before
status, a right, or a particular fact (Rule 1, Sec. claims the court and
3[c]). (Initiatory the timely and
pleading) correct payment
before the clerk of docket and
Application of the Rules of Court of court and the other lawful fees
As a whole, the entire Rules of Court applies to timely and
civil actions, criminal actions, and special correct
proceedings. However, the Rules of Civil payment of the
Procedure refers only to civil actions – either corresponding
docket fees
ordinary or special. (Salazar, The Fundamentals
Parties Plaintiff and One party called
of Civil Procedure, p. 5, 2021)
defendant petitioner,
except in some
Civil Actions vs. Special Proceedings instances (e.g.
Special oppositor in the
Civil action probate of the
proceeding
Definition One which party Remedy by will)
sues another for which a party
the seeks to Kinds of civil actions as to cause or
enforcement or establish a foundation
protection of a status, a right,
right, or the or a particular
Real Actions and Personal Actions
prevention or fact. (Rule 1,
redress of a Sec. 3[c]) Real Action Personal
wrong. (Rule 1, Action
Sec. 3[a]) As to Action affecting It refers to all
Governed Rules of Rules 72 to 109 scope title to or other actions
rules ordinary civil of the Rules of possession of which are not
actions, subject Court, and rules real property or real actions.
to the specific on ordinary civil interest therein (Rule 4, Sec. 2)
rules prescribed actions in (Rule 4, Sec. 1);
for special civil suppletory seeks the Seeks the
actions; character (Rule recovery of real recovery of
Governed by 72, Sec. 2) property personal
Rules 1-71. property,
Basis of Every ordinary Establishes a enforcement of
action action must be status, a right or a contract or
the recovery of
based on a a particular fact
cause of action (Rule 1, Sec. damages (M.
(Rule 2, Sec. 1) 1[c]) De Leon,
Remedial Law
Nature Adversarial Non-adversarial,
Reviewer-
since it involves except when
Primer, 2021
two contending there is an
Edition, p. 46)
parties oppositor/
As to It is a local It is a transitory
respondent
venue action – its action – venue
How Filing a Filing a petition/
venue depends is the place
commenced complaint/ application/
upon where the where

54
 property, or a defendant or Local Actions vs. Transitory Actions
portion thereof, any of the Local Transitory
is situated (Rule defendants One that could be One that could be
4, Sec. 1); resides or may instituted in one prosecuted in any
be found, or specific place. (Manila one of several places;
where plaintiffs Railroad vs. Attorney-
or any plaintiffs General, G.R. No. L- Action is brought,
resides, at the 6287, December 1, generally, where the
election of the 1911); party resides,
plaintiff (Rule regardless of where
4, Sec. 2) One which has to be the cause of action
As to Founded upon Founded on filed in the place arose (The Manila
basis the privity of a privity of where the property is Railroad Co. vs.
real estate (the contract, such located. (Rule 4, Attorney- General,
realty, or an as an action Sec.1) G.R. No. 6287,
interest therein, which seeks to December 1, 1911).
is the subject enforcement of
matter of the a contract, or Commencement of Civil Action
action) (Riano, the recovery of
(Twin Requirement)
Civil Procedure damages
(The Bar Lecture
Series), Vol. I, p. (1) The filing of the original complaint in
218, 2022). court signifies the commencement of the
Importance of distinction civil action. (Rule 1, Sec. 5)

In order to determine the proper venue of the
action. (Rule 4, Secs. 1 and 2)
Not every action involving real property is
a real action
Realty may only be incidental to the subject
matter of the suit. In the cases of Heirs of
Bautista vs. Lindo (G.R. No. 208232, March 10,
2014) involving a complaint to redeem a parcel of
land subject of a free patent, and Olivarez Realty
vs Castillo (G.R. No. 196251, July 9, 2014)
involving an action for rescission of a contract
involving real property, the SC held that the
conveyance of real property was only
incidental to the determination of matters
incapable of pecuniary estimation. The cases
were deemed personal actions because the
principal action or remedy sought does not
involve title to or possession of real property.
(2) It is not simply the filing of the complaint or
appropriate initiatory pleading, but the
payment of the prescribed docket fee,
which vests a trial court with jurisdiction over
the subject-matter or nature of the action.
Where the filing of the initiatory pleading is
not accompanied by payment of the docket
fee, the court may allow payment of the fee
within a reasonable time but in no case
beyond the applicable prescriptive or
reglementary period. It shall not be
considered filed until and unless the filing fee
prescribed therefor is paid. (Proton Pilipinas
vs. Banque Nationale de Paris, G.R. NO.
151242, June 15, 2005)
Required payment of docket fees is
jurisdictional and also extends to the
following:
Don’t limit the principal action, such as the
complaint, third party complaint, intervention to
require the payment of docket fees because even
appeals and permissive counterclaims require
docket fees as well. Be careful with counterclaim

55
there must be a distinction, only permissive
counterclaim requires docket fees if it’s a
compulsory counterclaim having arose from the
same transaction is waived, you cannot bring that
as a separate action, because if not filed it will be
deemed waived but in permissive counterlcaims,
it is allowed to be filed as a separate action, but
if you file it in the same action you are making a
way not to pay docket fees. (Alday vs. FGU
Insurance, G.R. No. 138822, January 23, 2001)
Timely payment of the correct docket fees
Timely payment of the correct docket fees is not
limited to the principal action but even on
appeals. The right to appeal is a mere statutory
right. All the requirements for an appeal must be
strictly complied with. Hence, payment in full of
docket fees within the prescribed period is not
only mandatory, but also jurisdictional. It is an
essential requirement, without which, the
decision appealed from would become final and
executory as if no appeal has been filed. (St.
Louis University vs. Cobarrubias, G.R. No.
187104, August 3, 2010)
Correct payment of the full amount of
docket fees
that while the court acquires jurisdiction
over any case only upon the payment of the
prescribed docket fees, its non-payment at
the time of filing of the initiatory pleading
does not automatically cause its dismissal
provided that:
(a) the fees are paid within a reasonable
period; and
(b) there was no intention on the part of
the claimant to defraud the government.
(Camaso vs. TSM Shipping Inc, G.R. No.
223290, November 07, 2016)
(2) Insufficient payment of docket fees, if not
meant to defraud the government, will not
warrant dismissal for lack of jurisdiction.
(Proton Pilipinas vs. Banque Nationale de
Paris, G.R. NO. 151242, June 15, 2005)
As to defendants who may be additionally
impleaded
If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to
him on the date of the filing of such later
pleading, irrespective of whether the motion for
its admission, if necessary, is denied by the court.
(Rule 1, Sec. 5)
Construction and Application of the Rules

The Rules shall be liberally construed in order to

Payment of the full amount of docket fees within
promote their objective of securing a just, speedy
the prescribed period is not a mere technicality of
and inexpensive disposition of every action and
law or procedure but a jurisdictional requirement.
proceeding (Rule 1, Sec. 6)
Those who seek exemption from the application
of the rule have the burden of proving the
General Exception:
existence of exceptionally meritorious reasons
Rule:
warranting such departure. (Gipa vs. Southern
Strict Liberal construction in proper
Luzon Institute, G.R. No.177425, June 18, 2014) compliance to cases and under justifiable
facilitate the causes and circumstances
Exceptional cases when the failure to pay orderly (CIR vs. Mirant Pagbilao
the required docket did not result to the administration Corp., G,R, No. 159593,
dismissal of a case. of justice October 12, 2016)
(Asiatrust
(1) The failure to pay the required docket fees
Development Compliance with the
per se should not necessarily lead to the
Bank vs. First procedural rules is still the
dismissal of a case. It has long been settled

56
Aikka general rule, and
Development, abandonment thereof should
Inc. G.R. No. only be done in the most
179558, June exceptional circumstances.
11, 2011) (Pilapil vs. Heirs of Briones,
G.R. No. 150175, February 5,
2007). Concomitant to a
liberal application of the
rules of procedure should be
an effort on the part of the
party invoking liberality to
explain his failure to abide by
the rules (Sebastian vs.
Morales, G.R. No. 141116,
February 17, 2003)
B. KINDS OF ACTION
Kinds of civil actions as to object
(1) In rem
(2) In Personam
(3) Quasi In Rem

57
Action In Rem, Action In Personam and Action Quasi in Rem

Action in rem Action in personam Action quasi in rem

As to Action directed against the
whom res or thing itself, instead of
directed; against a person; seeks to
nature bind any person who may
have a claim or interest in
the res (M. De Leon,
Remedial Law Reviewer-
Primer, 2021 Edition, p. 47)
As to effect The decision is binding as
of against the whole world.
judgment (Paderanga vs. Buissan, GR.
No. 49475, September 28,
1993)
Jurisdiction Jurisdiction over the person
over the of the defendant NOT a
PERSON prerequisite to confer
jurisdiction on the court,
provided that the latter has
jurisdiction over the res
(Lucas vs. Lucas, G.R. No.
190710, June 6, 2011)
Note: Nonetheless, summons must be served upon the defendant, not for the purpose
of vesting the court with jurisdiction but merely for satisfying the due process
requirements.(Biaco vs. Philippine Countryside Rural Bank, G.R. No. 161417, February 8,
2007)
Action directed against a
person on the basis of his
personal liability; seeks to
make a specific person
personally liable to pay
certain sum of money, or to
deliver a thing or to perform
or not to perform a specific
act. (M. De Leon, Remedial
Law Reviewer-Primer, 2021
Edition, p. 47)
Any judgment therein is
binding only upon the
parties properly impleaded
(Paderanga vs. Buissan, GR.
No. 49475, September 28,
1993)
Jurisdiction over the parties
is required in actions in
personam, because they
seek to impose personal
responsibility or liability
upon a person. (Frias vs.
Alcayde, G.R. No. 194262,
February 28, 2018)
One that names a specific
defendant, but the
purpose of the action is to
subject that person’s
interest in a property to a
corresponding lien or
obligation burdening the
res. (Lucas vs. Lucas, G.R.
No. 190710, June 6,
2011).
Neither strictly in
personam nor in rem but
it is an action in personam
where a res is affected by
the decision (M. De Leon,
Remedial Law Reviewer-
Primer, 2021 Edition, p.
48)
Judgments therein are
binding only upon the
parties who joined in the
action; they affect only
the interests of the
particular parties (De
Pedro vs. Romasan
Development
Corporation, G.R. No.
194751, November 26,
2014).
NOT a prerequisite to
confer jurisdiction on the
court, provided that the
latter has jurisdiction over
the res (Lucas vs. Lucas,
G.R. No. 190710, June 6,
2011)

Due process requires that those with interests in the thing in litigation be notified and
given an opportunity to defend those interests. (Riano, Civil Procedure (The Bar Lecture
Series), Vol. I, p. 233, 2022)

58
 Jurisdiction over the parties is required regardless of the type of action - whether the
action is in personam, in rem, or quasi in rem; it is required in an in rem and quasi in
rem action to satisfy the requirements of due process (De Pedro vs. Romasan
Development Corp., G.R. No. 194751, November 26, 2014).
How Jurisdiction over the res is Jurisdiction is acquired Jurisdiction over the res
jurisdiction acquired either: through: is acquired either:
is acquired a) by the seizure of the a) VALID service of a) by the seizure of the
property under legal summons property under legal
process, whereby it is b) voluntary appearance process, whereby it is
brought into actual brought into actual
custody of the law, or custody of the law, or
b) as a result of the b) as a result of the
institution of legal institution of legal
proceedings, in which proceedings, in which
the power of the court is the power of the court
recognized and made is recognized and
effective. (Lucas vs. made effective.
Lucas, G.R. No. 190710, (Lucas vs. Lucas, G.R.
June 6, 2011) No. 190710, June 6,
2011)
Examples Petitions which concern the Actions for collection of a Suits to quiet title, actions
status of a person: petition sum of money and damages; for foreclosure; and
for adoption, correction of action for unlawful detainer attachment proceedings
or forcible entry; action for (Frias vs. Alcayde, G.R.
entries in the birth certificate
specific performance; action No. 194262, February 28,
or annulment of marriage, to enforce a foreign 2018)
nullity of marriage, petition judgment in a complaint for Action for partition and
to establish illegitimate breach of contract" (Frias vs. action for accounting
filiation; registration of land Alcayde, G.R. No. 194262,
under the torrens system; February 28, 2018)
and forfeiture proceedings
(Frias vs. Alcayde, G.R. No.
194262, February 28, 2018);

Significance of distinction among the kinds

of actions as to object
To determine whether or not jurisdiction over
the person of the defendant is required, and the
type of summons to be employed (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 229,
2022)
An action in personam is not necessarily a
personal action, nor is a real action,
necessarily an action in rem
An in personam or an in rem action is a
classification of actions according to the object of
the action. It is in rem when directed against the
whole world, and in personam when directed
against a particular person. For instance, an
action to recover title to or possession of real
property is a real action, but it is an action in
personam. It is not brought against the whole
world, but against the person upon whom the
claim is made. An action to recover a parcel of
land is a real action, but it is an action in

59
personam, for it binds a particular individual only, person who has committed a delict or wrong
although it concerns the right to a tangible thing against him (Multi-Realty Dev’t Corp vs. The
(Republic vs. Court of Appeals, G.R. No. 122269, Makati Tuscany Condominium Corp., G.R. No.
September 30, 1999) 146726, June 16, 2006).

An action for the declaration of nullity of a Elements of Right of Action

marriage is a personal action because it is not
founded on real estate. It is, at the same time, an (1) Existence of a cause of action or compliance
with all conditions precedent to the bringing
in rem action because the issue of the status of a
of the action; and,
person is one directed against the whole world. (2) Right to bring and maintain the action must
One's status is a matter that can be set up against be in the person instituting it (Turner vs.
anyone in the world. (Riano, Civil Procedure: The Lorenzo Shipping, G.R. No. 157479,
Bar Lecture Series), Vol. I, p. 228, 2022) November 24, 2010).

C. CAUSE OF ACTION (RULE 2) There can be no right of action without a cause

of action being first established. (Español vs. The
A cause of action is an act or omission by which Chairman and Members of the Board of
a party violates a right of another (Rule 2, Sec. 2) Administrators, Philippine Veterans
Administration, G.R. No. L-44616, June 29, 1985)
Without a cause of action, one cannot seek
judicial relief for a violation of one’s rights Cause of Action vs. Right of Action
because every ordinary civil action must be based
on a cause of action (Rule 2, Sec. 1) Cause of Action Right of Action
Delict or wrongful Right to relief granted
Elements of a cause of action act or omission by law to a party to
committed by the institute an action
defendant in against a person who
As applied to ordinary civil actions, the following
violation of the has committed a delict
are the elements of a cause of action: (ROA) primary rights of the or wrong against him.
plaintiff.
(1) A legal Right in favor of the plaintiff; The reason for the The remedy afforded to
(2) A correlative legal Obligation of the action; the delict or the aggrieved party;
defendant to respect such right; and wrong the right to sue as a
(3) An Act or omission by such defendant in consequence of the
violation of the right of the plaintiff, with a delict
resulting injury or damage to the plaintiff for Cause: The presence Effect:
which the latter may maintain an action for of a cause of action The right of action is
the recovery of relief from the defendant. is the basis for a triggered, or is the
(Metropolitan Bank and Trust Company vs. right of action to result of having a cause
Ley Construction and Development exist. of action
Corporation, G.R. No. 185590, December 3, The formal Right to litigate is given
2014) statement of alleged because of the
facts. occurrence of the
Right of Action alleged facts.
Matter of procedure Matter of right
It is the remedial right or right to relief granted
by law to a party to institute an action against a

60
 Determined by facts Determined by or other matters or after the conduct of
alleged in the substantive law (De aliunde hearing on the merits
complaint Guzman vs. CA, G.R. of the case
Nos. 92029-30, Does not concern Arises because the
December 20, 1990). itself with the truth judge has determined
Not affected by Affected by affirmative and falsity of the the truth and falsity of
affirmative defenses defenses allegations in the the allegations and
pleading has found the
Failure to State a Cause of Action evidence wanting
The proper remedy The proper remedy
It is a defect or an insufficiency in the statement when there is a failure when the complaint is
of the cause of action or the allegations in the to state a cause of not based on a cause
pleading, i.e., not all the elements of a particular action is to allege the of action is to file a
cause of action are alleged. (Zuñiga-Santos vs. same as an Demurrer of Evidence
Santos-Gran, G.R. No. 197380, October 8, 2014) affirmative defense in under Rule 33 after
the Answer. (Rule 8, the plaintiff has
Failure to state a cause of action is no longer a Sec. 12[a][4]) completed presenting
ground for a motion to dismiss under the his evidence.
Failure to raise the
Amended Rules. It is, however, one of the
affirmative defenses
enumerated Affirmative Defenses that must be at the earliest
set out in the Answer or else it is deemed waived. opportunity shall
(Rule 8, Sec. 12) constitute a waiver
thereof. (Rule 8, Sec.
The complaint must contain a concise statement 12[b])
of the ultimate or essential facts constituting the The dismissal is The dismissal
without prejudice to constitutes res
plaintiff’s cause of action. The focus is on
the refiling of an judicata on the issue,
sufficiency, not veracity, of the material amended complaint. and will bar future
allegations. (Anchor Savings Bank vs. Furigay, suits based on the
G.R. No. 191178, March 13, 2013) same cause of action.
(Apostolic Vicar of Tabuk, Inc. vs. Spouses Sison,
Failure to state a Cause of Action vs. Lack G.R. No. 191132, January 27, 2016); (Domondon
of Cause of Action vs. Lopez, A.M. No. RTJ-02-1696, June 20, 2002);
(Macasalang vs. Zamora, G.R. No. 156375, May
Failure to State a Lack of Cause of 30, 2011)
Cause of Action Action
Refers to the Refers to a situation Test of Sufficiency of Cause of Action
insufficiency of the where the evidence
allegations in the failed to prove the
The test of sufficiency of a cause of action rests
pleading cause of action
alleged in the on whether, hypothetically admitting the
pleading facts alleged in the complaint to be true,
Can be determined Can be resolved only the court can render a valid judgment upon
only from the on the basis of the the same, in accordance with the prayer in the
allegations in the evidence presented in complaint. (Heirs of Maramag vs. Maramag, G.R.
initiatory pleading and support of the claim, No. 181132, June 5, 2009)
NOT from evidentiary after stipulations and
admissions are made

61
General Rule: Determination shall be based
only on facts alleged in the complaint and
from no other, and the court cannot consider
other matters aliunde (Manaloto vs. Veloso III,
G.R. No. 171635, October 6, 2010)
It is error for the court to take cognizance of
external facts or to hold preliminary hearings to
determine its existence. (Diaz vs. Diaz, G.R. No.
135885, April 28, 2000)
Exception: Instances when the SC considered
matters aside from the facts alleged in the
complaint, such as:
(a) Documents attached to the complaint
(Agrarian Reform Beneficiaries Association
vs. Nicolas, G.R. No. 168394, October 6,
2008) – this case refers to actionable
documents which by express provision of the
Rules of Court are deemed part of the
pleading.
(b) Appended annexes, other pleadings, and
admissions on record (Spouses Zepeda vs.
China Banking Corp., G.R. No. 172175,
October 9, 2006)
Note: There is no hypothetical admission of
the veracity of the allegations if:
(a) The falsity of the allegations is subject to
judicial notice;
(b) The allegations are legally impossible;
(c) The allegations refer to facts which are
inadmissible in evidence;
(d) By the record or document in the pleading,
the allegations appear unfounded; or
(e) There is evidence which has been
presented to the court by stipulation of
the parties or in the course of hearings
related to the case (Heirs of Maramag vs.
Maramag, G.R. No. 181132, June 5, 2009)
Splitting a Single Cause of Action
It refers to the act of instituting two or more
suits on the basis of the same cause of action
(Rule 2, Sec. 4)
This is expressly prohibited by the Rules as it is
specifically mandated that a party may not
institute more than one suit for a single cause of
action. (Rule 2, Sec. 3)
Note: The prohibition also applies to
counterclaims and cross-claims. (Mariscal v. CA,
G.R. No. 123926, July 22, 1999)
Purpose of prohibition against splitting of a
single cause of action
To prevent repeated litigation between the same
parties in regard to the same subject of
controversy; to protect defendant from
unnecessary vexation; and to avoid the costs and
expenses incident to numerous suits (City of
Bacolod vs. San Miguel Brewery, G.R. No. L-
25134, October 30, 1969)
To avoid unduly burdening the dockets of the
court (Dynamic Builders & Construction Co Inc vs.
Presbitero, Jr. G.R. No. 174202, April 7, 2015)
Tests to determine whether two suits
relate to a “single” cause of action
The tests to ascertain whether two suits relate to
a single or common cause of action are: (EDEx)
(a) Evidence – Whether the same evidence
would support and sustain both causes of
action (Same Evidence Test);
(b) Defenses – Whether the defenses in one
case may be used to substantiate the
complaint in the other; and
(c) Existence – Whether the cause of action in
the second case existed at the time of filing
of the first complaint. (Umale vs. Canoga
Park Development Corp., G.R. No. 167246,
July 20, 2011)
62
Effect of splitting of cause of action rendered in the
first action when
If two or more suits are instituted on the basis of the second action
the same cause of action, the filing of one, or a is filed (Rule 15,
Sec. 12 [a][3])
judgment upon the merits in any one, is
available as a ground for the dismissal of the
others (Rule 2, Sec. 4) Divisible contracts: rules in “splitting” of
cause of action
Example of splitting a single cause of
action: General Rule: Exception:
A contract A contract to do
embraces only several things at
B is a debtor of A who is a bank. B mortgage his
one cause of several times is divisible
property to A to answer for a loan in case of action because it in its nature. This kind of
default. If B fails to pay A, then A cannot file a may be violated obligation authorizes
civil action against the B for the collection of the only once even if it successive actions and a
debt and then subsequently file an action to contains several judgment recovered for a
foreclose the mortgage. stipulations. single breach does not
(Quiogue v. bar a suit for a
Bautista, G.R. No. subsequent breach.
Defendant’s remedy Plaintiff's
L-13159, February (Blossoms & Co. v. Manila
against splitting of a remedy if other
28, 1962) Gas Corporation, G.R. No.
single cause of action reliefs not
L-32958, November 8,
included in the
1930)
complaint:
amendment
Doctrine of Anticipatory Breach
The defendant may In the event that a
If the obligor manifests an unqualified and
either: plaintiff has
positive refusal to perform a contract,
(a) Allege the infirmity as omitted to include
though the performance of the same is not yet
an Affirmative in the complaint
due, and the renunciation goes to the whole
Defense in his one or several
contract, it may be treated as a complete
Answer (Rule 6, Sec. other reliefs to
breach, which will entitle the injured party to
5[b]) or which he may be
bring his action at once. In this case, the breach
entitled, the proper
is considered a total breach and there can only
(b) File a Motion to remedy of the
be one action and the plaintiff must recover all
Dismiss on the plaintiff is NOT to
his damages therein (Blossoms & Co. v. Manila
following grounds: institute another or
Gas Corporation, G.R. No. L-32958, November 8,
i. Litis pendentia, if several other
1930)
the first action actions – instead
between the he should move to
Joinder and Misjoinder of Causes of Action
same parties for amend the
the same cause is complaint to
Joinder of causes of action
still pending when include the omitted
the second action relief or reliefs
It is the assertion of as many causes of action as
is filed (Rule 15, (Bayang vs. CA, a party may have against an opposing party in
Sec. 12 [a][2]); or G.R. No. L-53564, one pleading alone. (Rule 2, Sec. 5)
ii. Res judicata, if February 27, 1987)
final judgment
It is not compulsory, but merely permissive, as
had been
there is no positive provision of law or any rule of

63
jurisprudence which compels a party to join all his Note: The totality rule applies only to the
causes of action and bring them at one and the MTC — totality of claims cannot exceed the
same time. (Nabus v. CA, G.R. No. 91670, jurisdictional amount of the MTC.
February 7, 1991)
There is no totality rule for the RTC because
Conditions for joinder of causes of action its jurisdictional amount is without limit. Exc.
In tax cases where the limit is below P1
(1) The party joining the causes of action must million. Amounts of P1 million or more fall
comply with the rules on joinder of within the jurisdiction of the CTA. (M. De
parties, such that: Leon, Remedial Law Reviewer-Primer, 2021
Edition, pp. 53-54)
(a) The right of relief arises out of the same
transaction or series of transactions; Illustration - Joinder of Causes of action
(b) There is a question of law or fact (Sec. 5, Rule 2)
common to all such plaintiffs or
defendants; It is the process of uniting two or more demands
(c) Such joinder is not otherwise proscribed or rights of action in one action.
by the provisions of the rules on Ordinary –
jurisdiction and venue (Regalado, F.D., Ordinary
Remedial Law Compendium, Volume 1, (Allowed)
p. 91); Note:
(1) If the claims (1) 2 collections of sum of
(2) The joinder shall NOT include special in all the money between the
civil actions or actions governed by causes of same parties
special rules (Salvador vs. Patricia, GR No. action are
195834, November 09, 2016); principally
for recovery
(3) Where the causes of action are between the of money,
same parties but pertain to different venues the
or jurisdiction, the joinder may be aggregate
allowed in the RTC provided one of the amount
causes of action fall within the claimed
jurisdiction of said court and the venue shall be the
lies therein; test of
jurisdiction.
Note: Ejectment case may not be joined with (S5 R2).
an action within the jurisdiction of the RTC as (2) Where the (2) P, a Manila resident,
the same comes within the exclusive causes of filed a complaint
jurisdiction of the MTC (M. De Leon, action are against D, a resident of
Remedial Law Reviewer-Primer, 2021 between the Iloilo City, in the RTC of
Edition, p. 53) same Manila. The complaint
parties but joins 2 causes of
(4) Totality Rule - Where the claims in the pertain to action: one for
causes of action are principally for the different collection of P2.5M and
recovery of money, the aggregate amount venues or the other for title to
claimed shall be the test of jurisdiction (Rule jurisdictions, real property in Iloilo
2, Sec. 5). This is irrespective of which the joinder City with an assessed
causes of action arose out of the same or may be value of P500,000,
different transaction. allowed in both causes of action
the RTC being unrelated to

64
 provided each other. Was there proper? A. No. Under S5
one of the a proper joinder of R2, the joinder of causes of
causes of causes of action? action shall not include
action falls special civil actions. Here
within the A. Yes. Where the the action for foreclosure is
jurisdiction causes of action are a special civil action. Hence
of the RTC between the same its joinder is improper.
and the parties but pertain to Special – mandamus and prohibition
venue lies different venues or Special
therein. jurisdictions, the (Allowed)
joinder may be allowed
in the RTC provided Splitting of cause of action vs. Joinder of
one of the causes of cause of action
action falls within the
jurisdiction of the RTC
Splitting of Joinder of cause of
and the venue lies
cause of action
therein. (S5[c] R2).
action
Here the sum of money
case falls within the There is a Contemplates several
jurisdiction of the RTC single cause causes of action.
of Manila and the of action
venue lies therein. Prohibited Encouraged, as it
(Rule 2, Sec. 3) minimizes multiplicity of
The fact that the as it causes suits and inconvenience to
causes of action are multiplicity of the parties; but no sanction
unrelated to each other suits and against non- joinder since a
does not affect the double plaintiff needs only a single
propriety of the joinder vexation on cause of action to maintain
of causes of action. the part of the an action.
There is no need to defendant.
comply with the rule on
joinder of parties since Misjoinder of Causes of Action
the causes of action
are between the same There is misjoinder of causes of action when
parties. conditions for joinder under Rule 2, Sec. 3 are not
Ordinary – In a series of related met. (Sps. Perez vs. Hermano, G.R. No. 147417,
Special (Not transactions, P lent July 8, 2005)
Allowed) P200,000 to D which is
unsecured and another It is NOT a ground for dismissal of an action. A
P300,000 secured by a real misjoined cause of action may, on motion of a
estate mortgage over a party or on the initiative of the court, be
land with an assessed severed and proceeded with separately (Rule 2,
value of P75,000. D Sec. 6)
defaulted in the payment of
both loans. P filed a Subject to waiver
complaint with the RTC
joining his action to recover If there is no objection to the improper joinder or
P200,000 and another for the court did not motu proprio direct a severance,
foreclosure of mortgage. Is then there exists no bar in the simultaneous
the joinder of actions adjudication of all the erroneously joined causes

65
of action, as long as the court trying the case has
jurisdiction over all of the causes of action therein
notwithstanding the misjoinder. (Ada vs. Baylon,
G.R. No. 182435, August 13, 2012)
If the court has no jurisdiction to try the misjoined
action, then it must be severed. Otherwise,
adjudication rendered by the court with respect
to it would be a nullity. (Ada vs. Baylon, G.R. No.
182435, August 13, 2012)
D. PARTIES TO CIVIL ACTIONS (RULE 3)
Plaintiff may refer to the claiming party,
counter-claimant, cross-claimant, or third-party
plaintiff. (Rule 3, Sec. 1)
Defendant may refer to the original defending
party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party
defendant. (Rule 3, Sec. 1)
Also includes an unwilling co-plaintiff – any
party who should be joined as plaintiff but whose
consent cannot be obtained. He may be made a
defendant and the reason therefore shall be
stated in the complaint. (Rule 3, Sec. 10)
Requirements for a person to be a party to
a civil action
(1) He must be a:
(a) Natural person;
(b) Juridical person; or
(c) Entity authorized by law (Rule 3, Sec. 1)
(2) He must have legal capacity to sue (Alliance
of Quezon City Home Owners' Association
vs. Quezon City Government, G.R. No.
230651, September 17, 2018); and
(3) He must be the real party-in-interest

Who can be parties in a civil action

Natural A human being as distinguished from a juridical person (as a corporation, created by
persons operation of law)
(Rule 3, (a) Must be of legal age and with capacity to sue (Art. 37, Civil Code)
Sec. 1) (b) Husband and wife shall sue and be sued jointly (Rule 3, Sec. 4)
(c) Minor or incompetent — with the assistance of the father, mother, guardian, or if he
has none, a guardian ad litem (Rule 3, Sec. 5)
(d) Non-resident (M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, p. 60)
Juridical The juridical persons who may be parties to a civil action are those enumerated in Article
persons 44 of the Civil Code:
(Rule 3, (a) The State and its political subdivisions;
Sec. 1) (b) Other corporations, institutions and entities for public interest or public purpose,
created by law (government-owned or controlled corporations); and
(c) Corporations, partnerships, and associations for private interest or purpose to which
the law grants a judicial personality, separate and distinct from that of each
shareholder, partner, or member.
Entities Entities authorized by law may sue or be sued, or both, even if they lack juridical
authorized personality –
by law (a) A corporation by estoppel is precluded from denying its existence, and the members
(Rule 3, are liable as general partners (Sec. 21, Corporation Code)
Sec. 1) (b) A partnership with capital of at least P3,000 which fails to comply with the registration
requirements is liable as a partnership to third persons (Arts. 1768, 1772, Civil Code)

66
 (c) The estate of a deceased person is a juridical entity that has a personality of its own
(Nazareno v. C.A., G.R. No. 138842, October 18, 2000 citing Limjoco v. Intestate
Estate of Fragrante, G.R. No. L-770 April 27, 1948)
(d) A legitimate labor union may sue and be sued in its registered name ( Art. 251(e),
Labor Code)
(e) The Roman Catholic Church may be a party; as to its properties, the Archbishop of
diocese to which they belong may be a party ( Barlin vs. Ramirez, G.R. No. 2832,
November 24, 1906; Versoza vs. Fernandez, G.R. No. 32276, November 19, 1930)
(f) A dissolved corporation may prosecute and defend suits by or against it provided
that the suits 1) occur within three (3) years after its dissolution, and 2) the suits are
in connection with the settlement and closure of its affairs (Sec. 139, Revised
Corporation Code)
(g) Two or more persons not organized as an entity with juridical personality but enter
into a transaction may be sued under the name by which they are generally known
(Rule 3, Sec. 15)

(1) Real Parties in Interest; Indispensable necessarily “by” the

Parties; Necessary Parties; real party-in-interest)
Representative Parties; Indigent
Party; Alternative Defendants Rationale as to why actions should be filed
under the name of the real party-in-
(a) Real Party-in-Interest interest
(1) To prevent the prosecution of actions by
The party who stands to be benefited or injured persons without any right, title or interest in
by the judgment in the suit, or the party entitled the case;
to the avails of the suit (Rule 3, Sec. 2). (2) To require that the actual party entitled to
legal relief be the one to prosecute the
Nature of interest action;
(3) To avoid multiplicity of suits; and
The interest must be a present and (4) To discourage litigation and keep it within
substantial interest, as distinguished from a certain bounds, pursuant to sound public
mere expectancy or a future, contingent, policy. (Oco v. Limbaring, G.R. No. 161298,
subordinate, or consequential interest. (Rayo v. January 31, 2006)
Metrobank, G.R. No. 165142, December 10,
2007)
Remedy if the suit is NOT in the name of or
It should be material and direct, as against the real party-in-interest
distinguished from a mere incidental interest
(Mayor Rhustom Dagadag v. Tongnawa, G.R. No. The defendant must set out in his answer as an
161166-67, February 3, 2005)
affirmative defense the ground that the
complaint “states no cause of action.” (Riano,
General Rule Exception Civil Procedure (The Bar Lecture Series), Vol. I, p.
Every action must be When otherwise 249, 2022)
prosecuted or authorized by law or
defended in the name the rules (Rule 3, Sec. Lack of legal capacity to sue vs. Lack of
of the real party-in- 2). legal personality to sue
interest. (Note: Not

67
 Lack of legal Lack of legal (China Banking Corp. vs Oliver G.R. No. 135796
Capacity to sue Personality to sue October 3, 2002)
It refers to plaintiff’s The plaintiff is not the
general disability to real party in interest. Examples of indispensable parties
sue such as on (Columbia Pictures, (1) Vendors – in an action to annul the sale
account of minority, Inc. v. CA, G.R. No. (2) Lot buyers – in an action for reconveyance
insanity, 110318, August 28, of parcels of land which had already been
incompetence, lack of 1996) subdivided
juridical personality or (3) Co-owners – in an action for partition
any other general (4) Possessor of land – in an action for recovery
disqualifications of a of possession (M. De Leon, Remedial Law
party. (Columbia Reviewer-Primer, 2021 Edition, p. 57)
Pictures, Inc. v. CA,
G.R. No. 110318, Tests to determine whether a party is an
August 28, 1996) indispensable party
Remedy: File an Remedy: File an
(1) Can relief be afforded to the plaintiff without
answer and raise as answer and raise as
the presence of the other party?
an affirmative an affirmative
(2) Can the case be decided on its merits
defense lack of defense that the
without prejudicing the rights of the other
capacity to sue. (Rule complaint states no
party? (Republic vs. Sandiganbayan. GR. No.
8, Sec. 12) cause of action. (Rule
152154, July 15, 2003).
8, Sec. 12)
Co-owners as indispensable parties
(b) Indispensable Parties
In suits to recover properties, all co-owners are
An indispensable party is a real party-in-interest real parties in interest. However, pursuant to
without whom no final determination can be had Article 487 of the Civil Code and relevant
of an action (Rule 3, Sec. 7) jurisprudence, any one of them may bring an
action, any kind of action, for the recovery of co-
An indispensable party is one whose interest in owned properties. Therefore, only one of the
the subject matter of the suit and the relief co-owners, namely the co-owner who filed
the suit for the recovery of the co-owned
sought are so inextricably intertwined with the
property, is an indispensable party thereto.
other parties that his legal presence as a party to The other co-owners are not indispensable
the proceeding is an absolute necessity. parties. They are not even necessary parties, for
(Benedicto-Munoz vs. Cacho-Olivares, G.R. No. a complete relief can be accorded in the suit even
179121, November 9, 2015) 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.
A party is not indispensable to the suit if his
153788, November 27, 2009)
interest in the controversy or subject matter is
distinct and divisible from the interest of the other General Rule: Co-owners are indispensable
parties and will not necessarily be prejudiced by parties (Divinagracia vs. Parilla et al., G.R. No.
a judgment which does complete justice to the 196750, March 11, 2015) but only as defendants;
parties in court. A party is also not indispensable they are NOT indispensable parties-plaintiffs.
if his presence would merely permit complete (Marmo vs. Dacanay, GR No. 182585, November
27, 2009)
relief between him and those already parties to
the action, or will simply avoid multiple litigation.

68
Under this qualification, a co-owner may bring an parties, or for
action without joining all the other co-owners as a complete
co-plaintiffs because the suit is deemed to be determination
instituted for the benefit of all. (Catedrilla vs. or settlement
Lauron, G.R. No. 179011, April 15, 2013). of the claim
However, if an action is filed against the co- subject of the
owners, ALL of them must be joined as action. (Rule
defendants. 3, Sec. 8)
As to Must be Not required
Rule on solidary obligations necessity joined under to be joined;
Where the obligation of the parties is solidary, for final all conditions; final
either of the parties is indispensable, and the deter- no final determination
other is not even a necessary party because mination determination may be had of
complete relief is available from either (Cerezo vs. may be had of an action even
Tuazon, G.R. No. 141548, March 23, 2004) an action if an if a necessary
indispensable party is not
Further discussion on indispensable parties party is not impleaded.
(effect of failure to implead, remedy in case of impleaded.
omission) under Compulsory Joinder below. Absence does
Absence not prevent
(c) Necessary Parties renders all the court from
subsequent proceeding in
Necessary parties are real parties-in-interest who actions of the the action and
are not indispensable but ought to be joined as court null and the judgment
parties: void, for want of is without
authority to act, prejudice to
not only as to the rights of
(a) if complete relief is to be accorded to those
the absent such
already parties, or for a
parties but even necessary
(b) complete determination or settlement of the
as to those party.
claim subject of the action (Rule 3, Sec. 8).
present
As to The court may Will not result
Further discussion on effect of omission of
effect of dismiss the case in the
necessary parties under Compulsory Joinder
failure to for failure to dismissal of
below.
implead prosecute. the case but
despite a (Rule 17, Sec. simply the
Indispensable parties vs. Necessary court 3) waiver of the
parties order plaintiffs claim
Note: Non- against such
Indispensable Necessary joinder of necessary
parties parties parties not a party. (Rule 3,
As to Parties in Parties who ground for Sec. 9)
definition interest without ought to be outright
whom no final joined as a dismissal of an
determination party if action (Rule 3,
can be had of complete Sec. 11)
an action (Rule relief is to be As to No valid The case may
3, Sec. 7) accorded as to judgment judgment if be determined
those already they are not in court but
joined the judgment

69
 therein will A person need not be judicially declared
not afford a incompetent in order that the court may appoint
complete a guardian ad litem. It is enough that he be
relief in favor alleged to be incompetent.
of the
prevailing In case of supervening incapacity or
party. incompetency of a party, the action shall continue
(Riguera, Primer-Reviewer on Remedial Law, Vol. to be prosecuted by or against that party
I Civil Procedure, p. 148, 2022). personally and NOT through his representative,
since he continues to be the real party in interest
although assisted by his guardian.
(d) Representative Parties
Supervening incompetency or incapacity
A representative party is one who represents or
stands in the place of another and who is allowed
If a party becomes incompetent or incapacitated,
to prosecute or defend an action for the
the court, upon motion with notice, may allow the
beneficiary. (M. De Leon, Remedial Law
action to be continued against the incompetent or
Reviewer-Primer, 2021 Edition, p. 58)
incapacitated person assisted by his or her legal
guardian or guardian ad litem. (Rule 3, Sec. 18)
The beneficiary shall be included in the title of the
case and shall be deemed to be the real party in
Pro-forma Party
interest (Rule 3, Sec. 3)
One that is required to be joined as a co-party in
Who may be representatives
a suit by or against another party, as may be
provided by the applicable substantive law or
(a) Trustee of an express trust;
procedural rule (Rule 3, Sec. 4)
(b) Guardian;
(c) Executor or administrator;
A nominal or pro forma party is one who is joined
(d) Party authorized by law or the Rules of Court
as a plaintiff or defendant, not because such
(Rule 3, Sec. 3)
party has any real interest in the subject matter
or because any relief is demanded, but because
Agent as a representative party
the technical rules of pleadings require the
presence of such party on the record.
General Rule: An agent may sue or be sued
without joining the principal if he acted:
General Spouses should sue and be sued
(1) In his own name, and
Rule: together as they are both
(2) For the benefit of an undisclosed principal
administrators of their
(V-GENT, Inc. vs. Morning Star Travel and
community property or conjugal
Tours, Inc, GR No. 186305, July 22, 2015).
partnership property. (Villarama
Exception: When the contract involves things
vs. Guno, GR No. 197514,
belonging to the principal (Rule 3, Sec. 3)
August 6, 2018)
Exception: Those provided by law:
Minor or incompetent persons
a. Petition for receivership;
b. Petition for judicial
Minor or incompetent persons may sue or be sued
separation of property;
BUT with the assistance of his father, mother,
c. Petition for authority to be
guardian, or if none, a guardian ad litem (Rule 3,
the sole administrator of the
Sec. 5).
absolute community;
d. When a spouse, without just
cause, abandons the other

70
 or fails to comply with his or wage of an employee,
her obligations to the family and who does not
with respect to marital, own real property
parental or property with a fair market
relations (Article 101 and value of more than
128, Family Code); PHP300,000
e. Actions involving the To be entitled to the
mortgage, encumbrance, exemption herein
alienation or other disposal provided, the litigant
of a spouse’s exclusive shall execute an
property (Article 111, FC) affidavit that he and
f. Actions involving the his immediate family
property of a spouse under do not earn a gross
the regime of separation of income above
property. (Article 145, FC) mentioned, nor they
own any real property
Remedy if there is failure to implead one of with the assessed
the spouses: Amendment of the complaint. value
aforementioned,
(e) Quasi-Parties are those in whose behalf a supported by an
class or representative suit is brought. (Rule affidavit of a
3, Sec. 12) disinterested person
attesting to the truth
(f) Indigent party of the litigant’s
affidavit
Party who has no money or property sufficient Exemption from Exempt from the
and available for food, shelter and basic payment of docket payment of legal fees.
necessities for himself and his family. (Rule 3, and other lawful fees,
Sec. 21) and of transcripts of The legal fees shall be
stenographic notes a lien on any
To litigate as an indigent party, authority may be which the court may judgment rendered in
granted upon an ex parte application and order to be furnished the case favorably to
hearing. However, it may be contested at any him the indigent litigant,
time before judgment is rendered. unless the court
Amount of the docket otherwise provides
Authority to litigate as an indigent shall include an and other lawful fees
exemption: shall be a lien on any
(1) From the payment of docket fees; and, judgment rendered in
(2) From the payment of transcript of the case favorable to
stenographic notes. (Rule 3, Sec. 21) the indigent, unless
the court otherwise
Note: Cross-refer to Rule 141, Sec. 19 provides
Indigent Parties Indigent Litigants Consequence if party Any falsity in the
(Rule 3, Sec. 21) (Rule 141, Sec. 19) not actually indigent: affidavit of a litigant
One who has no One whose gross or a disinterested
money or property income and that of The proper docket party shall be
sufficient and their immediate and other lawful fees sufficient cause to
available for food, family do not exceed shall be assessed and dismiss the complaint
shelter, and basic an amount double the collected by the clerk or action or to strike
necessities monthly minimum of court. out the pleading of

71
 that party, without Exception: It becomes compulsory when
If payment is not prejudice to whatever the one involved is an
made within the time criminal liability may indispensable party. (Rule 3,
fixed by the court, have been incurred Sec. 7)
execution shall issue Exceptions 1. Class suits, where it would be
or the payment to the impractical to include all the
thereof, without Exception: names of the members of the
prejudice to such class in the action; or,
other sanctions as the 2. When the inclusion of an
court may impose indispensable party is merely a
formality.
Rule on indigent litigants Examples: • Co-owners are not
indispensable parties in case
If the applicant for exemption meets the salary one of them appoints an
and property requirements under Sec. 19 of Rule agent, as their obligation is
141, then the grant of the application is solidary.
mandatory. • If two or more persons have
appointed an agent for a
On the other hand, when the application does not common transaction or
satisfy one or both requirements, then the undertaking, they shall be
application should not be denied outright; solidarily liable to the agent
instead, the court should apply the "indigency for all the consequences of the
test" under Rule 3, Sec. 21 and use its sound agency. (Art. 1915, Civil Code)
discretion in determining the merits of the prayer
for exemption. (Sps. Algura v. City of Naga, G.R. The rule in this article applies
No. 150135, October 30, 2006) even when the appointments
were made by the principals in
(g) Alternative defendants separate acts, provided that
they are for the same
Where the plaintiff is uncertain against whom of transaction. The solidarity
several persons he is entitled to relief, he may arises from the common
join any or all of them in the alternative, interest of the principals, and
although a right to relief against one may be not from the act of
inconsistent with a right to relief against the other constituting the agency. By
(Rule 3, Sec. 13) virtue of this solidarity, the
agent can recover from any
Rule when the defendant’s name or identity principal the whole
is unknown compensation and indemnity
owing to him by the others.
He may be sued as the unknown owner, heir,
devisee, or by such other designation as the case The parties, however, may, by
may require. However, when his identity or true express agreement, negate
name is discovered, the pleading must be this solidary responsibility.
amended. (Rule 3, Sec. 14) The solidarity does not
disappear by the mere
(2) Compulsory and Permissive Joinder partition effected by the
of Parties principals after the
accomplishment of the
General The joinder of parties is agency.
Rule: permissive. (Rule 3, Sec. 6) xxx

72
 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.
(a) Compulsory Joinder
When an indispensable party (party in interest
without whom no final determination can be had
of an action) is not a party to an action, the court
shall order that he be joined as a party to the
action (Rule 3, Sec. 7)
Effect of failure to implead an
indispensable party
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 (Divinagracia
vs. Parilla et al., G.R. No. 196750, March 11,
2015). Without their presence, the judgment of
the court cannot attain real finality (Valdez-
Tallorin vs. Heirs of Tarona, G.R. No. 177429,
November 24, 2009).
Non-joinder of indispensable parties is NOT
a ground for the dismissal of an action. (Rule
3, Sec. 11)
General If any of the indispensable
Rule: parties have not been included,
the judgment in that case is null
and void not only as to those
who were excluded but even to
those who were included.
Exception: The exception to that is
discussed in the case of De
Castro vs. CA, in this case the
action is not based on the
ownership but based on the
contract of agency, it’s a
different contract that is why
the concept of co-ownership
does apply here because the
action is based on the contract
of agency. (De Castro vs. CA,
G.R. No. 141463, August 6,
2002)
Remember, another principle
that you must remember
regarding the indispensable
parties, co-owners are
indispensable parties-
defendants but not as
indispensable parties-plaintiffs,
co-owners are indispensable
party-plaintiffs, because just
one co-owner can file a case,
the presumption is such that this
co-owner files the action for and
in behalf of all the other co-
owners.
But that does not apply when
the co-owners are defendants,
they must be all impleaded
otherwise there can be no final
judgment or ever there is a
judgment the judgment is null
and void.
Remedy in case of omission of an
indispensable party
The remedy is to implead the non-party
claimed to be indispensable. 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; Lotte Phils. Co. Inc. vs. De la Cruz,
G.R. No. 166302, July 28, 2005)
73
Effect of plaintiff’s refusal, despite order of A party is misjoined A party is not joined
the court, to implead an indispensable when he is made a when he is supposed
party party to the action to be joined but is
although he should not impleaded in an
If the plaintiff refuses to implead an indispensable not be impleaded. action. (Riano, Civil
party despite the order of the court, that court (Riano, Civil Procedure (The Bar
may dismiss the complaint for the plaintiff’s Procedure (The Bar Lecture Series), Vol. I,
failure to comply with the order. (Land Bank vs. Lecture Series), Vol. I, p. 257, 2022)
Cacayuran, G.R. No. 191667, April 22, 2015) p. 257, 2022)
If there is a claim Whenever in any
Only upon unjustified failure or refusal to obey against a party pleading in which a
the order to include is the action dismissed. misjoined, the same claim is asserted, a
may be severed and necessary party is
Note: Under Rule 17, Sec. 3, failure to obey a proceeded with not joined, the
court order is a ground for dismissal of the separately. (Rule 3, pleader shall set
complaint. Sec. 11) forth his name, if
known, and shall
(b) Permissive Joinder state why he is
omitted. Should the
Persons may join as plaintiffs or may be joined as court find the reason
defendants in one complaint when the following unmeritorious, it may
requisites are present: order the inclusion
of the omitted
(1) The right to relief arose out of the same
necessary party if
transaction or series of transactions
jurisdiction over his
(connected with the same subject matter of
person may be
the suit);
obtained. (Rule 3,
(2) There is a question of law or fact common to
Sec. 9)
all the plaintiffs or defendants in the action;
and,
Note: See Compulsory
(3) Such joinder is not otherwise proscribed by
Joinder above for
the provisions of the Rules of Court on
discussion on effect of
jurisdiction and venue (Rule 3, Sec. 6;
non-joinder of
Regalado, F.D., Remedial Law Compendium,
indispensable parties
Volume 1, p. 91).
Neither misjoinder nor non-joinder of
parties is a ground for the dismissal of an
Note: There is a question of law in a given case action. Parties may be dropped or added by
when the doubt or difference arises as to what the court on motion of any party or motu
the law is on a certain state of facts; there is a proprio at any stage of the action and on such
question of fact when doubt arises as to the truth terms as are just. (Rule 3, Sec. 11)
or the falsehood of alleged facts. (Manila Bay Club
Corp. vs. CA, et. al., G.R. No. 110015, January However, even if neither is a ground for
dismissal of the action, the failure to obey
11, 1995)
the order of the court to drop or add a party
is a ground for the dismissal of the
(c) Misjoinder and Non-Joinder of complaint based on the failure of the plaintiff
Parties to comply with a court order. (Rule 17, Sec. 3)
Note: Similar with indispensable parties, non-
Misjoinder Non-joinder inclusion of a necessary party does not

74
automatically result in the dismissal of the action.
Only upon the refusal of the plaintiff to implead
the necessary party despite such order that the
court may dismiss the action. (Salazar, The
Fundamentals of Civil Procedure, p. 38, 2021)
Joinder of cause of action vs. Joinder of
parties
Joinder of causes Joinder of parties
of action
It refers to the It may be employed
procedural device when there are
whereby a party who various causes of
asserts various actions that accrue in
claims against the favor of one or more
same or several plaintiffs against one
parties, file all his or more defendants
claims against them i.e. there is plurality
in a single of parties. (Rule 3,
complaint. (Rule 2, Secs. 6, 7, 8)
Sec. 5)
Merely permissive, Indispensable parties An action where one or some of the parties may
as evidenced by the – required to be sue for the benefit of all, if the following requisites
use of the word joined either as are complied with:
“may” instead of plaintiffs or
“shall.” (Rule 2, Sec. defendants. (Rule 3,
5) Sec. 7)
Necessary party – one
who is not
indispensable but
ought to be joined
IF complete relief is to
be accorded, or for a
complete
determination or
settlement of the
action. (Rule 3, Sec.
8)
Class suit vs. Derivative suit
vs. Citizen suit vs. Individual Suit
Joinder of cause of action vs. Joinder of
claim
Joinder of causes Joinder of parties
of action
It refers to the Plaintiff may join in a
procedural device single statement of
whereby a party who claim one or more
asserts various separate small
claims against the claims against a
same or several defendant provided
parties, file all his that the total amount
claims against them claimed, exclusive of
in a single interest and costs,
complaint. (Rule 2, does not exceed One
Sec. 5) Million Pesos
(P1,000,000.00)
(Rule IV, Secs. 6, The
Rule on Small Claims,
Rules on Expedited
Procedures in the First
Level Courts)
Note: When there is a claim covered by a
summary procedure and another claim that is
covered by small claim, joinder is not allowed.
(3) Class suit
(1) The subject matter of the controversy is one
of common or general interest to many
persons;
(2) The persons are so numerous that it is
impracticable to join them all as parties;
(3) The court finds a number of them
sufficiently numerous and
representative of the class as to fully
protect the interests of all concerned; and
(4) The representative sues or defends for the
benefit of all (Rule 3, Sec. 12; Banda vs.
Ermita, G.R. No. 166620, April 20, 2010;
Juana Complex Homeowners Asso. Vs. Fil-
Estate, G.R. No. 152272, March, 5 2012)
Class Suit A class suit is filed regarding a
controversy of common or
general interest in behalf of
many persons so numerous that
it is impracticable to join all as
75
 parties, a number which the
court finds sufficiently
representative who may sue or
defend for the benefit of all
(Rule 3, Sec. 12)
It is filed by sufficient number
of parties for the benefit of all.
Derivative A derivative suit is a suit in
Suit equity that is filed by a
minority shareholder in
behalf of a corporation to
redress wrongs committed
against it, for which the
directors refuse to sue, the real
party-in-interests being the
corporation itself (Lint vs. Lim-
Yu, G.R. No. 138343, Feb. 19,
2001)
It is filed by a minority
stockholder for and in behalf
of the corporation
Citizen A citizen suit is an action filed
Suit by any Filipino citizen in
representation of others,
including minors, or generation
not yet born, to enforce rights
and obligations under
environmental laws. (Sec. 5,
Rule 2, Part II of A.M. No. 09-6-
8-SC)
It is filed by any Filipino
citizen
Individual Where a stockholder or member
suit is denied the right of inspection,
his suit would be an individual
suit because the wrong is done
to him personally and not to the
other stockholders or the
corporation (Ching vs. Subic Bay
Golf and Country Club, G.R. No.
174353, September 10, 2014)
(4) Effect of Death of a Party Litigant
Duty of counsel upon death of client
Whenever a party to a pending action dies, and
the claims not thereby extinguished, it shall be
the duty of the counsel to:
(1) inform the court within thirty (30) days after
such death of the fact thereof, and
(2) 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. (Rule 3, Sec.
16)
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.
Action of court upon notice of death
Upon receipt of notice, the court shall determine
if the claim is extinguished by such death.
Survival of actions
Action that does Action that
NOT survive survives
The injury complained All other actions -
of is personal to the the wrong complained
person; purely of affects primarily
personal actions. property and property
rights.
Property and property
rights affected are The injuries to the
incidental (Carabeo person are merely
vs. Dingco, G.R. No. incidental. (Carabeo
190823 April vs. Dingco, G.R. No.
4, 2011) 190823 April
4, 2011)
Examples: Legal Examples: recovery of
separation; action for real and personal
support; annulment of property against the
marriage estate (ejectment);
enforcement of liens
on such properties;
recovery for an injury
to person or property
by reason of tort
committed by the
76
 deceased; actions for
recovery of money,
arising from a
contract, express or
implied (Rule 3, Sec.
20)
Upon the death of a The court shall order
party, the case is the legal
dismissed. The representative of
deceased cannot be the deceased to
substituted by his appear and be
legal representative. substituted for him
within 30 days (Rule
3, Sec. 16)
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, pp. 69-70)
Substitution by heirs of the deceased
When a party to a pending action dies and the
claim is not extinguished, the Rules of Court
require a substitution of the deceased. (De la
Cruz vs. Joaquin G.R. No. 162788, July 28, 2005)
The heirs of the deceased may be allowed to be
substituted for the deceased, WITHOUT requiring
the appointment of an executor or administrator
and the court may appoint a guardian ad litem for
the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days
from notice. (Rule 3, Sec. 16)
appointment, if defrayed by the opposing party,
may be recovered as costs. (Rule 3, Sec. 16)
Substitute defendant need NOT be
summoned
The order of substitution shall be served upon the
parties substituted for the court to acquire
jurisdiction over the substitute party (Ferreria v.
Vda de Gonzales, G.R. No. L-11567, July 17,
1958)
Effect of non-substitution of a deceased
party
Non-compliance with the rule on substitution
would render the proceedings and judgment
of the trial court infirm because the court
acquires no jurisdiction over the persons of
the legal representatives or of the heirs on whom
the trial and the judgment would be binding.
(Hinog vs. Melicor, G.R. No. 140954, April 12,
2005)
Any judgment rendered against such deceased
party shall be null and void for lack of jurisdiction
over the persons of the legal representative or of
the heirs upon whom the trial and the judgment
would be binding (The Heirs of Vda. De Haberer
v. Court of Appeals, et al., G.R. Nos. L-42699 to
L-2709, May 26, 1981)
Death or separation of a public officer

When there is no legal representative The action may be continued or maintained by or

The court may order the opposing party to
appoint an executor or administrator when:
(a) The counsel for the deceased does not name
a legal representative; or,
(b) There is a representative named but he
failed to appear within the specified period
(Rule 3, Sec. 16)
Note: The executor or administrator shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
against his successor –
Requisites
(1) The public officer is a party in an action in
his official capacity;
(2) During the pendency of the action, the public
officer dies, resigns or otherwise ceases
to hold office;
(3) Within 30 days after the successor takes
office or such time as may be granted by the
court, it is satisfactorily shown by any party
that there is a substantial need for
continuing or maintaining the action

77
 and that the successor adopts or continues
or threatens to adopt or continue the action
of his predecessor;
(4) Before substitution, proper notice must be
given to the officer to be affected and he
must be accorded an opportunity to be
heard. (Rule 3, Sec. 17)
Action on contractual money claims
Shall not be dismissed but shall instead be
allowed to continue until entry of final judgment
when –
Requisites
(1) The action is for recovery of money;
(2) The claim arose from express or implied
contract; and
(3) The defendant dies BEFORE entry of final
judgment in the court in which the action
was pending at the time of such death. (Rule
3, Sec. 20)
A favorable judgment obtained by the plaintiff
shall be enforced in a manner especially provided
for prosecuting claims against the estate of a
deceased person (Note: Rule 86 on Claims
Against the Estate applies, not Rule 39 on
Execution, Satisfaction and Effects of
Judgments).
Effect of transfer of interest (transfer
pendente lite)
General Rule: In case of any transfer of interest,
the action may be continued by or against the
original party.
Exception: When the court, upon motion,
directs the person to whom the interest is
transferred to be substituted in the action or
joined with the original party (Rule 3, Sec. 19)
E. VENUE (RULE 4)
Venue is simply the geographical location/place
where the case shall be instituted, heard, and
tried. (Tan, Civil Procedure: A Guide for the Bench
and the Bar, Book I, 2020, p. 419)
General Rule: Sec. 4 provides that the venue of
an action is provided for by a law or by the rule.
First Exception: If there is no rule or law on
venue you look at par. b, agreement of the
parties, so agreement of the parties as to venue
before the filing of the case is the proper venue
of the action.
General rule under the first exception:
Venue stipulations in a contract do not, as a
rule, supersede the general rule set forth in
Rule 4 of the Revised Rules of Court in the
absence of qualifying or restrictive words. The
settled rule on stipulations regarding venue,
as held by this Court in the vintage case of
Philippine Banking Corporation v. Tensuan,
230 SCRA 413 (1994), is that while they are
considered valid and enforceable, venue
stipulations in a contract do not, as a rule,
supersede the general rule set forth in Rule 4
of the Revised Rules of Court in the absence
of qualifying or restrictive words.
They should be considered merely as an
agreement or additional forum, not as limiting
venue to the specified place. They are not
exclusive but, rather permissive. 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 International Asia vs. Schonfeld,
G.R. No. 166920, February 19, 2007)
Exception under the first exception:
When what is being assailed is the validity of
the contract itself then the agreement of the
parties as to the venue does not apply.
(Briones v. CA, G.R. No. 204444, January 14,
2015)
Second Exception: If there is no law, no rule,
there is no agreement that is the time that you
apply Sec. 1 and 2, to distinguish if it is real or
personal, if it is personal, rights against the
78
plaintiff or any of the plaintiffs of that of the
defendant or any of the defendants, at the option
of the plaintiff, if it is real action where the
property is located.
Nature and purpose of venue in civil actions
Savings Bank, Inc., vs. Sps. Yujuico, G.R. No.
175796, July 22, 2015).
Venue becomes jurisdictional only in criminal
cases (Heirs of Lopez vs. De Castro, G.R. No.
112905, February 3, 2000)

Venue is intended to accord convenience to the Venue in civil Venue in criminal

parties and does not equate to the jurisdiction of actions actions
the court. (Dolot vs. Paje, G.R. 199199, August Procedural only and Jurisdictional
27, 2013) is for the purpose of
convenience of the
Jurisdiction vs. Venue parties
Conferred by Rule 4 Conferred by
Jurisdiction Venue of the Rules of Court, provisions of law
The authority of a The place where the and may be agreed
court to exercise case is to be heard or upon by the parties
judicial power, to hear tried; the place where Improper venue is Improper venue is a
and determine a case judicial power should merely a procedural jurisdictional
be exercised infirmity and can be impediment and is a
A matter of A matter of raised as an ground for a motion to
substantive law procedural law affirmative defense quash the complaint or
in the answer under information on the
Establishes a relation Establishes a relation
Rule 8, Sec. 12. ground of lack of
between the court between plaintiff and
jurisdiction over the
and the subject defendant, or
offense charged
matter petitioner and
respondent Issue of venue can Venue in criminal cases
be waived for failure cannot be waived since
Fixed by law and May be changed by
to object and raise it it is jurisdictional since
cannot be subject of the written
as an affirmative and conferred by the
agreement of the agreement of the
defense in the penal statute
parties parties
answer
Ground for motu Not a ground for a
In case of denial of In case of denial of the
proprio dismissal (if motu proprio
the affirmative motion to quash on the
what is lacking is dismissal except in
defenses in the ground of lack of
jurisdiction over the summary procedure
answer, it shall not jurisdiction over the
subject matter)
be the subject of a offense charged the
Cannot be waived May be waived (in civil
motion for remedy is to proceed
cases)
reconsideration or with the arraignment.
Note: Venue in
petition for certiorari,
criminal cases is
prohibition or
jurisdictional
mandamus, but may
be among the
Venue in civil actions vs. in criminal actions
matters to be raised
on appeal after a
In civil proceedings, venue is procedural, not
judgment on the
jurisdictional, and may be waived by the
merits (Sec. 12, Rule
defendant if not seasonably raised either in a
8 of the 2019
motion to dismiss or in the answer (BPI Family
Amendments to the

79
 1997 Rules on Civil
Procedure 1 (A.M. c) In case of a non-resident defendant, where
No. 19-10-20) he may be found. (Rule 4, Sec. 2)

Venue of Real Actions The plaintiff or the defendant must be residents

of the place where the action has been instituted
Real actions are actions affecting title to or at the time the action is commenced (Ang
possession of a real property, or any interest vs. Sps. Ang, G.R. No. 186993, August 22, 2012)
therein.
Definition of residence
Venue of real actions is local, hence these actions
The residence of a person is his personal,
shall be commenced and tried in the proper court actual or physical habitation or his actual
which has jurisdiction over the area wherein the residence or place of abode, which may not
real property involved, or a portion thereof, necessarily be his legal residence or domicile
is situated. (Rule 4, Sec. 1) provided he resides therein with continuity and
consistency (Boleyley vs. Villanueva, G.R. No.
Forcible entry and detainer actions shall be 128734, September 14, 1999)
commenced and tried in the municipal court of
the municipality or city wherein the real property A corporation cannot be allowed to file personal
involved, or a portion thereof, is situated (Rule 4, actions in a place other than its principal place
Sec. 1). These actions cannot be commenced in of business unless such place is also the
the RTC, regardless of the assessed value of the residence of a co-plaintiff or defendant. (Davao
property involved, since the MTC is conferred Light vs. CA, G.R. No. 111685, August 20, 2001)
with exclusive original jurisdiction over such
actions. (Salazar, The Fundamentals of Civil Venue of Actions Against Non-Residents
Procedure, p. 98, 2021)
Non-
It is a settled doctrine that when a contract of Non-Resident Resident
Type of
mortgage covers various parcels of land situated FOUND in the NOT found
Action
in different provinces, the RTC of any of said Philippines in the
provinces has jurisdiction to take cognizance of Philippines
an action for foreclosure of said mortgage, and Personal Plaintiff’s If action No.
the judgment therein rendered can be executed action residence or 3, refer to
in the other provinces where the rest of the real where below.
estate is situated. (El Hogar Filipino vs. Seva, G.R. defendant may
No. 36627, November 19, 1932) be found (Rule
4, Sec. 2)
Venue of Personal Actions Real action Where property If action No.
is situated 3, refer to
Venue of personal actions (all other actions apart (Rule 4, Sec. 1) below.
from real action) is transitory, and hence may Actions Refer to above Affects
be commenced and tried, at the election of the affecting personal
plaintiff: personal status:
a) Where the plaintiff or any of the principal status of plaintiff’s
plaintiffs resides, or plaintiff or residence,
property of
b) Where the defendant or any of the principal defendant Affects
defendants resides, or property of

80
 in the defendant: i. Quo ii. Petition for iii. Civil and
Philippines where warranto a continuing criminal
property or proceedin writ of action for
any portion g mandamus, damages
thereof is commenc and (Rule 8, in written
situated (Rule ed by the Sec. 2, defamatio
4, Sec. 3) Solicitor Rules of n. (Art.
(Riguera, Primer-Reviewer on Remedial Law, Vol. General, Procedure 360,
I Civil Procedure, p. 195, 2022; (M. De Leon, (Rule 66, for Revised
Remedial Law Reviewer-Primer, 2021 Edition, p. Sec. 7) Environmen Penal
tal Cases) Code)
73)
The action
may be The petition
Note that for
Venue for small claims cases brought in shall be filed written
the with the
defamations,
The regular rules on venue shall apply. Supreme Regional Trial the default
However, if the plaintiff is engaged in the Court, the Court venue would
business of lending, banking and similar Court of exercising be the place
activities, and has a branch within the Appeals, or jurisdiction where the
municipality or city where the defendant in a over the
libelous
Regional territory where article is first
resides or is holding business, the
Trial Court the actionable published or
Statement of Claim/s shall be filed in the in the City of neglect or
where any of
court of the city or municipality where the Manila. omission the offended
defendant resides or is holding business. If occurred or
parties reside
there are two (2) or more defendants, it shall be with the Court In case that
filed in the court of the city or municipality where of Appeals or the offended
the Supreme party is a
any of them resides or is holding business, at the
Court. public officer,
option of the plaintiff. (Sec. 5, Rule IV, A.M. 08- the proper
8-7-SC, effective April 11, 2022) venue would
be either
Corporation as Party where he
If the party is a corporation, its residencefor holds office
purposes of determining the proper venue of a at the time of
civil action is the province or city where its the
principal place of business is situated as recorded commission
of the crime,
in its Articles of Incorporation. (Salazar, The
or the place
Fundamentals of Civil Procedure, p. 99, 2021; where the
Hygienic Packaging Corp. vs. Nutri-Asia, Inc., libelous
G.R. No. 201302, January 23, 2019) article is first
published.
The rules on venue do not apply under the (b) Parties have validly agreed in writing
following circumstances. before the filing of an action on the
exclusive venue thereof. (Rule 4, Sec. 4)
(a) Cases where a specific rule or law provides
otherwise (Rule 4, Sec. 4); Effects of Stipulations on Venue
The parties may stipulate on the venue as long as
the agreement is:

81
(1) In writing,
(2) Made before the filing of the action, and
(3) Exclusive as to the venue (Rule 4, Sec.
4[b])
Types of stipulations on venue
(a) Restrictive: suit may be filed only in the
place agreed upon
(b) Permissive: parties may file their suit not
only in the place agreed upon but also in the
places fixed by the rules. (Planters Dev’t.
Bank vs. Ramos, G.R. No. 228617,
September 20, 2017).
Absence of qualifying or restrictive words
In the absence of qualifying or restrictive words
(e.g. “only/solely/exclusively in such court”),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the venue
provided for in the rules (Polytrade Corp. vs.
Blanco, G.R. No. L-27033, October 31, 1969)
Venue stipulations in a contract do not, as a rule,
supersede the general rule set forth in Rule 4 of
the Revised Rules of Court in the absence of
qualifying or restrictive words. They should be
considered merely as an agreement or additional
forum, not as limiting venue to the specified
place. They are not exclusive but, rather
permissive. (Pacific Consultants International
Asia vs. Schonfeld, G.R. No. 166920, February 19,
2007)
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.
(Ibid.)
Example of Words with Restrictive
Meaning
(a) Only;
(b) Solely;
(c) Exclusively in this court;
(d) In no other court save -;
(e) Particularly;
(f) Nowhere else but except;
(g) Words of similar import. (Ibid.)
Venue stipulation in relation to complaint
for unlawful detainer
Complaint for unlawful detainer may be filed
outside the municipality or city where the real
property is located, pursuant to a venue
stipulation in a contract.
While Section 1, Rule 4 of the Rules of Court
states that ejectment actions shall be filed in "the
municipal trial court of the municipality or city
wherein the real property involved x x x is
situated," Section 4 of the same Rule provides
that the rule shall NOT apply "where the parties
have validly agreed in writing before the filing of
the action on the exclusive venue thereof."
(Union Bank of the Philippines vs. Maunlad
Homes Inc., G.R. No. 190071, August 15, 2012)
When venue stipulation may be
disregarded
The court may declare agreements on venue as
contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to
file suit in the place designated by the Rules. The
court shall take into consideration the economic
conditions of the parties, the practical need to
avoid numerous suits filed against the defendant
in various parts of the country and the peculiar
circumstances of the case (Hoechst Philippines
vs. Torres, G.R. No. L- 44351, May 18, 1978)
A complaint directly assailing the validity of
the written instrument itself should not be
bound by the exclusive venue stipulation
contained therein and should be filed in
accordance with the general rules on
venue. (Briones vs. CA and Cash Asia, G.R. No.
204444, January 14, 2015)
Improper Venue
82
The prevailing rule on objections to improper F. PLEADINGS (RULE 6)
venue is that the same must be raised at the
earliest opportunity, as in an answer or a Pleadings are the written statements of the
motion to dismiss; otherwise, it is deemed respective claims and defenses of the parties
waived (Ley Construction and Development submitted to the court for appropriate judgment
Corporation vs. Sedano, G.R. No. 222711, August (Rule 6, Sec. 1).
23, 2017).
Pleadings vs. Motions
Dismissal based on improper venue
Pleadings Motions
Under the Amended Rules, improper venue is no Purpose Purpose is to Purpose is to
longer an available ground for a motion to submit claims apply for relief
or defenses for other than by a
dismiss. However, improper venue is one of those
appropriate pleading/ an
that may be set as an affirmative defense in judgment order not
the answer. The failure to raise the affirmative included in the
defense in the answer will constitute a waiver of judgment
such. (Rule 8, Sec. 12) Initiatory Yes – may be No – cannot be
initiatory initiatory as
Since venue is not a matter of substantive law but they are always
made in a case
is primarily for the convenience of the parties, it
already filed in
would be up for the defendant to question the court
venue. If he does not raise the issue of venue, When Always filed May be filed
the Court has no authority to motu proprio filed before even after
dismiss a case for improper venue; the venue will judgment judgment
be deemed proper if the defendant does not Form Must be written May be oral
object. when made in
open court or
in the course of
Note: The court may make a motu proprio a hearing or
dismissal for improper venue, inter alia, in actions trial
covered by the Rules on Summary Procedure
(Sec. 4), Rule of Procedure for Small Claims cases Pleadings allowed by the Rules of Court
(Sec. 11), and in ejectment cases. (Rule 70, Sec. (a) Complaint
5) (b) Answer
(c) Counterclaim
Jurisdiction and venue requirements in Small (d) Cross-claim
Claims action shall be the same as in other civil (e) Third (fourth, fifth, etc.) party complaint
actions provided in the Rules of Civil Procedure. (f) Complaint-in-intervention
After the court determines that the case falls (g) Reply (only if the pleading replied to contains
under this Rule, it may, from an examination of an actionable document)
the allegations of the Statement of Claim and a. Rejoinder (if based solely on an actionable
such evidence attached thereto, by itself, dismiss document attached to the reply)
the case outright of any of the grounds apparent b. Counter-counterclaim
from the Claim for the dismissal of a civil action. c. Counter-cross-claim
(A.M. No. 08-8-7-SC) (Rule 6, Secs. 2, 10)

83
Note: For summary table of kinds of pleadings, against original plaintiff: Ordinarily not allowed as
with illustration and examples, jump to page 94. the original plaintiff is not an opposing party as to
the 3rd party defendant. However, if the
Pleadings each party may file counterclaim is raised by virtue of the original
plaintiff’s claim against the 3rd party plaintiff
Parties Pleadings (original defendant), the counterclaim may be
Plaintiff a. Complaint allowed. The 3rd party defendant will merely raise
b. Reply* defenses that the 3rd party plaintiff (original
c. Counter-counterclaim, defendant) may have against the original plaintiff.
against:
(Rule 6, Sec. 13)
o Defendant; or
o 3rd (4th, etc.) party
defendant (1) KINDS (RULE 6)
d. Answer to permissive
counterclaim (a) Complaint
e. Answer to complaint- Complaint is a pleading alleging the plaintiff’s or
in-intervention claiming party’s cause or causes of action. The
Defendant/ Against the plaintiff: names and residences of the plaintiff and
Co- a. Answer defendant must be stated in the complaint (Rule
defendant b. Rejoinder*
6, Sec. 3).
c. Counterclaim

Against co-defendant: Note: Counterclaims, cross-claims, third-party

a. Cross-claim complaints, and complaints-in-intervention are
b. Counter-cross-claim kinds of complaints. (Rule 6, Sec. 2)
c. Answer
d. Reply*
Purpose of a Complaint
e. Rejoinder*

Against 3rd party: (1) To inform the defendant clearly and

a. 3rd party complaint
b. Reply*
3rd (4th, etc.) a. Answer to the 3rd party
Party complaint
Defendant b. Counterclaim against:
o 3rd party plaintiff;
o original plaintiff
(Rule 6, Sec. 13)
c. Rejoinder
d. 4th (5th, etc.) party
complaint
Intervenor a. Complaint-in-
intervention;
b. Answer-in-intervention
(Rule 19, Sec. 3)
*if based on actionable document
Note: Counterclaim filed by 3rd party defendant
definitely of the claims made against him so
that he may be prepared to meet the issues
at the trial;
(2) To inform the defendant of all material facts
on which the plaintiff relies to support his or
her demand;
(3) To state the theory of a cause of action
which forms the basis of the plaintiff's claim
of liability (Tantuico, Jr. vs. Republic, G. R.
No. 89114, December 2, 1991)
(b) Answer
An answer is a pleading in which a defending
party sets forth his or her defenses. (Rule 6, Sec.
4) It may be an answer to a complaint, a
counterclaim or a crossclaim. There is no answer
to a reply but there could be an answer to a third-
party complaint or complaint-in-intervention.

84
Since the answer merely responds to a claim, an
answer is called a "responsive" pleading. (Riano,
Civil Procedure (The Bar Lecture Series), Vol. I, p.
336, 2022)
Defenses in the answer
The defenses contained in the answer may either
be negative or affirmative. (Rule 6, Sec. 5)
(a) Negative Defenses
A negative defense is the specific denial of the
material fact or facts alleged in the pleading of
the claimant essential to his or her cause or
causes of action. (Rule 6, Sec. 5)
A general denial is considered as an admission.
(Riano, Civil Procedure (The Bar Lecture Series),
Vol. I, p. 336, 2022)
Further discussion on Specific Denials under Rule
8 – Manner of Making Allegations
Negative pregnant
A 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. It is 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, has been held that the qualifying
circumstances alone are denied while the fact
itself is admitted. (Republic vs. Sandiganbayan,
G.R. No. 152154, July 15, 2003)
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. Dabon’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 with Sonia. (Valdez
vs. Dabon, A.C. No. 7353, November 16, 2015)
A negative pregnant is a denial which seems to
deny only a qualification of the allegation, and not
the allegation itself, thereby implying the
affirmative opposite. (M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 78)
Example: “I deny that I owe the plaintiff
P500,000.00” might mean that the person
making the statement owes the plaintiff an
amount of money, but not P500,00.00
(b) Affirmative Defenses
An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the
material allegations in the pleading of the
claimant, would nevertheless prevent or bar
recovery by him or her. (Rule 6, Sec. 5)
The affirmative defenses include:
(SPIDERS-OFF)
(1) Statute of limitations;
(2) Payment;
(3) Illegality;
(4) Discharge in bankruptcy;
(5) Estoppel;
(6) Release;
(7) Statute of frauds;
(8) Any Other matter by way of confession and
avoidance;
(9) Former recovery; and
(10) Fraud. (Rule 6, Sec. 5[b])
Affirmative defenses may also include
grounds for the dismissal of a complaint,
85
specifically:
(1) that the court has no jurisdiction over the
subject matter;
(2) that there is another action pending between
the same parties for the same cause (litis
pendentia); or
(3) that the action is barred by a prior judgment
(res judicata) (Rule 6, Sec. 5[b]).
Other affirmative defenses enumerated
under Section 12(a) of Rule 8:
(1) The court has no jurisdiction over the person
of the defending party;
(2) Venue is improperly laid;
(3) The plaintiff has no legal capacity to sue;
(4) The pleading asserting the claim states no
cause of action;
(5) A condition precedent for filing the claim has
not been complied with.
Failure to raise affirmative defenses at the earliest
opportunity shall constitute a waiver thereof
(Rule 8, Section 12[b])
Further discussion on Affirmative Defenses under
Rule 8 – Manner of Making Allegations
(c) Counterclaim
A counterclaim is any claim, which a defending
party may have against an opposing party. (Rule
6, Sec. 6)
Purpose; Nature
They are generally allowed in order to avoid a
multiplicity of suits and to facilitate the disposition
of the whole controversy in a single action, such
that the defendant's demand may be adjudged by
a counterclaim rather than by an independent
suit. (Lafarge Cement, Inc. vs. Continental
Cement Corp., G.R. No. 155173, November 23,
2004)
Although a counterclaim may be alleged in the
answer, it is NOT part of the answer; it is in itself
a distinct and independent cause of action and
when filed, there are two simultaneous actions
between the same parties (Padilla vs. Globe
Asiatique Realty Holdings Corporation, G.R. No.
207376, August 6, 2014). Thus, there are two
complaints: 1) the one filed by the plaintiff by way
of an original complaint and 2) one filed by the
defendant by way of a counterclaim. (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 362,
2022)
A counterclaim may be COMPULSORY or
PERMISSIVE.
(1) Compulsory Counterclaim
Definition (ReCoNo-JuEx)
• It is one which, being cognizable by the
Regular courts of justice,
• arises out of or is Connected with the
transaction or occurrence which is the
subject matter of the opposing party’s
claim, and
• does Not require for its adjudication the
presence of third parties over whom the
court cannot acquire jurisdiction.
• Such a counterclaim must be within the
Jurisdiction of the court both as to the
amount and the nature EXCEPT that in an
original action before the RTC, the
counterclaim may be considered
compulsory regardless of the amount.
(Rule 6, Sec. 7)
• It is already in Existence at the time that
the defending party files his or her
answer (Rule 11, Sec. 8)
A compulsory counterclaim not raised in the
same action is barred, unless otherwise
allowed by the Rules. (Rule 6, Sec. 7)
“Cognizable by regular courts of
justice”
Where the counterclaim involves a claim
under the Labor Code, or is administrative in
nature, it is not considered as compulsory
86
since it is not cognizable by the regular
courts. However, if the counterclaim
constitutes a certain sum of money by way of
damages, the same may be considered as
compulsory regardless of the amount, if the
action is filed before the RTC. (Salazar, The
Fundamentals of Civil Procedure, p. 55, 2021)
“Within the jurisdiction of the court
both as to the amount and the nature”
This means that in an original action before
the RTC, the amount of the compulsory
counterclaim need not be under RTC
jurisdiction.
• If a counterclaim is filed in the MTC in
excess of its jurisdictional limits, the
excess is considered waived. (Agustin vs.
Bacalan, G.R. No. L-46000, March 18,
1985)
How compulsory counterclaim may be
raised
(a) By including it in the Answer
A compulsory counterclaim or a
crossclaim that a defending party has at
the time he or she files his or her answer
shall be contained therein. (Rule 11, Sec.
8)
(b) By filing after the Answer
• Omitted Compulsory Counterclaim
GR: If a counterclaim already existed at
the time of the filing of the answer and
the defendant fails to raise it, it shall
generally be barred. (Rule 6, Sec. 7)
EXCEPTION: A counterclaim by
amendment before judgment, when the
counterclaim was not set up due to
oversight, inadvertence, or excusable
neglect. (Rule 11, Sec. 10)
• Compulsory Counterclaim arising
after Answer
A counterclaim, which either matured
or was acquired by a party after serving
his or her answer may, with permission
of the court, be presented as a
counterclaim by supplemental pleading
before judgment. (Rule 11, Sec. 9)
Motion to Dismiss and Compulsory
Counterclaim are incompatible remedies
Filing of a motion to dismiss and setting up a
compulsory counterclaim are incompatible
remedies. If defendant files a motion to dismiss,
he will lose his counterclaim. But if he opts to set
up his counterclaim, he may still plead his ground
for dismissal as an affirmative defense in his
answer. (Financial Building Corp. vs. Forbes Park
Association, G.R. No. 133119, August 17, 2000)
(2) Permissive Counterclaim
A counterclaim is permissive if it does not arise
out of or is not necessarily connected with the
subject matter of the opposing party’s claim. It is
essentially an independent claim that may be filed
separately in another case. (Alba vs. Malapajo,
G.R. No. 198752, January 13, 2016)
Tests to Determine Whether a
Counterclaim is Compulsory or Permissive
A positive answer to ALL four of the following
questions would indicate that the counterclaim is
compulsory – (LIRE)
(1) Are the Issues of fact and law raised by the
claim and counterclaim largely the same?
(2) Would Res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
(3) Will substantially the same Evidence support
or refute the plaintiff's claim as well as the
counterclaim?
(4) Is there any Logical relation between the
claim and counterclaim? (GSIS vs. Heirs of
87
 Caballero, G.R. No. 158090, October 4, file action issued by the
2010) Lupong Tagapamayapa
Need not be Must be answered
Compelling Test of Compulsoriness answered; failure by the party against
The "compelling test of compulsoriness" to answer a whom it is interposed,
characterizes a counterclaim as compulsory if compulsory otherwise he may be
counterclaim is not a declared in default as
there should exist a "logical relationship" between
cause for a default to the counterclaim
the main claim and the counterclaim. There exists declaration
such a relationship when conducting separate NOT required to pay Required to pay
trials of the respective claims of the parties would docket fees docket fees
entail substantial duplication of time and effort by Filing fees NOT Filing fees needed as
the parties and the court; when the multiple needed as it is it is a different action,
claims involve the same factual and legal issues; currently suspended then it is necessary to
or when the claims are offshoots of the same pay in order for the
court to acquire
basic controversy between the parties (Lafarge
jurisdiction.
Cement Corp. vs. Continental Cement Corp, G.R.
Allowed under the NOT allowed under the
No. 155173, November 23, 2004) Rule on Summary Rule on Summary
Procedure Procedure
Compulsory counterclaim vs. Permissive (Tan, Civil Procedure: A Guide for the Bench and
Counterclaim the Bar, Book I, 2020, pp. 460-461, 467)
Compulsory Permissive
Counterclaim Counterclaim (3) Effect on the counterclaim when
Principle of Principle of set-off; complaint is dismissed
recoupment; arises does not arise out of
out of or is connected and is not connected The dismissal of the complaint does not
with the transaction with the transaction or necessarily carry with it the dismissal of the
or occurrence occurrence constituting
counterclaim, compulsory or otherwise. The
constituting the the subject matter of
subject matter of the the opposing party's dismissal of the complaint is without prejudice to
opposing party's claim the right of the defendants to prosecute the
claim counterclaim. (Lim Teck Chuan vs. Leopolda
A compulsory May be set up as an Cecilio, G.R. No. 155701, March 11, 2015,
counterclaim is independent action and reiterating Pinga vs. Santiago, G.R. No. 170354,
barred if not set up will NOT be barred if June 30, 2006)
in the answer (or in not contained in the
the amended answer to the
answer), unless complaint. (a) When the plaintiff himself files a motion
otherwise allowed by to dismiss his or her complaint after the
the Rules defendant has pleaded his or her
answer with a counterclaim
Not an initiatory Initiatory pleading
pleading
Said certifications are Should be If the court grants the said motion to dismiss,
NOT required accompanied by a the dismissal shall be limited to the
because it is not certification against complaint. The dismissal shall be without
initiatory in character forum shopping and, prejudice to the right of the defendant to
whenever required by prosecute his or her counterclaim in a
law, also a certificate to

88
 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).
(b) When the complaint is dismissed
through the fault of the plaintiff and at
a time when a counterclaim has already
been set up
The dismissal is without prejudice to the right
of the defendant to prosecute his or her
counterclaim in the same or separate action.
(Rule 17, Sec. 3)
Further discussion under Rule 17 - Dismissal
of Actions
(d) Cross-claims
A cross-claim is any claim by one party against
a co-party arising out of the transaction or
occurrence that is the subject matter of either:
(a) the original action, or
(b) a counterclaim therein
Such cross-claim 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
liable for the claim which the claimant seeks to
recover from the cross-claimant. (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 376,
2022)
Note: The Rules simply refer to a “party” against
a “co-party”, hence a plaintiff, by reason of the
counterclaim filed by the defendant, may file a
cross-claim against his or her co-plaintiff.
Effect of failure to file cross-claim
General Rule: Existing cross-claim is barred if
not set-up in the answer; a cross-claim that a
party has at the time the answer is filed shall be
contained in the answer. (Rule 11, Sec.8)
Exceptions:
(a) Omitted cross-claim: when the cross-
claim was not set up due to oversight,
inadvertence, or excusable neglect, cross-
claim may still be set-up by amendment
before judgment (Rule 11, Sec. 10);
(b) Cross-claim arising after answer: when
the cross-claim either matures or may be
acquired by a party after service of the
answer – cross-claim may, with permission
of the court, be presented as a cross-claim
by supplemental pleading before judgment.
(Rule 11, Sec. 9);
(c) When it is outside the jurisdiction of the
court;
(d) When the court cannot acquire jurisdiction
over third parties whose presence is
necessary for the adjudication of the
crossclaim (Regalado. Vol. 1. 8th ed. p. 147)
No cross-claim for the first time on appeal
Since under the Rules, a cross-claim not set up
shall be barred. Thus, a cross-claim cannot be set
up for the first time on appeal (Loadmasters
Customs Services vs. Glodel Brokerage Corp.,
G.R. No. 179446, January 10, 2011)
Effect on the cross-claim when complaint is
dismissed
A cross-claim which is purely defensive is also
dismissed upon the dismissal of the complaint.
However, the dismissal of the complaint does not
carry with it the dismissal of a cross-claim seeking
an affirmative relief. (Torres vs. CA, G.R. No. L-
25889, January 17, 1973)
When a cross-claim is proper
(1) It arises out of the subject matter of the
89
 complaint.
(2) It is filed against a co-party.
(3) The cross-claimant stands to be prejudiced
by the filing of the action against him
(Londres vs. CA, G.R. No. 136427, December
17, 2002)
Improper cross-claim
(1) Where the cross-claim is improperly allowed,
the remedy is certiorari (Malinao vs. Luzon
Surety, G.R. No. L-16082, February 29,
1964);
(2) The dismissal of a cross-claim is
unappealable when the order dismissing the
complaint becomes final and executory
(Ruiz, Jr. vs. CA, G.R. No. 101566, August
17, 1992);
(3) A cross-claim is not allowed after declaration
of default of cross-claimant. To allow the
cross-claim to remain would be tantamount
to setting aside the order of default the
cross-claimant, who had been previously
declared default, would reobtain a standing
in court as party litigant (Tan vs. Dimayuga,
G.R. No. L-15241, July 31, 1962).
Counter-counterclaims and counter-cross-
claims
A counter-counter claim is filed when there is a
claim against the original counterclaimant.
A counter-cross-claim is filed against an original
cross-claimant (Rule 6, Sec. 9)
(e) Third (fourth, etc.) party complaint
A third (fourth, etc.) party complaint is a claim
that a defending party may, with leave of court,
file against a person not a party to the action who
is called the third-party defendant, for
Contribution, Indemnity, Subrogation, or any
Other relief (CISO), in respect of his or her
opponent’s claim. (Rule 6, Sec. 11).
Requisites
(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 plaintiff's claim against the original
defendant;
(4) The defendant is attempting to transfer to
the third-party defendant the liability
asserted against him by the original plaintiff
(Philtranco Service Enterprises, Inc. vs.
Paras, G.R. No. 161909, April 25, 2012), and
(5) The court grants leave of court for the filing
of the same (Rule 6, Sec. 11)
Leave of Court
Leave of court is necessary in order to obviate
delay in the resolution of the complaint, such as
when the third-party defendant cannot be
located, or when unnecessary issues may be
introduced, or when a new and separate
controversy is introduced. (M. De Leon, Remedial
Law Reviewer-Primer, 2021 Edition, p. 86)
Tests to determine whether the third-party
complaint 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 plaintiff’s claim against the
original defendant; and
(3) Whether the third-party defendant may
assert any defenses which the third-party
plaintiff has or may have to the plaintiff’s
claim (Asian Construction & Dev’t. Corp. vs.
CA, G.R. No. 160242, May 17, 2005)
When the third (fourth, etc.) party
complaint shall be denied admission
90
The third (fourth, etc.) party complaint shall be Crossclaim vs. Counterclaim vs.
denied admission, and the court shall require the Third-party Complaint
defendant to institute a separate action:
Third-
Cross-claim Counterclaim party
(1) The third (fourth, etc.) party defendant
Complaint
cannot be located within 30 calendar days
Claim against Claim against Claim
from the grant of leave of court
a co-party an opposing against a
(2) Matters extraneous to the issue in the
party person not
principal case are raised
a party to
(3) The effect would be to introduce a new and
the action
separate controversy into the action. (Rule
6, Sec. 11) Must arise May or may Similar to a
from the not arise out cross-claim
transaction of the subject in that the
Note: Summons on third (fourth, etc.) party
or matter of the third-party
defendant must be served for the court to obtain occurrence complaint. plaintiff
jurisdiction over his or her person, since he/she is that is the It may be seeks to
not an original party. subject compulsory or recover from
matter of the permissive. another
Bringing new parties original person some
complaint or relief in
counterclaim. respect to
When the presence of parties other than those to
the opposing
the original action is required for the granting of party’s
complete relief in the determination of a claim.
counterclaim or cross-claim, the court shall order Leave of Leave of court Leave of
them to be brought in as defendants, if court NOT NOT required. court
jurisdiction over them can be obtained. (Rule 6, required REQUIRED
Sec. 12)
(f) Complaint-in-intervention
If one or more of the defendants in a
A complaint-in-intervention is a pleading filed for
counterclaim or crossclaim is already a party to
the purpose of asserting a claim against either or
the action, then the other necessary parties may
all of the original parties (Rule 19, Sec. 3)
be brought in under the rules on bringing in new
parties.
Answer-in-intervention is filed by an intervenor if
he unites with the defending party in resisting a
Jurisdiction over third-party complaint
claim against the latter (Rule 19, Sec. 4).
Where the trial court has jurisdiction over the
Note: Intervention is a remedy by which a third
main case, it also has jurisdiction over the third
party, not originally impleaded in a proceeding,
party complaint; regardless of the amount
becomes a litigant therein to enable him to
involved as a third party complaint is merely
protect or preserve a right or interest which may
auxiliary to and is a continuation of the main
be affected by such proceeding. (First Philippine
action. (Republic vs. Central Surety, G.R. No. L-
Holdings Corporation vs. Sandiganbayan, G.R.
27802, October, 26, 1968)
No. 88345 February 1, 1996)

91

Further discussion under Rule 19: Intervention
(g) Reply
Reply is the pleading-response of the plaintiff to
the defendant’s answer, the office or function of
which is to deny, or allege facts in denial or
avoidance of new matters alleged in, or relating
to actionable documents attached to an
answer. (Rule 6, Sec. 10)
The plaintiff may file a reply ONLY if the
defending party attaches an actionable document
to his or her answer. (Rule 6, Sec. 10)
Note: An "actionable document" is a written
instrument or document upon which one’s cause
of action or defense is based. (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 318,
2022)
Interposing claims arising from new
matters
All new matters alleged in the answer shall be
deemed controverted.
If the plaintiff wishes to interpose any claims
arising out of said matters, such claims shall be
set forth on the amended or supplemental
complaint. (Rule 6, Sec. 10)
(1) The amended complaint must be with leave
of court (Rule 10, Sec. 3)
(2) The supplemental complaint is allowed only
if it pertains to transactions, occurrences, or
events which have happened since the date
of the complaint (Rule 10, Sec. 6)
When reply is necessary
If the defending party attaches an actionable
document to his answer and the plaintiff wishes
to contest the genuineness and due
execution of the actionable document, he
should file a reply thereto. Such a reply must be
verified in accordance with Rule 8, Sec. 8.
Otherwise the genuineness and due execution of
the actionable document are deemed admitted by
the plaintiff. (Riguera, Primer-Reviewer on
Remedial Law, Vol. I Civil Procedure, p. 256,
2022).
(h) Rejoinder
A rejoinder is the defendant’s response to the
plaintiff’s reply.
If an actionable document is attached to the
reply, the defendant may file a rejoinder if the
same is based solely on an actionable document
(Rule 6, Sec. 10).
Note: Two requirements: 1) an actionable
document was attached to the reply; 2) rejoinder
is limited to such actionable document.
Pleadings allowed under the Revised Rules
on Summary Procedure
The only pleadings allowed to be filed are:
(1) Complaint
(2) Compulsory Counterclaim
(3) Cross-claims pleaded in the answer, and
(4) Reply
All pleadings shall be verified (Revised Rules on
Summary Procedure, Sec. 1, A.M. No. 08-8-7-SC,
as amended, effective April 11, 2022)
Note: Sec. 8 of the Rules on Summary Procedure,
as amended by A.M. No. 08-8-7-SC, now provides
that the plaintiff may file a reply to a counterclaim
only when an actionable document is attached to
the answer. The reply shall be filed within ten
(10) calendar days from receipt of the answer. All
92
new matters alleged in the answer shall be Permissive counterclaim
deemed controverted.
Counterclaim against the plaintiff that does not
Pleadings allowed under the Revised Rules arise out of the same transaction or occurrence,
on Small Claims Cases: provided that the amount and nature thereof are
within the coverage of the Rule and the
(1) Verified Statement of Claims (Form 1-SCC) prescribed docket and other legal fees are paid.
(2) Verified Response (Revised Rules on Small Claims Cases, Sec. 15,
(3) Permissive Counterclaim (Revised Rules on A.M. No. 08-8-7-SC, as amended, effective April
Small Claims Cases, Secs. 4, 13, and 15,
11, 2022
A.M. No. 08-8-7-SC, as amended, effective
April 11, 2022)
NOTE: While in small claims cases, permissive
Statement of Claim (Form 1-SSC) counterclaim is allowed as long as the amount
and nature thereof are within the coverage of the
It must be accompanied by the following, in as Rules of Procedure for Small Claims cases, the
many copies as there are defendants: same is not allowed under the Rules on Summary
Procedure.
• Verification and Certification Against Forum
Shopping, Splitting a Single Cause of Action,
and Multiplicity of Suits;
• Duly certified photocopies of the actionable
document/s subject of the claim;
• Affidavits of witnesses, and
• Other evidence to support the claim.

No evidence shall be allowed during the hearing

which was not attached to or submitted together
with the Statement of Claim/ s, unless good cause
is shown for the admission of additional evidence.
(Revised Rules on Small Claims Cases, Sec. 4,
A.M. No. 08-8-7-SC, as amended, effective April
11, 2022)

Compulsory counterclaim
i. Is within the coverage of the Rule,
exclusive of interest and costs;
ii. Arises out of the same transaction or
event that is the subject matter of the
plaintiff’s claim;
iii. Does not require for its adjudication the
joinder of third parties; and
iv. Is not a subject of another pending
action. (Revised Rules on Small Claims
Cases, Sec. 15, A.M. No. 08-8-7-SC, as
amended, effective April 11, 2022)

93
Summary Table of the Kinds of Pleadings

Pleading Illustration Example

B & C borrowed money from A. They failed to pay
the loaned amount on the due date, and despite
demand from A, they still failed to pay the same.
Complaint
A filed a complaint for sum of money against B & C
before the Regional Trial of Manila.
B and C (or B or C) can file an Answer against A

Negative defense:
B specifically denies the allegation of A. the truth of
the matter being he never secured any loan from A
Answer
because he does not even know A.

Affirmative defense:
B admits that they borrowed money from A but that
the same has already been paid.
B, aside from alleging payment as a defense in his
Answer, set up counterclaims for:

a. P100,000 as damages and P30,000 as

Counterclaim attorney’s fees as a result of the baseless
filing of the complaint; and
b. P500,000 as the balance of the purchase
price of the 10 units of air conditioners he
sold to A.
If B has a claim against A which arises out of the
same transaction or series of transactions or
occurrence which is the subject matter of the claim
of A, then B may raise it in his Answer as a
compulsory counterclaim.
Compulsory
The counterclaim for damages and attorney’s fees
Counterclaim
arising from the complaint filed by A is a compulsory
counterclaim.

Note: A compulsory counterclaim not raised in the

same action is barred, unless otherwise allowed by
the Rules (Rule 6, Sec. 7)
If B has a claim against A which does not arise out
of the same transaction or series of transactions or
occurrence which is the subject matter of the claim
Permissive of A, then he may raise it in his Answer as a
Counterclaim permissive counterclaim.

The counterclaim of B for P350,000 as the balance

of the purchase price of the 10 units of air

94
 conditioners he sold to A is a permissive
counterclaim.

Note: A permissive counterclaim may be set up as

an independent action and will not be barred if not
contained in the Answer to the complaint.
If A sues B and C for the collection of a loan, A, who
merely acted as an accommodation party, may file a
cross-claim against his co-defendant C, by asserting
that it is C who is the actual and true debtor and,
hence, should be ultimately liable for the payment of
Crossclaim
the loan.

Note: C as the co-defendant sued shall be referred

to as cross-defendant, while B, the defendant who
sued C, is called a cross-claimant.
If B has a claim against D, a third person not yet a
party to the original action, then he may, with leave
of court, file a third-party complaint against D for
contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim.
Third-party
complaint B files a third-party complaint for collection of sum
of money against D, the latter being the surety or
guarantor of B for his loan against A.

In essence, B is attempting to transfer to D the

liability asserted by A against him.

If D (the third-party defendant) has a claim against

E, a person not a party to the original action, then
he may, with leave of court, file a fourth-party
complaint against E for contribution, indemnity,
Fourth-party subrogation or any other relief, in respect of his
complaint opponent's claim.

Summary of designation:
B – original defendant and third-party plaintiff
D – third-party defendant and fourth-party plaintiff
E – fourth-party defendant

95
 If A also has a claim against B in connection with the
counterclaim of B, which arises out of the same
Counter-
transaction or series of transactions or occurrence
counter claim
which is the subject matter of the counterclaim of B,
then A can raise the same as a counter-counterclaim.

Counter-
cross-claim If C also has a claim against B in connection with the
latter's cross-claim against him, then C can raise it in
his Answer to the cross-claim as a counter cross-
claim.

Complaint-in-
intervention In intervention, a third party not originally impleaded
in a proceeding becomes a litigant therein to enable
him to protect or preserve a right or interest which
may be affected by such proceeding.

In a suit for recovery of land by A against B, C who

claims to be the real owner of the subject land may
intervene.

Note: The intervenor shall file an answer-in-

intervention if he or she unites with the defending
party in resisting a claim against the latter. (Rule 19,
Sec. 3)

96
(2) PARTS OF A PLEADING (Rule 7) paragraph may be referred to by its
number in all succeeding pleadings. (Rule
Parts of a Pleading 7, Sec. 2[a])
(a) Caption ii. Headings
(b) Body When two or more causes of action are
(i) Paragraphs joined, the statement of the first shall be
(ii) Headings
prefaced by the words “first cause of
(iii) Relief
(iv) Date action,” of the second by “second cause
(c) Signature and address of action,” and so on for the others.
(d) Verification; and
(e) Certification against Forum Shopping When one or more paragraphs in the
(Rule 7, Secs. 1 to 5) answer are addressed to one of several
causes of action in the complaint, they
Contents of a Pleading shall be prefaced by the words “answer
(a) Names of witnesses who will be to the first cause of action” or “answer to
presented to prove a party’s claim or the second cause of action” and so on;
defense;
and when one or more paragraphs of the
(b) Summary of witnesses’ intended
testimonies; judicial affidavits shall be answer are addressed to several causes
attached; of action, they shall be prefaced by words
(c) Documentary and object evidence in to that effect. (Rule 7, Sec. 2[b])
support of the allegations contained in iii. Relief
the pleading. (Rule 7, Sec. 6) The relief sought must be specified, but
it may add a general prayer for such
a) Caption further or other relief as may be deemed
The caption sets forth the: just or equitable. (Rule 7, Sec. 2[c])
(1) Name of the court;
(2) Title of the action (i.e. the names of the
Purpose: To put an end to the practice of
parties and respective participation); and
(3) The docket number, if assigned (Rule 7, some lawyers of omitting the amount of
Sec. 1) damages prayed for in the prayer
(although alleged in the body), in order
b) Body to evade payment of the correct filing
Sets forth the pleading’s designation, the fees. (Rizal vs. Naredo, G.R. No. 151898,
allegations of party's claims or defenses, the March 14, 2012)
relief prayed for, and its date. (Rule 7, Sec.
2) General prayer for other reliefs
deemed just and equitable
The body is composed of the following:
i. Paragraph As an exception to the general rule that
The allegations in the body of a pleading court cannot grant a relief not prayed for
shall be divided into paragraphs so in the pleadings or in excess of that being
numbered as to be readily identified, sought, the court may grant reliefs that
each of which shall contain a statement are not specifically prayed for as long
of a single set of circumstances so far as as they are just and equitable.
that can be done with convenience. A

97
 (Riano, Civil Procedure (The Bar Lecture
Series), Vol. I, p. 286, 2022)
iv. Date
Every pleading shall be dated. (Rule 7
Sec. 2[d]). An undated pleading, similar
to an unsigned pleading, does not
produce any legal effect. (Salazar, The
Fundamentals of Civil Procedure, p. 60,
2021)
c) Signature and address
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 certificate
by him or her that he/she has read the pleading
and document, and that to the best of his or her
Knowledge, Information, and Belief, formed
after an Inquiry Reasonable under the
circumstances (KIB-IR):
(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
(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)]
Violation of the Rule
Effect of The court may on motion or
violation motu proprio and after notice
of the and hearing, impose an
Rule appropriate sanction or refer
such violation to the proper office
for disciplinary action. (Rule 7,
Sec. 3[c])
Sanctions May include, but shall not be
limited:
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.
(Rule 7, Sec. 3[c])
On whom The attorney, law firm, or the
sanction party that violated the rule.
imposed
General Rule: The law firm shall
be jointly and severally liable for
a violation committed by its
partner, associate, or employee.
Exception: Presence of
exceptional circumstances
Note: The lawyer or law firm
CANNOT pass on the monetary
penalty to the client (Rule 7, Sec.
3[c]).
Unsigned pleading
An unsigned pleading may no longer be
remedied, and 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.
98
Additional information to be placed as part
of a counsel’s signature
(1) Roll of Attorney’s Number (Bar Matter No.
1132, April 2, 2003);
(2) Professional Tax Receipt (PTR) Number;
(3) IBP Official Receipt Number and date of
issue (or lifetime membership number) (Bar
Matter No. 287, September 26, 2000);
(4) Number and date of Mandatory Continuing
Legal Education (MCLE) Certificate of
Compliance/Exemption (Bar Matter No. 1922,
June 3, 2008)
(5) Address of counsel
(6) Counsel’s contact details (A.M. No. 07-6-5-
SC)
Effect of failure to indicate the correct
MCLE Certificate Number
Failure to disclose the required MCLE information
will NOT result in the dismissal of the case,
but will subject the counsel to appropriate
penalty and disciplinary action. To avoid
inordinate delays in the disposition of cases
brought about by a counsel's failure to indicate in
his or her pleadings the number and date of issue
of his or her MCLE, Bar Matter No. 1922 was
amended in the Supreme Court’s Resolution of
January 14, 2014, repealing the phrase "Failure
to disclose the required information would cause
the dismissal of the case and the expunction of
the pleadings from the records" and replacing it
with "Failure to disclose the required
information would subject the counsel to
appropriate penalty and disciplinary
action."
Thus, under the amendatory Resolution, the
failure of a lawyer to indicate in his or her
pleadings the number and date of issue of his or
her MCLE Certificate of Compliance will no longer
result in the dismissal of the case and expunction
of the pleadings from the records. Nonetheless,
such failure will subject the lawyer to the
prescribed fine and/or disciplinary action. (People
vs. Arrojado, G.R. No. 207041, November 9,
2015)
d) Verification
General Rule Exception
Pleadings need not be When otherwise
under oath or verified specifically required
by law or rule.
(Rule 7, Sec. 4)
How a pleading is verified
It is verified by an affidavit of an affiant duly
authorized to sign said verification. The
authorization of the affiant to act on behalf of
a party, whether in the form of a secretary’s
certificate of special power of attorney,
should be attached to the pleading, and shall
allege the following attestations:
(1) The allegations in the pleading are true and
correct based on his or her personal
knowledge, or based on authentic
documents;
(2) The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
(3) The factual allegations therein have
evidentiary support or, if specifically so
identified, will likewise have evidentiary
support after a reasonable opportunity for
discovery (See further discussion on Judicial
Affidavit Rule)
The signature of the affiant shall further serve as
a certification of the truthfulness of the
allegations. (Rule 7, Sec. 4)
Who shall make the verification
A verification may be made by the party, his
lawyer or his representative, or any person
who personally knows the truth of the facts
alleged in the pleading. (Tanjuatco vs. Judge
Gako, A.M. No. RTJ-06-2016, March 23, 2009).
Again, if made by a person other than the party,
99
such person's authority to sign the verification,
whether in the form of a secretary's certificate or
special power of attorney, should be attached to
the pleading. (Rule 7, Sec. 4)
Allegations must be based on personal
knowledge or authentic records
A pleading which is required to be verified that
contains a verification based on “information
and belief” or upon “knowledge,
information and belief” shall be treated as an
unsigned pleading, and shall not produce legal
effect (Rule 7, Sec. 4). This is because allegations
based on “information and belief” or upon
“knowledge, information and belief” are mere
hearsay and are not admissible in evidence
(Salazar, The Fundamentals of Civil Procedure, p.
64, 2021)
Effect of non-compliance
A pleading which is required to be verified but
lacks the proper verification shall be treated as
an unsigned pleading which produces no
legal effect and is dismissible. (CIR vs. APO
Cement Corporation, G.R. No. 193381, February
8, 2017)
However, verification is only a formal
requirement, and not jurisdictional, 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). Hence defect in the
verification does not render the pleading
fatally defective. (Sarmiento vs. Zaranta, G.R.
No. 167471, February 5, 2007)
The court may order the correction of the
pleading if verification is lacking or act on the
pleading although it is not verified, if the
attending circumstances are such that the strict
compliance with the rules may be dispensed with
in order that the ends of justice may thereby be
served. (Republic vs. Coalbrine International
Philippines, Inc., G.R. No. 161838, April 7, 2010)
Examples of Pleadings that must be
verified (not exclusive):
(1) Complaint, compulsory counterclaim,
cross-claim, and the reply thereto under
the Rule on Summary Procedure (Revised
Rules on Summary Procedure, Sec. 1, A.M.
No. 08-8-7-SC, as amended, effective April
11, 2022)
(2) Statement of Claim/s and Response in
Small Claims Cases (Revised Rules on
Small Claims Cases, Sec. 4, A.M. No. 08-
8-7-SC, as amended, effective April 11,
2022);
(3) Answer contesting the genuineness of an
actionable document (Rule 8, Sec. 8)
(4) Petition for relief from judgment or order
(Rule 38, Sec. 3);
(5) Petition for review from RTC to the CA
(Rule 42, Sec. 1);
(6) Petition for review from quasi-judicial
agencies to the CA (Rule 43, Sec. 5);
(7) Appeal by certiorari from the CTA to the SC
(Sec. 12, R.A. 9282 amending Sec. 19, R.A.
1125);
(8) Appeal by certiorari from CA to the SC
(Rule 45, Sec. 1);
(9) Petition for annulment of judgments or
final orders and resolutions (Rule 47, Sec.
1);
(10) Complaint for injunction (Rule 58, Sec. 4);
(11) Application for appointment of receiver
(Rule 59, Sec. 1);
(12) Application for support pendente lite (Rule
69, Sec. 1);
(13) Petition for certiorari against judgments,
final orders, or resolutions of constitutional
commissions (Rule 64, Sec. 2);
(14) Petition for certiorari (Rule 65, Sec. 1);
(15) Petition for prohibition (Rule 65, Sec. 2);
(16) Petition for mandamus (Rule 65, Sec. 3);
(17) Petition for quo warranto (Rule 66, Sec. 1);
(18) Complaint for expropriation (Rule 67, Sec.
1);
(19) Complaint for forcible entry or unlawful
100
 detainer (Rule 70, Sec. 4);
(20) Petition for indirect contempt (Rule 71,
Sec. 4)
(21) Petition for appointment of a general
guardian (Rule 93, Sec. 2);
(22) Petition for leave to sell or encumber
property of the ward by a guardian (Rule
95, Sec. 1);
(23) Petition for declaration of competency of a
ward (Rule 97, Sec. 1);
(24) Petition for habeas corpus (Rule 102, Sec.
3);
(25) Petition for change of name (Rule 103, Sec.
2)
(26) Petition for voluntary judicial dissolution of
a corporation (Rule 104, Sec. 1);
(27) Petition for cancellation or correction of
entries in the civil registry (Rule 108, Sec.
1)
e) Certification against Forum Shopping
Forum Shopping
Forum shopping exists when, as a result of an
adverse decision in one forum, or in anticipation
thereof, a party seeks a favorable opinion in
another forum through means other than appeal
or certiorari. (CIR vs. Standard Insurance Co.
Inc., G.R. No. 219340, April 28, 2021,
Hernando, J.)
There can also be forum shopping when a party
institutes two or more suits in different
courts, either simultaneously or
successively, in order to ask the courts to rule
on the same or related causes and/or to grant the
same or substantially the same reliefs on the
supposition that one or the other court
would make a favorable disposition or
increase a party’s chances of obtaining a
favorable decision or action. (Huibonhoa vs.
Concepcion, G.R. No. 153785, August 3, 2006)
Essence: The filing of multiple suits involving the
same parties for the same cause of action, either
simultaneously or successively, for the purpose of
obtaining a favorable judgment.
The certification against forum shopping is a
sworn statement in which the plaintiff or
principal party certifies in a complaint or
initiatory pleading to the following matters:
(1) That he or she has not commenced any
action or filed any claim involving the
same issues in any court, tribunal, or
quasi-judicial agency and, to the best of his
or her knowledge, no such other action or
claim is pending therein;
(2) That if there is such other pending action or
claim, a complete statement of the present
status thereof; and
(3) That if he or she should thereafter learn that
the same or similar action or claim has been
filed or is pending, he shall report that fact
within 5 calendar days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been filed.
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. (Rule 7, Sec. 5)
Purpose of the certification against forum
shopping
(1) Constitutes 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 (Uy vs.
Court of Appeals, G.R. No. 173186,
September 16, 2015);
(2) To prevent contradictory decisions of
two or more courts on the same controversy
(Belo Medical Group, Inc. vs. Santos , G.R.
No. 185894, August 30, 2017);
(3) To prevent abuse of court processes,
degradation of the administration of justice,
havoc upon orderly judicial procedure, and
the congestion of the heavily burdened
dockets of the courts (Huibonhoa vs.
Concepcion, G.R. No. 153785, August 3,
2006).
101
 The identity in the two cases should be such that
the judgment which may be rendered in one
Three Ways Forum Shopping is committed would, regardless of which party is successful,
amount to res judicata in the other (Grace Park
Litis Res Splitting of
Int’l Corp. vs. Eastwest Banking Corp., G.R. No.
pendentia judicata causes of
210606, July 27, 2016).
action
by filing by filing by filing
Pleadings that require a certification
multiple multiple multiple
cases based cases based cases based against forum shopping
on the same on the same on the same
cause of cause of cause of Initiatory pleadings and other initiatory pleadings
action and action and action but asserting a claim for relief:
with the same the same with different a) Complaint;
prayer, the prayer, the prayers b) Permissive counterclaim;
previous case previous case c) Cross-claim;
not having having been d) Third (fourth, etc.) party complaint;
been resolved finally e) Complaint-in-intervention
yet resolved
(Ma. Victoria Galang vs. Peakhold Finance Note: The certification is mandatory under Sec.
Corporation, G.R. No. 233922, January 24, 2018). 5 of Rule 7 but not jurisdictional since
jurisdiction over the subject of the action is
Test to determine existence of forum conferred by law (Robert Development
shopping Corporation vs. Quitain, 315 SCRA 150, 160). The
The question to ask is whether elements of litis absence of the certification would not affect the
pendentia are present, or whether a final jurisdiction of the court over the action. (Riano,
judgment in one case will amount to res judicata Civil Procedure (The Bar Lecture Series), Vol. I, p.
in another. 296, 2022)

Thus, the test is whether in the two or more cases Who executes certification against forum
pending, there is identity of (litis pendentia): shopping
a) Parties
b) Rights or causes of action, and
General Rule Exception
c) Relief sought (Huibonhoa vs. Concepcion,
Plaintiff or principal If for reasonable or
G.R. No. 153785, August 3, 2006)
party; cannot be signed justifiable reasons,
by counsel the party-pleader is
In sum, both actions must involve the same unable to sign, he
transaction, same essential facts and Reason: Only the must execute a
circumstances and must raise identical causes of petitioner himself has Special Power of
action, subject matter, and issues. Clearly, forum actual knowledge of Attorney (SPA)
shopping does not exist where different orders whether or not he has designating his
were questioned, two distinct causes of action initiated similar actions counsel of record
or proceedings in to sign on his
and issues were raised, and two objectives were
different courts or behalf.
sought. (CIR vs. Standard Insurance Co. Inc., agencies.
G.R. No. 219340, April 28, 2021, Hernando, J.) (Uy vs. Court of Appeals, G.R. No. 173186,
September 16, 2015)

102
 knowledge of the matter being certified. A
Special Power of Attorney of an agent board resolution authorizing a corporate
When SPA is constituted precisely to authorize officer to execute the certification against forum-
the agent to file and prosecute suits on shopping is necessary. A certification not signed
behalf of the principal, then it is such agent by a duly authorized person renders the petition
who has actual and personal knowledge whether subject to dismissal. (Gonzales vs. Climax Mining
he or she has initiated similar actions or Ltd., G.R. No. 161957. February 28, 2005)
proceedings before various courts on the same
issue on the principal’s behalf, thus, satisfying The certification against forum shopping may be
the requirements for a valid certification signed for and, on its behalf, by a specifically
against forum shopping. The rationale behind authorized lawyer who has personal knowledge
the rule that it must be the “petitioner or principal of the facts required to be disclosed in such
party himself” who should sign such certification document. (Cosco Philippines Shipping, Inc. vs.
does not apply. Kemper Insurance Company, G.R. No. 179488,
April 23, 2012).
Thus, the rule on the certification against forum
shopping has been properly complied with when Note: The authorization of the affiant to act on
it is the agent or the attorney-in-fact who initiated behalf of the party, should be attached to the
the action on the principal’s behalf and who pleading.
signed the certification against forum shopping.
(Heirs of Josefina Gabriel vs. Secundina Cebrero, Necessity of board resolution
G.R. No. 222737, November 12, 2018)
General Only individuals vested with
When there are several plaintiffs or Rule authority by a valid board
petitioners resolution may sign the
certificate of non-forum
General Rule Exception
shopping in behalf of a
The certification Under reasonable or
corporation. Proof of said
against forum justifiable
authority must be attached;
shopping must be circumstances, however,
otherwise, the petition is subject
signed by all the as when the plaintiffs or
to dismissal (Asean Pacific
plaintiffs or petitioners share a
Planners vs. City of Urdaneta,
petitioners in a common interest and
G.R. No. 162525, September 23,
case; otherwise, invoke a common
2008).
those who did not cause of action or
Exception The following officers of a
sign will be dropped defense, the signature
corporation do NOT require a
as parties to the of only one of them
Board Resolution; they can
case. substantially conforms to
always sign the verification and
the Rule.
certification against forum
(Basan vs. Coca-Cola Bottlers, Phils., G.R. Nos.
shopping without said resolution:
174365-66, February 04, 2015) (1) Chairperson of the Board of
Directors
When the plaintiff is a juridical entity (2) President of the corporation
The signatory in the case of the corporation (3) General Manager
should be “a duly authorized director or (4) Acting General Manager
officer of the corporation” who has (5) Personnel Officer

103
 (6) Employment Specialist in a
labor case
Defect Effect
(7) Other officials and
employees who are “in a
position to verify the Non- Not curable by mere
truthfulness and correctness compliance amendment
of the allegations in the with any of the
petition.” (Board of requirements General Rule: Cause for
Investments vs. Sr. Metals on Certification dismissal of the case without
Inc, G.R. No. 219927, Against Forum prejudice
October 3, 2018).
Shopping Exception: When
under Rule 7, otherwise provided, upon
Rationale: Corporate officers or representatives
Sec. 5 motion and after hearing
of the corporation are in a position to verify the
truthfulness and correctness of the allegations in Submission of Constitutes indirect
the petition. false contempt of court, without
certification prejudice to the
Note: The power granted by a corporation to a corresponding
corporate officer to sign the verification and administrative and criminal
certificate may be further delegated, via actions
special power of attorney, to another. (Fuji
Television Network vs. Espiritu, G.R. No. 204944- 1. 1. When forum shopping is
Commission of
45, 2014) Forum NOT considered willful
Shopping and deliberate:
When the petitioner is a government entity
2.
3. The subsequent case shall
Where the petitioner is a government entity
be dismissed without
created by the Constitution, and headed by its prejudice, on the ground of
Chairman, there is no need for the Chairman either litis pendentia or res
himself to sign the verification. Its judicata
representative, lawyer or any person who 4.
personally knew the truth of the facts alleged in 5. 2. When there is willful
and deliberate forum
the petition could sign the verification.
shopping by the party or
HOWEVER, with regard to the certification of his/her counsel:
non-forum shopping, the established rule is 6.
that it must be executed by the plaintiff or 7. Both (or all if there are
any of the principal parties and not by more than two actions)
counsel. Failure to show such authority to shall be dismissed with
sign the certification of non-forum shopping prejudice, shall constitute
direct contempt, and is a
renders the petition dismissible. (Commission
cause for administrative
on Appointments vs. Paler, G.R. No. 172623, sanctions. (The Heirs of
March 3, 2010). Inocentes Mampo and
Raymundo A. Mampo vs.
Non-compliance with the requirements for Morada G.R. No. 214526,
Certification against Forum Shopping (Rule November 03, 2020). No
7, Sec. 5)

104
 is so not only because the issues in the appellate
motion to dismiss and
hearing are required. 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
Note: The rule does not apply to cases that
only one case (Eulogio vs. Bell Sr., G.R. No.
arise from an initiatory or original action which
186322, July 8, 2015)
has been elevated by way of appeal or certiorari
to higher or appellate courts or authorities. This

Verification vs. Certification against Forum Shopping

Verification
Purpose To secure assurance that the matters
alleged in a pleading are true and
correct, and not the product of the
imagination or a matter of
speculation, and that the pleading is
filed in good faith.
When needed When specifically required by law or
rule (GR: pleadings need not be under
oath)
Who should The party, his lawyer or his
sign representative, or any person who
personally knows the truth of the facts
alleged in the pleading
Note: if made by a person other than
the party, such person's authority to
sign the verification, whether in the
form of a secretary's certificate or
special power of attorney, should be
attached to the pleading.
Nature; effect Formal requirement, not
of its absence jurisdictional; the lack of it will not
divest the court of jurisdiction.
Effect of non- Not fatal; does not necessarily render
compliance / the pleading fatally defective.
defect
Curability 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.
Substantial Deemed substantially complied with
compliance when one who has ample
when there knowledge to swear to the truth
Certification against forum shopping
To give assurance to the court or other
tribunal that there are no other pending
cases involving basically the same parties,
issues and causes of action; to prevent
contradictory decisions of two or more
courts; to prevent abuse of court processes.
Required in the complaint or other initiatory
pleadings asserting a claim for relief
General Rule: The party-pleader himself
Reason: Only the petitioner himself has
actual knowledge of whether or not he has
initiated similar actions or proceedings in
different courts or agencies.
Exception: Counsel of record - If for
reasonable or justifiable reasons, the party-
pleader is unable to sign, he must execute a
SPA designating his counsel of record to sign
on his behalf
Mandatory, but not jurisdictional; the lack of
it will not divest the court of jurisdiction.
General Rule: Generally not curable by its
subsequent submission or correction
thereof,
Exception: When there is a need to relax the
Rule on the ground of "substantial
compliance" or presence of "special
circumstances or compelling reasons."
General Rule: Must be signed by ALL the
plaintiffs or petitioners in a case; otherwise,

105
 are several of the allegations in the complaint or those who did not sign will be dropped as
plaintiffs petition signs the verification, and parties to the case.
when matters alleged in the petition
have been made in good faith or are Exception: Under reasonable or justifiable
true and correct. circumstances, 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.
Effect of non- No effect; signature of one is If it will not fall under the exception, then
signing of sufficient as long as he has ample the parties who did not sign will be dropped
other parties knowledge to swear to the truth of the as parties to the case.
allegations
(Rule 7, Secs. 4 and 5); (Vda. De Formoso vs. Philippine National Bank, G.R. No. 154704, June
1, 2011)

Contents of a pleading by parties still trying to find evidence as basis

for the claims during the pendency of the case.
Under the 2019 Amendments, every pleading
stating a party's claims or defenses shall, in
addition to those mandated by Rule 7, Sec. 6 (3) MANNER OF MAKING ALLEGATIONS
state the following: (RULE 8)
(a) Names of witnesses who will be presented
to prove a party's claim or defense; (a) IN GENERAL
(b) Summary of the witnesses' intended Every pleading shall contain in a methodical and
testimonies, judicial affidavits of said logical form:
witnesses shall be attached to the pleading; (1) a plain, concise and direct statement of the
(c) Documentary and object evidence in ultimate facts,
support of the allegations contained in the (2) the evidence on which the party pleading
pleading (Rule 7, Sec. 6) relies for his or her claim or defense, as the
case may be
Judicial Affidavits of witnesses (3) If the cause of action or defense is based on
General Rule Exception law, the pertinent provisions of the law and
its applicability. (Rule 8, Sec. 1)
Only witnesses whose If a party
judicial affidavits are presents
attached to the pleading meritorious Ultimate Facts Evidentiary Facts
shall be presented by the reasons as basis The facts essential to Those facts which are
parties during trial; no for the admission a claim or defense. necessary for
other witness or affidavit of additional determination of the
shall be heard or admitted witnesses. The important and ultimate facts; they
by the court. substantial facts are the premises upon
Rationale: To ensure that a person filing a which either directly which conclusions of
case or a pleading would, at the time of filing, form the basis of the ultimate facts are
already have evidentiary basis to back the primary right and based.
same up, and there would be no delay caused duty, or which directly
make up the wrongful

106
 acts or omissions of
the defendant.
They are the principal, They are details or
determinative, probative matters, or
constitutive facts, particulars of
upon the existence of evidence by which the
which, the entire material facts or
cause of action rests. elements are
established.
(Tantuico vs. Republic, G.R. No. 89114,
December 2, 1991; Remitere vs. Yulo, G.R. No. L-
19751, 28 Feb. 1966)
Note: A fact is essential if it cannot be stricken
out without leaving the statement of the cause of
action or the defense insufficient; General
allegations that a contract is valid or legal, or is
just, fair, and reasonable, are mere conclusions
of law. Likewise, allegations that a contract is
void, voidable, invalid, illegal, ultra vires, or
against public policy, without stating facts
showing its invalidity, are mere conclusions of
law. (Zuniga-Santos vs. Santos-Gran, GR No.
197380, October 8, 2014).
Contents of pleadings no longer limited to
ultimate facts
Under the Amended Rules, the contents of
pleadings are no longer limited to ultimate facts.
Rule 7, Sec. 6 provides that the witnesses,
summaries of their testimonies, their judicial
affidavits, and documentary and object evidence
should already be included in the pleading.
Likewise, Sec. 1 of Rule 8 also states that every
pleading must contain the ultimate facts,
including the evidence on which the party
pleading relies.
Sec. 1 of Rule 8 also states that every pleading
must contain the ultimate facts, including the
evidence on which the party pleading relies.
Note: Rule 7, Sec. 6 and Rule 8, Sec. 1 are
connected. The former requires that every
pleading state the documentary and object
evidence in support of the allegations contained
in the pleading. The latter requires that every
pleading contain not only a statement of the
ultimate facts, but also the evidence on which the
party relies for his/her claim or defense. (M. De
Leon, Remedial Law Reviewer-Primer, 2021
Edition, p. 101) Prior to this, evidentiary facts
were supposed to be omitted from pleadings, as
these should be presented only during trial.
Pleading Alternative Causes of Action or
Defenses (Rule 8, Sec. 2)
A party may set forth two or more claims or
defenses alternatively in one cause of action.
Such happens when a party is not certain which
cause of action would squarely fit the set of facts
alleged in the complaint. (Riano, Civil Procedure
(The Bar Lecture Series), Vol. I, p. 315, 2022)
Also, a pleading which alleges alternative causes
of action is not made insufficient by the
insufficiency of one or more of the alternative
statements as long as one of them is sufficient.
(Rule 8, Sec. 2)
Example: A plaintiff may be unsure as to whether
the liability of the carrier is based either on breach
of contract or a quasi-delict. The rules allow him
to state both causes of action in the alternative.
(Riano, Civil Procedure (The Bar Lecture Series),
Vol. I, p. 315, 2022)
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
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
107
jurisdiction over his person, all other possible Judgments of No need to show
defenses (La Naval Drug Corporation vs. CA, G.R. domestic or foreign jurisdiction; an
No. 103200, August 31, 1994). courts, tribunals, authenticated copy of
boards, or officers the judgment or
(Rule 8, Sec. 6); decision shall be
attached to the
pleading.
Condition Precedent Official document or It is sufficient to aver
Refers to matters which must be complied with act (Rule 8, Sec. 9). that the document was
before a cause of action arises. issued or the act was
done in compliance with
law.
In any pleading, a general averment of the
performance or occurrence of all conditions
Facts that must be averred with
precedent shall be sufficient (Rule 8, Sec. 3).
PARTICULARITY:

Examples of conditions precedent:

(1) In all averments of fraud or mistake the
(1) Exhaustion of Administrative Remedies;
(2) Earnest efforts were undertaken to for the
reconciliation of the members of the same
family; and
(2) Capacity to sue or be sued; authority to sue
(3) Barangay Conciliation Proceeding
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:
circumstances constituting fraud or mistake
must be stated with particularity (Rule 8,
Sec. 5)
or be sued in a representative capacity; legal
existence of an organized association of
person that is made a party (Rule 8, Sec. 4;
Riguera, Primer-Reviewer on Remedial Law,
Vol. I Civil Procedure, p. 304, 2022)
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. (Ibid.)

Conditions There must still be an

(b) ACTION OR DEFENSE BASED ON
precedent allegation that the
DOCUMENT (RULE 8, SEC. 7)
(Rule 8, Sec. 3); specific condition
precedent has been
complied with; An "actionable document" is a written instrument
otherwise, the case will or document upon which one’s cause of action or
be dismissed for lack of defense is based. (Riano, Civil Procedure (The Bar
cause of action. Lecture Series), Vol. I, p. 318, 2022)
Malice, Intent, It is difficult to state the
Knowledge, or particulars constituting Pleading an actionable document
Other condition of these matters.
Whenever an action or defense is based upon a
the mind (MIKO)
(Rule 8, Sec. 5); written instrument or document:

108
 (a) The substance of such document shall be
set forth in the pleading, and
(b) The original or a copy thereof shall be
attached to the pleading as an exhibit,
which shall form part of the pleading. (Rule
8, Sec. 7)
Note: Setting forth the substance of the
actionable document and the attachment of such
to the pleading is the only way to plead the
document under the Amended Rules.
How to contest an actionable document
General Rule Exception
The adverse party, The requirement of an
under oath, oath does not apply
specifically denies when:
them, and sets forth
what he/she claims to a. The adverse party
be the facts does not appear
to be a party to
the instrument, or
b. Compliance with
an order for an
inspection of the
original
instrument is
refused. Rule 8,
Sec. 8).
Effect of failure to specifically deny under
oath
Failure to comply with the prescribed procedure
results in the admission of the genuineness and
due execution of the actionable document. (Rule
8, Sec. 8); (Spouses Ramon Sy vs. Westmont
Bank, G.R. No. 201074, October 19, 2016)
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).
Due execution and genuineness
Admission of the due execution and genuineness
of a document simply means:
(a) that the party whose signature it bears
admits that he signed it or that it was signed
by another for him with his authority;
(b) 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;
(c) that the document was delivered; and,
(d) that any formal requisites required by law,
such as a seal, an acknowledgment, or
revenue stamp, which it lacks, are waived by
him.
Genuineness and due execution of the instrument
means that the instrument is not spurious,
counterfeit, or of different import on its face from
the one executed (Benguet Exploration vs. CA,
G.R. No. 117434, February 9, 2001).
Execution can only refer to the actual making and
delivery, but it cannot involved 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. (Hibberd
vs. Rohde and Mcmillian, G.R. No. 8418,
December 9, 1915)
Defenses NOT waived despite failure to
deny under oath
Failure to deny the genuineness and due
execution of an actionable document does not
preclude a party from arguing against it by
evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel
and want of consideration nor bar a party
from raising the defense in his answer or reply
and prove at the trial that there is a mistake or
imperfection in the writing, or that it does
not express the true agreement of the
parties, or that the agreement is invalid or that
109
there is an intrinsic ambiguity in the writing. form a belief as to the
(Go Tong Electrical Supply vs. BPI Family, G.R. truth thereof.
No. 187487, June 29, 2015)
Purpose of requiring specific denials
Defenses waived by admission The purpose of requiring respondents to make a
(1) Forgery of signature; specific denial is to make them disclose facts
(2) The party charged signed the instrument in which will disprove allegations of petitioner at the
some other capacity; trial, together with the matters they rely upon in
(3) Want of authority of an agent; support of such denial. This is to prevent
(4) Corporation was not authorized under the unnecessary expenses and waste of time by
charter to sign the instrument;
compelling both parties to lay their cards on the
(5) Want of delivery; or,
(6) The document as signed was not in words table, thus reducing the controversy to its true
and figures exactly set out in the pleading terms (Republic vs, Sandiganbayan, G.R. No.
(Go vs. BPI Savings Bank, GR No. 187487, 152154, July 15, 2003)
June 29, 2015).
A general denial does not become specific
(c) SPECIFIC DENIAL by the use of the word "specifically”
Three types of specific denials (amounting to
negative defenses)
A denial is not made specific simply because it is
so qualified by the defendant.
Absolute Denial Defendant specifies
(Rule 8, Sec. 10) each material allegation
When matters of whether the defendant alleges
of fact, the truth of
which he does not admit having no knowledge or information sufficient to
and whenever form a belief are plainly and necessarily within the
practicable, sets forth defendant's knowledge, an alleged "ignorance or
the substance of the lack of information" will not be considered as a
matters upon which he specific denial. (Aquintey vs. Tibong, G.R. No.
relies to support his
166704, December 20, 2006)
denial
Partial Denial The defendant does not
(Rule 8, Sec. 10) make a total denial of Sham denials
the material allegations, It is settled that denials based on lack of
but denies only a part knowledge or information or matters clearly
of the averment. The known to the pleader, or ought to be known to it,
defendant shall specify or could have easily been known by it are
so much of the
insufficient and constitute ineffective or sham
averment as is true and
material, and shall deny denials (Fernando Medical Enterprises, Inc. vs.
only the remainder. Wesleyan University, G.R. No. 207970, January
Denial through The defendant 20, 2016).
Disavowal of specifically denies a
Knowledge material averment in Effect of failure to make specific denials
the complaint on the General Material averments in a
basis that he is without Rule pleading asserting a claim shall
knowledge or (Rule 8, Sec. be deemed admitted when
information sufficient to 11) not specifically denied.

110
 Exceptions: The following averments in the
complaint are not deemed Rule 6, (SPIDERS-OFF)
admitted even if not Kinds of (1) Statute of limitations;
specifically denied: Pleadings, (2) Payment;
1. Amount of unliquidated Sec. 5(b) – (3) Illegality;
damages (Rule 8, Sec. 11) 1st par. (4) Discharge in bankruptcy;
2. Conclusions in a pleading, (5) Estoppel;
because it is for a court to (6) Release;
make conclusions, and (7) Statute of frauds;
3. Non-material allegations or (8) Any Other matter by way
averments, because the of confession and
rules provide that only avoidance;
material allegations have (9) Former recovery; and
to be denied. (10) Fraud.
(Riano, Civil Procedure (The Bar Lecture Series),
Vol. I, p. 344, 2022) Summary hearing:
May be ordered by the court to
Note: The use of the phrase “in a pleading be conducted within 15 days
from the filing of an answer
asserting a claim” in Rule 8, Sec. 11 means that
Resolution: Within 30 days
this Rule covers counterclaims, cross-claims, third from the termination of the
(fourth, etc.) party complaints, and complaints- summary hearing.
in-intervention, and not only complaints. (Rule 8, Sec. 12[d])
Rule 6: (SLR)
When a specific denial requires an oath Kinds of 1. Lack of jurisdiction over the
General Rule Exceptions Pleadings, Subject matter;
Sec. 5(b) – 2. Litis pendentia, and
Specific denial 1) when the adverse
2nd par. 3. Res judicata – barred by
under oath is party does not appear to
prior judgment
required for the be a party to the
denial of the instrument or
genuineness and 2) when compliance with
Note: Rule 9, Sec. 1 includes
Statute of Limitations as a non-
due execution of an order for inspection of
waivable ground for dismissal
an actionable the original instrument is
document. refused.
of a complaint; Rule 15, Sec. 12
also includes said ground as
(Rule 8, Sec. 8)
one of those that may be raised
in a motion to dismiss.
(d) Affirmative Defenses
The Amended Rules do not
An affirmative defense is an allegation of a new provide a time for which the
matter which, while hypothetically admitting the court must act on these
material allegations in the pleading of the grounds. Section 12, Rule 8
claimant, would nevertheless prevent or bar merely provides for a period for
the affirmative defenses listed
recovery by him or her. (Rule 6, Sec. 5)
in the first paragraph of Sec.
5(b), Rule 6 and not for those
A defendant shall raise his or her affirmative listed under the second
defenses in his or her answer, which shall be paragraph of such rule.
limited to the reasons/grounds below:

111
 Rule 8: (JuCoLIN) for a motion for reconsideration or petition for
Manner of (1) Lack of Jurisdiction over certiorari, prohibition or mandamus. [Rule 8, Sec.
Making the person of the 12, (e)]. but may be among the matters to be
Allegations defendant; raised on appeal after a judgment on the merits.
in (2) Failure to comply with a
Pleadings Condition precedent for
Sec. 12 filing the claim; Note: This means that from the denial of the
(3) Lack of Legal capacity to affirmative defenses, the case will just proceed to
sue by the plaintiff; trial. In case of an adverse judgment, the remedy
(4) Improper venue, and is to put the order of denial of the affirmative
(5) That the pleading defense in issue.
asserting the claim states
No cause of action
Striking out of pleading
No summary hearing, Court The court may order any pleading to be stricken
may motu proprio resolve these out or that any sham or false, redundant,
affirmative defenses immaterial, impertinent, or scandalous matter be
Resolution: Within 30 days stricken out therefrom. (Rule 8, Sec. 13)
from the filing of an answer
Note: Affirmative defenses also include extinction
How striking out is done (Rule 8, Sec. 13)
(that the claim or demand has been paid, waived,
abandoned, or otherwise extinguished) (Rule 15,
Who Responsive When
Sec. 13); (M. De Leon, Remedial Law Reviewer-
initiates pleading striking out
Primer, 2021 Edition, p. 79)
(motion)
must be done
Effects of failure to raise affirmative
1. Upon Responsive Motion must be
defense at the earliest opportunity
motion pleading made before
General rule: Exception:
made by permitted responding to a
Failure to raise an Non-waivable
a party pleading
affirmative defense in grounds:
the answer or at the 1. Lack of
earliest opportunity Jurisdiction over the Responsive Motion must be
constitutes a waiver subject matter; pleading NOT within twenty
of the defense. 2. Litis pendentia; permitted by the (20) calendar
[Rule 8, Sec. 12 (b)] 3. Res judicata; and Rules days after
4. Statute of service of the
limitations (Rule 9, pleading before
Sec. 1).
him or her
2. Upon Court may motu proprio order the
Remedies available against denial of
court’s striking out at any time
affirmative defenses
own
If the affirmative defenses are granted, the
initiation
complaint shall be dismissed. If affirmative
(Rule 8, Sec. 13)
defenses are DENIED, they shall NOT be subject

112
(4) EFFECT OF FAILURE TO PLEAD (Rule 9)
EFFECT OF FAILURE TO PLEAD
Compulsory Counterclaim or Cross-claim
Defenses and Objections not pleaded
not set up
GENERAL RULE
DEEMED WAIVED BARRED
Defenses and objections not pleaded either in a A compulsory counterclaim, or a cross-claim, not
motion to dismiss or in the answer are deemed set up shall be barred. (Rule 9, Sec. 2)
waived. (Rule 9, Sec. 1)
EXCEPTIONS
When it appears from the pleadings or the (a) Counterclaim or cross-claim arising after filing
evidence on record that the court: of the Answer (Rule 11, Sec. 9)
(b) Omitted counterclaim or cross-claim through
(a) Has no jurisdiction over the subject matter; oversight, inadvertence, or excusable neglect,
(b) There is another action pending between the or when justice requires (Rule 11, Sec. 10)
same parties for the same cause (litis
pendentia);
(c) The action is barred by a prior judgment (res
judicata);
(d) The action is barred by statute of limitations
(prescription).

The court shall dismiss the claim.

(Rule 9, Sec. 1 cross-reference with Rule 15, Sec.

10 – Omnibus Motion Rule)
(Rule 9, Sec. 1 and 2; Rule 15, Sec. 10)

113
DECLARATION OF DEFAULT (Rule 9, Sec. 3)
Default
Nature of default
Default is a procedural concept that occurs when
the defending party fails to file his answer
within the reglementary period. A declaration or
order of default is issued as a punishment for
unnecessary delay in joining issues. (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 348,
2022)
(2) Defendant who fails to answer a
However, in the case of Lui Enterprises v. Zuellig
Pharma, the Supreme Court stated that default is
not meant to punish the defendant but to
enforce the prompt filing of the answer to
the complaint. (Lui Enterprises vs. Zuellig
Pharma Corporation, G.R. No. 193494, March 12,
2014)
Instances when a party can be declared in
default
(1) Defendant who fails to answer a
complaint within the reglementary period
• Exception:
(a) In an amended complaint – an answer
earlier filed may serve as the answer to
the amended complaint if no new answer
is filed (Rule 11, Sec. 3)
(b) In a supplemental complaint – an
answer to the complaint shall serve as
the answer to the supplemental
complaint if no new or supplemental
answer is filed (Rule 11, Sec. 7)
compulsory counterclaim
• Exception:
(a) A counterclaim need not be answered
where the answer would be a repetition
of the allegations in the complaint
(Navarro vs. Bello, G.R. No. L-11647,
January 31, 1958)
(b) Where the issues raised in the
counterclaim are inseparable from
those posed in the complaint (Sarmiento
v. Juan, G.R. No. L-56605 January 28,
1983) or where the issues raised in the
counterclaim are deemed
automatically joined by the
114
 allegations in the complaint (Gojo v.
Goyala, G.R. No. L-26768 October 30,
1970)
(3) Defendant who fails to answer a
permissive counterclaim within the
reglementary period;
(4) Defendant who fails to answer a cross-
claim within the reglementary period;
(5) Defendant who fails to answer third
(fourth, etc) party complaint within the
reglementary period.
Requisites before a party can be declared in
default (AFaMNoPH)
(1) The court has validly Acquired jurisdiction
over the person of the defending party either
by service of summons or voluntary
appearance (Sablas vs. Sablas, G.R. No.
144568, July 3, 2007);
(2) The defending party Fails to answer within
the time allowed (Rule 9, Sec. 3);
(3) The plaintiff or claiming party must file a
Motion to declare the defendant in default
(Rule 9, Sec. 3)
(4) There must be Notice to the defending party
of such motion (Rule 9, Sec. 3);
(5) The claiming party must Prove that the
defending party has failed to answer within
the period provided by the Rules of Court
(Sablas vs. Sablas, G.R. No. 144568, July 3,
2007); and
(6) There must be a Hearing set on the motion
to declare the defending party in default
(Spouses de los Santos vs. Carpio, G.R. No.
153696, September 11, 2006)
No Motu Propio Declaration of Default
The rule on default requires the filing of a
motion and notice of such motion to the
defending party. It is not enough that the
defendant fails to answer the complaint within
the reglementary period. 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. (Sablas vs.
Sablas, G.R. No. 144568, July 3, 2007)
Answer may be admitted if there is no
Declaration of Order of Default
The rule is that the defendant's answer should
be admitted where it is filed before a
declaration of default and no prejudice is
caused to the plaintiff. Where the answer is filed
beyond the reglementary period but before the
defendant is declared in default and there is no
showing that defendant intends to delay the case,
the answer should be admitted. (Vitarich vs.
Dagmil G.R. No. 217138, August 27, 2020)
However, it is not mandatory on the part of the
trial court to admit an answer which is belatedly
filed even though the defendant is not yet
declared in default. It can be denied if the
defendant is guilty of inexcusable neglect and
deliberately employing delay in the prosecution of
the civil case against him. (Hernandez v. Agoncillo
G.R. No. 194122, October 11, 2012)
Dual Stages of Default:
(1) Order of Default
(2) Judgment by Default
(1) Order of Default
It is an Order issued by the court granting the
plaintiff’s motion at the start of the proceedings
for failure of the defendant to file his responsive
pleading within the reglementary period. (Tan,
Civil Procedure: A Guide for the Bench and the
Bar, Book I, 2020, p. 601)
Effect of an Order of Default
Effect to A party in default shall not take
the part in the trial; thus, he
Party in CANNOT:
Default
(a) Participate in the
proceedings;
(b) Present his defenses;
(c) Adduce evidence on his
behalf
(d) Cross-examine the witnesses
of the plaintiff; and
115
 (e) Object or refute evidence or
motions filed against him
(Otero vs. Tan, G. R. No.
200134, August 15, 2012).
Nevertheless, the party in default
is still entitled to notices of
subsequent proceedings (Rule 9,
Sec. 3[a])
A party in default may be cited as
a witness by his co-defendants
who have the standing and the
right to present evidence which
the former may provide. (Cavili
vs. Florendo, G.R. No. 73039,
October 9, 1987)
Effect to The court shall either:
the a. proceed to render judgment
Claiming granting the claimant such
Party / relief as his pleading may
Court’s warrant; OR,
action 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, 1st paragraph)
A declaration of Default does not imply
waiver of rights
A judgment of default does not imply a waiver of
rights except that of being heard and presenting
evidence in defendant's favor. It does not imply
admission by the defendant of the facts and
causes of action of the plaintiff. Nor could it be
interpreted as an admission by the defendant that
the plaintiff's causes of action find support in the
law or that the latter is entitled to the relief
prayed for. (Monarch Insurance vs. Court of
Appeals, G.R. No. 92735, June 8, 2000)
Thus, a party in default does not lose his or
her right to appeal on the main case. It is
important to note that a party declared in default
is not barred from 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. Tansipek, G.R. No. 181235, July 22,
2009)
Remedy of the Defaulting Party from an
Order of Default
Relief from Order of Default
What to Motion under oath to set aside
file? the order of default (Rule 9, Sec.
3[b])
When to At any time after notice of the
file? Order and before judgment
(Rule 9, Sec. 3[b])
Grounds The defaulting party must show:
(1) That his or her failure to
answer was due to
(FAMEN):
(a) Fraud;
(b) Accident;
(c) Mistake; or
(d) Excusable Negligence
AND
(2) That he or she has a
meritorious defense (Rule 9,
Sec. 3[b])
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).
Court’s The court may set aside the
action order of default on such terms
and conditions as the judge may
impose in the interest of justice.
(Rule 9, Sec. 3[b])

116
 Remedy (a) File a motion for should be resorted to only in clear cases
in case of reconsideration of the order of obstinate refusal or inordinate
denial denying the motion to set neglect in complying with the orders of
aside order of default; the court. Otherwise, any judgment by
(b) File a petition for certiorari default that the trial court may subsequently
under Rule 65 if the trial render is intrinsically void for having been
court improperly declared a rendered pursuant to a patently invalid order
party in default, or even if of default. (Vitarich v. Dagmil G.R. No.
the trial court properly 217138, August 27, 2020)
declared a party in default,
if grave abuse of discretion (2) Judgment by Default
attended such declaration
(Crisologo vs. Globe Default Judgment or Judgment by Default
Telecom Inc., G.R. No. It is a judgment rendered by the court on the case
167631, December 16,
after the defendant was declared in default. Such
2005)
Note: the defaulting party judgment is based on the plaintiff’s complaint or
cannot appeal from the Order of after receiving plaintiff’s evidence. (Rule 9, Sec.
Default because such order is 3)
interlocutory in nature
(Sitchon vs. Provincial Sheriff of General Rule Exceptions
Occidental Negros G.R. No. L- There can be no (a) If a disobedient
1853, February 27, 1948) judgment by default it party refuses to
there is no order of obey an order
Controlling Principles in Declaring a default triggered by requiring him to
Defendant in Default the failure of the comply with the
(a) It is within sound judicial discretion to defending party to file various modes of
set aside an order of default and to the Answer. discovery (Rule
permit a defendant to file his answer and to 29, Sec. 3[c]);
be heard on the merits even after the (b) If a party or
reglementary period for the filing of the officer or
answer has expired. managing agent
(b) This discretion should lean towards of a party
giving party-litigants every willfully fails to
opportunity to properly present their appear before
conflicting claims on the merits of the the officer who is
controversy without resorting to to take his
technicalities. deposition, or a
(c) Courts should be liberal in setting aside party fails to
orders of default, for default judgments serve answers to
are frowned upon, and unless it clearly interrogatories
appears that reopening of the case is (Rule 29, Sec. 5;
intended for delay, it is best that the trial (Riano, Civil
courts give both parties every chance to fight Procedure (The
their case fairly and in the open, without Bar Lecture
resort to technicality. Series), Vol. I, p.
(d) While there are instances when a party may 360, 2022)
be properly declared in default, these cases
should be deemed exceptions to the rule and

117
Extent of Relief in a Judgment by Default
A judgment rendered against a party in default
shall NEITHER (E-D-U):
(a) Exceed the amount of the relief prayed for
in the plaintiff’s complaint;
(b) be Different in kind from that prayed for; nor
(c) award Unliquidated damages. (Rule 9, Sec.
3[d])
Reason why unliquidated damages is not
awarded in Judgment by Default
The proscription against the award of
unliquidated damages is significant because it
means that the damages must be proved
convincingly in accordance with the quantum of
evidence required in civil cases. (Gajudo vs.
Traders Royal Bank, G.R. No. 151098, March 21,
2006)
Reliefs prayed for in the complaint are not
automatically granted in Judgment by
Default
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, March 31,
2006)
118
Remedies of a party against a Judgment by Default
PRIOR to the judgment becoming final and executory
Remedies: When to File
1. Motion for New Trial Within the period for taking an
under Rule 37 appeal or within 15 days from
notice of the default judgment
(Rule 37, Sec. 1)
2. Ordinary Appeal under Within 15 days from notice of the
Rule 41 default judgment; or within fresh
period of 15 days from notice of
denial of motion for new trial (Rule
41, Sec. 3)
AFTER judgment has become final and executory
Remedies When to file
1. Petition for Relief of Within 60 days after the petitioner
Judgment under Rule learns of the judgment and not
38, Sec. 1 more than six (6) months after
such judgment was entered (Rule
38, Sec. 3)
Note: A petition for relief from
judgment is filed after the default
judgment has become final and
executory. Thus, the filing of the
petition for relief from judgment
does not stay the execution of the
default judgment unless a writ of
preliminary injunction is issued
pending the petition’s resolution
2. Petition for Annulment If based on extrinsic fraud, within
of Judgment under four (4) years from its discovery;
Rule 47 and if based on lack of jurisdiction,
before it is barred by laches or
estoppel (Rule 47, Sec. 3)
3. Petition for Certiorari Not later than 60 days from notice
under Rule 65 of the judgment; or not later than
60 days from denial of the motion
for new trial (Rule 65, Sec. 4)
Grounds
Fraud, accident, mistake or excusable
negligence and the party has a
meritorious defense
(Lui Enterprises v. Zuellig Pharma
Corporation, G.R. No. 193494, March
12, 2014)
Judgment is contrary to law or to
evidence
(Lui Enterprises v. Zuellig Pharma
Corporation, G.R. No. 193494, March
12, 2014)
Grounds
Fraud, accident, mistake, or
excusable negligence and there must
be a substantial defense (Lui
Enterprises v. Zuellig Pharma
Corporation, G.R. No. 193494, March
12, 2014)
Available when the defaulted
defendant fails to file a petition for
relief, a petition for annulment of
judgment on the ground of lack of
jurisdiction or extrinsic fraud remains
available (Spouses Manuel v. Ong
G.R. No. 205249, October 15, 2014)
Grave abuse of discretion, when
improperly declared in default.
(Lui Enterprises vs. Zuellig Pharma
Corporation, G.R. No. 193494, March
12, 2014)
119
Effect of the Remedies
Remedy Effect
Motion to set The remedies of the motion to set aside order of default, motion for new trial, and
aside of petition for relief from judgment are mutually exclusive, not alternative or cumulative.
default, This is to compel defendants to remedy their default at the earliest possible
motion for opportunity. Depending on when the default was discovered and whether a default
new trial, judgment was already rendered, a defendant declared in default may avail of only one
and petition of the three remedies.
for relief
Upon the grant of a motion to set aside order of default, motion for new trial, or a
petition for relief from judgment, the defendant is given the chance to present
his or her evidence against that of plaintiff’s. (Lui Enterprises vs. Zuellig Pharma
Corporation, G.R. No. 193494, March 12, 2014)
Appeal The defaulted defendant may only assail the judgment on the ground that:
a. the amount of the judgment is excessive or
b. is different in kind from that prayed for, or
c. that the plaintiff failed to prove the material allegations of his complaint, or
d. that the decision is contrary to law.

Such party declared in default is proscribed from seeking a modification or reversal of

the assailed decision on the basis of the evidence submitted by him in the Court of
Appeals, for if it were otherwise, he would thereby be allowed to regain his right to
adduce evidence, a right which he lost in the TC when he was declared in default, and
which he failed to have vacated. (Arquero vs. Court of Appeals, G.R. No. 168053,
September 21, 2011) Thus, with an appeal, the defendant has NO right to present
evidence on his or her behalf (Lui Enterprises vs. Zuellig Pharma Corporation, G.R.
No. 193494, March 12, 2014)
Petition for Similar to an appeal, a petition for certiorari does not allow the defendant to present
Certiorari evidence on his or her behalf. The defendant can only argue that the trial court
committed grave abuse of discretion in declaring him or her in default.(Lui
Enterprises vs. Zuellig Pharma Corporation, G.R. No. 193494, March 12, 2014)
Note: Thus, should a defendant prefer to present evidence on his or her behalf, he or she must file
either a motion to set aside order of default, motion for new trial, or a petition for relief from judgment.
(Lui Enterprises v. Zuellig Pharma Corporation, G.R. No. 193494, March 12, 2014)

Table of Comparison: Order of Default vs. Judgment by Default

Order of Default Judgment by Default
As to when it is issued
It is an Order of the court granting the claiming It is a judgment rendered by the court on the case
party’s motion to declare the defendant in itself after the defendant was declared in default
default due to the latter’s failure to file his
Answer within the reglementary period
As to its nature
Interlocutory, non-appealable Final, appealable
As to its remedies
(1) Motion under oath to set-aside order of Before it becomes final and executory
default (1) Motion for new trial
(2) Motion for reconsideration (2) Appeal
After it becomes final and executory

120
(3) Petition for certiorari, if there is grave abuse (1) Petition for relief of judgment
of discretion (2) Annulment of judgment
(3) Petition for certiorari

Partial Default submitted is not fabricated. (Rule 9, Sec.

3[e])
Partial Default happens when:
(1) There is a pleading that asserts a common Other instances when Declaration of
cause of action against several defending Default is not allowed:
parties;
(2) Some defendants filed and served their (1) Small Claims under the Expedited Rules
answers; and (Rule IV, Sec. 14, A.M. 08-8-7-SC, effective
(3) Other defendant(s) failed to file his or her April 11, 2022);
answer (Rule 9, Sec. 3[c]) (2) Summary Procedure under the Expedited
Rules (Rule II, Sec. 2i, A.M. 08-8-7-SC,
Effect of Partial Default effective April 11, 2022);
(1) An Order of Default may be issued against (3) Rules on the Writ of Amparo (A.M. No. 07-9-
the defendants who failed to file an Answer; 12-SC, Sec. 11h);
(2) The defendant declared in default shall not (4) Rules on the Writ of Habeas Data (A. M. No.
be allowed to participate in the trial, but are 08-1-16-SC, Sec. 13h);
entitled to notice of subsequent (5) In expropriation proceedings;
proceedings. Thus, they cannot present (6) Special civil actions for certiorari, prohibition
evidence on their behalf, and object on the and mandamus where a comment instead of
evidence presented against them; an answer is required to be filed
(3) As to the action of the court, Default
Judgment and reception of evidence ex (5) AMENDED AND SUPPLEMENTAL
parte shall be refrained. This is because the PLEADINGS (Rule 10)
court shall try the case against all
defendants based upon the Answers filed of Amended Pleading vs. Supplemental
the non-defaulting defending parties; Pleading
(4) Thus, the non-defaulting defendants are
entitled to present their evidence, participate
during the trial, and the court shall render Amended Pleading Supplemental
judgment upon the evidence presented. Pleading
(Rule 9, Sec. 3[c]) As to Meaning
Amendment is the A supplementary
correction of an error pleading is the one
Where No Default is Allowed
or mistake or that sets forth
Default is not allowed in the following cases:
inadequacy (Rule 10, transactions,
(1) Action for Annulment; Sec. 1) committed in occurrences or events
(2) Declaration of nullity of marriage; the pleading which which have happened
(3) Legal separation refers to facts existing since the date of the
If the defending party fails to answer, the court at the time of the pleading sought to be
shall order the Solicitor General or his or her commencement of supplemented (Rule
deputized public prosecutor to: the action. 10, Sec. 6)
(a) investigate whether or not a collusion As to purpose
between the parties exists, and Amendments are To bring into the
(b) if there is no collusion, to intervene for the allowed so that the records new facts
State in order to see to it that the evidence actual merits of the which will enlarge or

121
controversy may change the kind of
speedily be relief to which the
determined without plaintiff is entitled.
regard to (Ada v. Baylon, G.R. AMENDED PLEADING
technicalities, and in No. 182435 August
the most expeditious 13, 2012)
and inexpensive Ways to amend a pleading:
manner
(Central bank Board (1) By adding or striking out
of Liquidators vs. (a) An allegation; or
Banco Filipino (b) Name of any party
Mortgage and Savings
Bank, GR No. 173399, (2) By correcting:
February 21, 2017) (a) A mistake in the name of a party; or
(b) A mistaken or inadequate allegation or
The courts should be (c) A mistaken or inadequate description in
liberal in allowing any other respect (Rule 10, Sec. 1)
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.
(Tiu v. Phil. Bank of
Communication, G.R.
No. 151932, August
19, 2009)
How Made
(1) Amendment as a Upon motion with
matter of right leave of court, upon
(Rule 10, Sec. 2) reasonable notice to
(2) Amendment by all parties, and upon
leave of court such terms as are just
(Rule 10, Sec. 3) (Rule 10, Sec. 6)
Effect to the previous pleading
Admission of the The previous pleading
amended pleading is not superseded, it
supersedes the merely supplies the
previous pleading that deficiencies of the
it amends. (Rule 10, previous pleading
Sec. 8) (Asset Privatization
Trust vs. CA, G.R. No.
81024, February 3,
2000)

122
Kinds of Amendment
A. As to its Classification
Formal Amendment Substantial Amendment
As to its nature
Amendments which are not prejudicial to a Amendments which are prejudicial to a party or those
party, such as: which introduce a change of theory

(a) defect in the designation of the parties, The test as to whether a defendant is prejudiced by the
and amendment is whether a defense under the information
(b) other clearly clerical or typographical as it originally stood would be available after the
errors (Rule 10, Sec. 4) amendment is made, and whether any evidence
defendant might have would be equally applicable to the
information in the one form as in the other. (Ricarze vs.
Court of Appeals, G.R. No. 160451, February 9, 2007)
As how amendment is made
It may be summarily corrected by the court at Always by motion of a party, either as a matter of right
any stage of the action, at its own initiative or or with leave of court
on motion, provided no prejudice is caused (Rule 10, Sec. 2 and 3)
thereby to the adverse party (Rule 10, Sec. 6)

B. As to when and how it can be availed

Amendment as a Matter of Right Amendment by Leave of Court

(Rule 10, Sec. 2) (Rule 10, Sec. 3)
When available
(a) Before a responsive pleading is (a) Substantial amendments after service of a
served; or responsive pleading and before judgment;
(b) In the case of a reply, at any time (b) Substantial amendments beyond the 10 calendar
within 10 calendar days after it is day period in case of a reply;
served. (c) Second and subsequent amendments before a
responsive pleading has been served
Note: Even if the responsive pleading has
already been filed before the court but the
claiming party has not yet been served of such
pleading, he or she can still amend the
pleading as a matter of right because the
Rules used the term “served” and not “filed”.

Note: A motion to dismiss is not a responsive

pleading and does not preclude the exercise
of the plaintiff’s right to amend his complaint.
(Remington Industrial Sales vs. CA, G.R. No.
133657, May 29, 2002)
How many times can it be availed
Only once No limitation provided by the Rules
What kind of amendment can be made
Either formal or substantial Substantial amendment

123
A party has the absolute right to amend his
pleading, regardless of whether a new cause
of action or change in theory is introduced
(Bautista v. Maya-Maya Cottages Inc., G.R.
No. 148411, November 29, 2005)
Procedure
File a Motion to Amend Pleading attaching a
new copy of the entire pleading, incorporating
the amendments, which shall be indicated by
appropriate marks (Rule 10, Sec. 7)
a. File a Motion to Amend Pleading with leave of court
attaching a new copy of the entire pleading,
incorporating the amendments, which shall be
indicated by appropriate marks (Rule 10, Sec. 7);
b. There must be notice to the adverse party and proof
of service;
c. The adverse party must be given opportunity to be
heard and to file his/her opposition;
d. Hearing is discretionary upon the court (Rule 10,
Sec. 3 cross reference with Rule 15, Sec.5, 6 and 7)

Note: A motion to amend pleading after a responsive

pleading has been filed is a litigious motion under Rule
15, Sec. 5(6).
When shall amendment be refused
It cannot be refused by the court because it is Such leave shall be refused if it appears to the court
a matter of right. that:
a. The motion was made with intent to delay the
Note: A fair reading of jurisprudence proceeding;
recognizes the right of pleader to amend his b. The motion was made to confer jurisdiction on the
complaint before a responsive pleading is court; or
served even if its effect is to correct a c. The pleading stated no cause of action from the
jurisdictional defect. The argument that the beginning which could be amended. (Rule 10, Sec.
court cannot allow such type of amendment 3)
since the court must first possess jurisdiction
over the subject matter of the complaint Note: Insufficiency of the complaint to state the cause
before it can act on any amendment has no of action may be cured by evidence presented during
application upon an amendment that is made the trial without objection, when impliedly or expressly
as a matter of right. (Riano, Civil Procedure consented by the parties. In such a case, no
(The Bar Lecture Series), Vol. I, p. 396, 2022) amendment is necessary. (Rule 10, Sec. 5; Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 392, 2022)

However, a complaint whose cause of action has not yet

accrued cannot be cured or remedied by an amended
or supplemental pleading alleging the existence or
accrual of a cause of action while the case is pending.
(Swagman Hotels vs. CA, G.R. No. 161135. April 8,
2005)

Thus, the curing effect under Rule 10, Sec. 5 is

applicable only if a cause of action in fact exists at the
time the complaint is filed, but the complaint is defective
for failure to allege the essential facts. (Ibid.)

124
 Remedy in case of denial
The remedy of a party is mandamus when the Order of denial is interlocutory, thus, not appealable. If
court refuses to admit an amended pleading there is grave abuse of discretion in the denial, file
when its exercise is a matter of right because motion for reconsideration, then Petition for Certiorari
the trial court’s duty to admit an amended under Rule 65.
complaint made as a matter of right is purely
ministerial (Alpine Lending Investors vs.
Corpuz, G.R. No. 157107, November 24,
2006)

Liberal treatment on amendments
As a matter of judicial policy, courts are impelled
to treat motions for leave to file amended
pleadings with liberality. This is especially true
when a motion for leave is filed during the early
stages of proceedings or, at least, before
trial. Our case law had long taught that bona
fide amendments to pleadings should be allowed
in the interest of justice so that every case may,
so far as possible, be determined on its real facts
and the multiplicity of suits thus be
prevented. 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 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)
Effect of amended pleading (SOW)
(1) It 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).
No amendment necessary to conform to or
authorize presentation of evidence
Rule 10, Section 5 provides that when issues not
raised by the pleadings are tried with the express
or implied consent of the parties, they shall be
treated in all respects as if they had been raised
in the pleadings. No amendment of such
pleadings deemed amended is necessary to cause
them to conform to the evidence.
Note: This is a new rule introduced by the
Amended Rules. The old rule provided that in a
situation where issues not raised in the pleadings
were tried with the consent of the parties, the
pleadings should be subsequently amended on
motion of a party to conform to evidence.
Conditions to be applicable
(1) There is an issue not raised in the pleading;
(2) But the issue was tried with express or
implied consent of the parties;
(3) The issue shall be treated as if it has been
raised in the pleading;
(4) As such, amendment of the pleading is no
longer necessary to cause them to conform
to the evidence because it shall be treated in
all respects as if they had been raised in the
pleadings even if not actually previously
raised in the pleading.
Effect when there is implied or express
consent to try the case
(1) The court cannot sustain an objection of a
party, who expressly or impliedly consented
to try the issue, on the ground that the
evidence offered is not within the issues
made by the pleadings because the pleading
is already deemed conformed to the
evidence as if the issue was raised in the
pleading;
(2) This is an exception to the general rule that
a court cannot render judgment on a matter

125
 not in issue because a judgment must
conform to the pleadings and the theory of
the action under which the case was tried.
(Riano, Civil Procedure (The Bar Lecture
Series), Vol. I, p. 393, 2022)
Rule 10, Sec. 5 envisions two situations:
(1) When evidence is introduced on an issue not
alleged in the pleadings and no objection
was interposed by the other party;
(2) When evidence is offered on an issue not
raised in the pleadings but an objection was
interjected. The rule in this scenario is that
the court may, nevertheless, admit the
evidence where the objecting party fails to
show that the admission of the evidence
would prejudice him in his defense. The
court must, however, give him a continuance
to enable him to meet the new situation.
(Riano, Civil Procedure (The Bar Lecture
Series), Vol. I, p. 394, 2022)
Supplemental Pleadings
A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
happened since the date of the pleading sought
to be supplemented. (Rule 10, Sec. 6)
Procedure
(1) The party must file a motion with leave of
court;
(2) There must be notice to all parties;
(3) The supplemental pleadings shall set forth
transactions, occurrences or events which
have happened since the date of the
pleading sought to be supplemented;
(4) The court may allow the pleading only upon
such terms as are just; and
(5) The adverse party may plead thereto within
ten 10 days from notice of the order
admitting the supplemental pleading (Rule
10, Sec. 6)
Note: Under Rule 11, Sec. 7, a supplemental
complaint may be answered within 20 calendar
days from notice of the order admitting the same,
unless a different period is fixed by the court. The
answer to the complaint shall serve as the answer
to the supplemental complaint if no new or
supplemental answer is filed. Thus, the adverse
party is not required to answer to the
supplemental pleading.
When Supplemental Pleading is
inadmissible
When the cause of action stated in the
supplemental complaint is different from the
cause of action mentioned in the original
complaint, the court should not admit the
supplemental complaint. The supplemental
complaint must be based on matters arising
subsequent to the original complaint related to
the claim or defense presented therein, and
founded on the same cause of action. It cannot
be used to try a new matter or a new cause of
action. (Leobrera vs. Court of Appeals, G.R. No.
80001 February 27, 1989)
Effect of Supplemental Pleading to the
Original Pleading
Supplemental pleading is meant to supply
deficiencies in aid of the original pleading and not
to dispense with or substitute the latter. It is not
like an amended pleading which is a substitute for
the original one. It does not supersede the
original but assumes that the original pleading is
to stand. The issues joined under the original
pleading remain as issues to be tried in the action.
(Asset Privatization Trust vs. CA, G.R. No. 81024,
February 3, 2000)
126
(6) WHEN TO FILE RESPONSIVE PLEADINGS (Rule 11)
Periods of Filing Pleadings

Summary of Periods to Respond in Relation to Who Files and the Kind of Responsive
Pleading:
ANSWER TO A COMPLAINT

As a general rule
Period Reckoning Point
General Rule (GR): Within 30 Calendar Days (CD) From service of summons (Rule 11, Sec. 1)
Exception (XPN):
a. unless a different period is fixed by the court
b. when the court allows additional period of not
more than 30 calendar days under meritorious
circumstances (Rule 11, Sec. 11)
When Defendant is a Foreign Private Juridical Entity (FPJE)
Circumstance To whom service Period Reckoning point
was made
The FPJE has a resident Service was made on Within 30 calendar days From service of
agent the resident agent summons to such
resident agent
(Rule 11, Sec. 1
applies)
The FJPE has no Service was made on Within 30 calendar days From service of
resident agent but has such agent, director or summons (Rule 11,
an agent, director, or trustee Sec. 1 applies)
trustee in the
Philippines
The FJPE has no Service of summons is Within 60 calendar days From receipt of
resident agent and no made on the summons by the FJPE
director or trustee in government official (Rule 11, Sec. 2)
the Philippines designated by law to
receive the same
The FJPE has no Summons had been Within 60 calendar days From service of
resident agent and no served through summons (Riano, Civil
director or trustee in extraterritorial service Procedure (The Bar
the Philippines Lecture Series), Vol. I,
p. 347, 2022)
Under specific circumstances
Circumstance Period Reckoning Point
(a) Defendant’s identity or Within a the time specified by the From notice of such
whereabouts are unknown and court, which shall not be less than service
service of summons was 60 calendar days
effected through publication
(Rule 14, Sec. 16)

127
 (b) Defendant does not reside and Within a the time specified by the From notice of such
is not found in the Philippines in court, which shall not be less than service
actions in rem or quasi-in-rem 60 calendar days
and service of summons was
made through extraterritorial
service or by publication (Rule
14, Sec. 17)
(c) Defendant is a resident but Within a the time specified by the From notice of such
temporarily out of the court, which shall not be less than service
Philippines service of summons 60 calendar days
was made through
extraterritorial service or by
publication (Rule 14, Sec. 18)
(d) Defending party’s answer to a Within the period to which he or she If motion is granted:
complaint when such party filed was entitled at the time of filing his • From service of the
a prior Motion for Bill of or her motion, which shall not be Bill of Particulars
Particulars (Rule 12, Sec. 5) less than 5 calendar days in any If motion is denied
event • From notice of
denial
ANSWER TO AN AMENDED
COMPLAINT, COUNTERCLAIM, CROSS-CLAIM, THIRD PARTY COMPLAINT, and
COMPLAINT-IN-INTERVENTION (Rule 11, Sec. 3)
Circumstance Period Reckoning point
Amendment a matter of right Within 30 calendar days From service of the copy of the
(once before responsive amended complaint
pleading has been served) (Rule
11, Sec. 3)
Amendment not a matter of Within 15 calendar days From NOTICE of the order
right (made with leave of court) admitting the amended
(Rule 11, Sec. 3) (Note: An answer earlier filed complaint
may serve as the answer to the
amended complaint if no new
answer is filed)
OTHER RESPONSIVE PLEADINGS
Pleading Period Reckoning Point
Answer to Counterclaim Within 20 calendar days From service of the pleading
(Rule 11, Sec. 4)
Answer to Cross-claim Within 20 calendar days From service of the pleading
(Rule 11, Sec. 4)
Answer to third (fourth, etc) – Within 30 calendar days From service of summon
party complaint (Rule 11, Sec.
5)
Reply (Rule 11, Sec. 6) Within 15 calendar days Service of the pleading
responded to
Answer to a supplemental GR: Within 20 calendar days From notice of the order
complaint (Rule 11, Sec. 7) admitting the same
XPN: Unless a different period is
fixed by the court

128

Motion for Bill of Particulars
(Rule 12, Sec. 1)
Bill of Particulars (compliance to
the order granting the motion
for Bill of Particulars) (Rule 12,
Sec. 3)
Answer to a complaint-in-
intervention (Rule 19, Sec. 4)
Answer in Interpleader (Rule 62,
Sec. 5)
PERIOD TO FILE RESPONSIVE PLEADINGS UNDER THE EXPEDITED RULES
Pleading
Answer to complaint under
summary procedure
(AM No. 08-8-7-SC, Rule III,
Sec. 6, effective April 11, 2022)
Reply to counterclaim under
summary procedure
(AM No. 08-8-7-SC, Rule III,
Sec. 8, effective April 11, 2022)
Verified response to statement
of claims in small claims
(AM No. 08-8-7-SC, Rule IV,
Sec. 13, effective April 11, 2022)
(Note: The answer to the
complaint shall serve as the
answer to the supplemental
complaint if no new or
supplemental answer is filed)
Before responding to a pleading; From service of the pleading or
thus, within the same period of from notice of admission of
filing of responsive pleading pleading
(Example: motion for bill of
particulars for a complaint –
within 30 calendar days; motion
for bill of particulars for reply –
within 15 calendar days)
GR: Within 10 calendar days From notice of the order
admitting the motion of Bill of
XPN: Unless a different period is Particulars
fixed by the court
GR: Within 15 calendar days From notice of the order
admitting the complaint-in-
XPN: Unless a different period is intervention
fixed by the Court
Within 15 calendar days From service of summons
Period Reckoning Point
Within 30 calendar days From service of summons
Within 10 calendar days From receipt of the answer
Non-extendible period of 10 From receipt of summons
calendar days
129
Summary of Periods in Relation to Number of Days

Calendar Circumstance
Days
(1) Answer to a complaint where the FJPE has no resident agent and no director or trustee
in the Philippines and Summons had been served through extraterritorial service (Rule
11, Sec. 2)
Reckoning Point: from receipt of summons by the FJPE

(2) The FJPE has no resident agent and no director or trustee in the Philippines and
summons had been served through extraterritorial service (Riano, Civil Procedure (The
Bar Lecture Series), Vol. I, p. 347, 2022)
Reckoning Point: From service of summons

(3) Defendant’s identity or whereabouts are unknown and service of summon was effected
60
through publication (Rule 14, Sec. 16)
Reckoning Point: From notice of such service

(4) Defendant does not reside and is not found in the Philippines in actions in rem or quasi-
in-rem and service of summon was made through extraterritorial service or by
publication (Rule 14, Sec. 17)
Reckoning Point: From notice of such service

(5) Defendant is a resident but temporarily out of the Philippines service of summon was
made through extraterritorial service or by publication (Rule 14, Sec. 18)
Reckoning Point: From notice of such service
(1) General Rule on Answers to Complaints (Rule 11, Sec. 1)
Reckoning Point: From service of summons

(2) The FPJE has a resident agent and service was made on the resident agent (Rule 11,
Sec. 1 applies)
Reckoning Point: From service of summons

(3) The FJPE has no resident agent but has an agent, director, or trustee in the Philippines,
and service was made on such agent, director or trustee (Rule 11, Sec. 1 applies
Reckoning Point: From service of summons

30 (4) Answer to an amended complaint when amendment is a matter of right (Rule 11, Sec.
3)
Reckoning Point: From service of the copy of the amended complaint

(5) Answer to third (fourth, etc) party complaints (Rule 11, Sec. 5)
Reckoning Point: from service of the pleading

Answer to complaint under summary procedure (AM No. 08-8-7-SC, Rule III, Sec. 6,
effective April 11, 2022)
Reckoning Point: from service of summons

(6) Additional period for extension to file Answer (Rule 11, Sec. 11)

130
 Reckoning Point: from the time the court allows extension
(1) Answer to counterclaim (Rule 11, Sec. 4)
Reckoning Point: from service of the pleading

(2) Answer to cross-claim (Rule 11, Sec. 4)

20
Reckoning Point: from service of the pleading

(3) Answer to a supplemental complaint (Rule 11, Sec. 7)

Reckoning Point: From notice of the order admitting the same
(1) Answer to Amended Complaint when amendment is one with leave of court (Rule 11,
Sec. 3)
Reckoning Point: From notice of the order admitting the amended complaint

(2) Reply (Rule 11, Sec. 6)

Reckoning Point: Service of the pleading responded to
15
(3) Answer to a complaint-in-intervention (Rule 19, Sec. 4)
Reckoning Point: From notice of the order admission

(4) Answer in Interpleader (Rule 62, Sec. 5)

Reckoning Point: from service of summons
(1) Compliance to Order granting Bill of Particulars
Reckoning Point: from notice of order admitting the motion

(2) Reply to counterclaim under summary procedure (AM No. 08-8-7-SC, Rule III, Sec. 8,
effective April 11, 2022)
10
Reckoning Point: From receipt of the answer

(3) Verified Response to statement of claims in small claims (non-extendible) (AM No. 08-8-
7-SC, Rule IV, Sec. 13, effective April 11, 2022)
Reckoning Point: From receipt of summons
(1) When the court fixes a different period in the following instances:
• Answer to a Complaint (Rule 11, Sec. 1)
• Extension to file Answer to a Complaint (Rule 11, Sec. 11)
• Answer to a supplemental complaint (Rule 11, Sec. 7)
• Compliance to Bill of Particulars (Rule 12, Sec. 3)
• Answer to a Complaint-in-intervention (Rule 19, Sec. 4)

Other (2) Defending Party’s Responsive Pleading when such party filed a prior Motion for Bill of
Particulars (Rule 12, Sec. 5)
Period: Within the period to which he or she was entitled at the time of filing his or her
motion, which shall not be less than 5 calendar days in any event
Reckoning Point: from service of Bill of Particulars or from denial of motion

(3) Motion for Bill of Particulars

Period: Before filing of responsive pleading

131
Computation of “Calendar Days”
In computing a period, the first day shall be
excluded, and the last day included (Art. 13,
Civil Code). In counting “calendar days” periods,
Saturdays, Sundays and Legal Holidays are not
to be excluded, but included (SM Agri vs. NLRC
G.R. No. 74806, January 9, 1989).

132
RULES ON HOW TO SET-UP COUNTERCLAIM OR CROSS-CLAIM

RULES ON HOW TO SET-UP COUNTERCLAIM OR CROSS-CLAIM

When arises How to set up When to file
Existing counterclaim It happens when the cause The compulsory Filed as part of
or cross-claim (Rule of action of such counterclaim or cross- the Answer
11, Sec. 8) counterclaim or cross-claim claim shall be contained
is existing or arises at the in the Answer of the
time of filing of answer defending part.

Existing → contained in answer

When arises How to set up When to file
Counterclaim or It happens when the By supplemental Must be filed
cross-claim arising counterclaim or cross-claim pleading with before judgment
after the filing of the either matured or was permission of the court
answer (Rule 11, Sec acquired by a party after
9) serving his or her pleading
Arising after → by supplemental pleading filed before judgment
When arises How to set up When to file
Omitted It happens when the when justice requires, Must be filed
counterclaim or pleader fails to set-up an he or she may, by leave before judgment
cross-claim (Rule 11, existing counterclaim or of court, set up the
Sec. 10) cross-claim through: counterclaim or cross-
a. Oversight claim by amendment
b. Inadvertence
c. Excusable neglect
Omitted → amendment with leave of court filed before judgment

EXTENSION OF TIME TO FILE PLEADINGS

Note: Although a motion for extension to file
General Rule Exception pleading is a prohibited motion, the Rules gives
A motion for extension to A Motion for the court the discretion to allow other pleadings
file pleadings, affidavits, Extension to File
to be filed even after the time fixed by the Rules.
or any other papers is a an Answer is
prohibited motion and allowed provided (Rule 11, Sec. 11 cross-reference with Rule 15,
shall not be allowed by that the Sec. 12e)
the court. Such motion, if defendant has
filed, will be considered as meritorious MOTION FOR BILL OF PARTICULARS
a mere scrap of paper. reasons. (RULE 12)

Limitations for the grant of extension to Bill of Particulars is a complementary procedural

file an answer:
(1) The extension is for a period not more than
30 calendar days; and
(2) A defendant is only allowed to file one (1)
motion for extension to file an answer
document consisting of an amplification or more
particularized outline of a pleading (Enrile vs.
People, G.R. No. 213455, August 11, 2015).

133
Nature
A Motion for a Bill of Particulars is a formal and
litigious motion (Rule 15, Sec. 5) which must be
in writing and requires notice to the adverse party
and hearing.
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. (Rule 12, Sec. 1).
Purpose
(a) To aid in the preparation of a responsive
pleading
(b) To clarify matters in the complaint which are
vague, ambiguous or not averred with
sufficient definiteness.
An action cannot be dismissed on the ground that
the complaint is vague or indefinite. (M. M. De
Leon, Remedial Law Reviewer-Primer, 2021
Edition, p. 169)
The motion is NOT availed to:
(1) Enable the movant to prepare for trial or to
discover the evidence of the adverse party;
or
(2) Obtain evidentiary matter (Salita vs.
Magtolis, GR. No. 106429 June 13, 1994).
When to File a Motion for a Bill of
Particulars
(1) Before responding to a pleading.
The period to file the motion refers to the period
for filing the responsive pleading in Rule 11. Thus,
where the motion for bill of particulars is directed
to a complaint, the motion should be generally
filed within 30 calendar days after service of
summons.
If the motion is directed to a counterclaim or
cross-claim the same must be filed within 20
calendar days from service of the counterclaim or
cross-claim which is the period provided for under
Sec. 4, Rule 11.
(2) If the pleading is a reply, within 10
calendar days from service thereof. (Rule 12,
Sec. 10)
Motion for Bill of Particulars must be filed within
the reglementary period for the filing of a
responsive pleading. If sufficient in form and
substance, the filing of the motion will interrupt
the time to plead.
Instances where motion for bill of
particulars is not allowed
Motion for bill of particulars is prohibited under
the following cases, to wit:
(1) Intra-corporate Disputes;
(2) Cases under the Rules on Summary
Procedure;
(3) Cases under the Rules on Small Claims
Cases;
(4) Cases under the Rules on Environmental
Cases;
(5) Case under the Rules on Writ of Amparo;
(6) Cases under the Rules on Habeas Data.
(Tan, Civil Procedure: A Guide for the Bench
and the Bar, Book I, 2020, p. 673)
Actions of the Court
Upon the filing of the motion, the clerk of court
must immediately bring it to the attention of the
court, which may either:
(1) Grant the motion;
(2) Deny it outright; or
(3) Hold a hearing therein (Rule 12, Sec. 2; (M.
M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 169)
134
Compliance with the order
After service of the bill of particulars or of a more
General Rule Exception definite pleading, or after notice of denial of his
If the motion is When a different motion, the moving party may file his responsive
granted, either in period is fixed by the pleading within the period to which he was
whole or in part, the court. entitled at the time of filing his motion, which
compliance therewith
shall not be less than five (5) calendar days in any
must be effected
within 10 calendar event (Rule 12, Sec. 5).
days from notice of
the order. For example, if the movant has still 10 days to file
(Rule 12, Sec. 3) his responsive pleading at the time the motion for
bill of particulars was filed, then he has the same
In complying with the order, the pleader may file number of days to file his responsive pleading
the bill of particulars or a more definite statement from the service of the bill of particulars or from
either in a: the notice of the denial of his motion.
(a) A separate pleading; or
(b) In the form of an amended pleading. If however, he has less than 10 days to file his
pleading at the time the motion for bill of
In either case, a copy thereof is required to be particulars was filed, the period to file his
served upon the adverse party (Rule 12, Sec. 3). responsive pleading shall, nevertheless, be not
less than 5 days in any event.
Note: The bill of particulars submitted becomes
part of the pleading for which it is intended. Motion for Bill of Particulars: Grant vs.
(Rule 12, Sec. 6) Denial

Effect of Non-compliance
Motion for Bill of Motion for Bill of
Particulars is Particulars is
If the order is not obeyed, or in case of Granted Denied
insufficient compliance therewith, the court has
the following options: The movant may file The movant may file
(a) to order the striking out of the pleading; his or her responsive his or her responsive
(b) to order the striking out of the portions of pleading after service pleading after notice
the pleading to which the order was of the bill of of the denial of the
directed; or
particulars or a more motion.
(c) to make such other order it deems just (Rule
12, Sec. 4) definite pleading.

In any case, the movant may file his or her

Stay of Period to File Responsive Pleading
responsive pleading within the period to which
he or she was entitled at the time of filing his
If the Motion for Bill of Particulars is sufficient in
or her motion, which shall not be less than five
form and substance, the period to file responsive
(5) calendar days.
pleading is stayed or interrupted. (Riano, Civil
Procedure (The Bar Lecture Series), Vol. I, p. 466, (Rule 12, Sec. 5)
2022)

135
Illustration: Distinctions Between Motion Bill of
Particulars in Civil Cases (Rule 12) and in
Example 1: Criminal Cases (Rule 116)
B received the summons on January 1.
B filed a motion for bill of particulars on Motion for Bill of Motion for Bill of
January 15. Particulars Particulars in
He already consumed 14 days of the original Criminal Case
30-day period to file an Answer. Motion for Bill of Motion for bill of
Consequently, he still has 16 days to file an particulars under Rule particulars under Rule
Answer. 12 must be filed 116 must be filed
before the filing of a before arraignment.
On May 5, he received the bill of particulars responsive pleading
submitted by A or the order denying his or in case of a reply
motion. within 10 days from
receipt thereof.
Therefore, his last day for filing an Answer Motion for Bill of Motion for bill of
would be on MAY 10 which is 5 days from particulars under Rule particulars under Rule
receipt of the notice of the grant or denial of 12 is directed against 116 is directed
his motion for a bill of particulars. pleadings. against a criminal
Complaint or
Why not January 31 or why beyond the Information.
orginal 30 day period to file an answer?
In case of denial of While in case of denial
the motion for bill of of the motion for bill
Because the rule says, "shall not be less than
particulars under Rule of particulars under
5 days in any event" (Rule 12, Sec. 5)
12, the moving party Rule 116, the accused
Example 2: may file his may proceed with the
B received the summons on January 1. responsive pleading arraignment and
B filed a motion for bill of particulars on within the period he is enter his plea, unless
January 15. entitled to but in no the denial is tainted
He already consumed 14 days of the original case less than five with grave abuse of
30-day period to file an Answer. days, unless the discretion party may
Consequently, he still has 16 days to file an denial is tainted with file a petition for
Answer. grave abuse of certiorari.
discretion, hence,
On January 30, he received the bill of petition for certiorari.
particulars submitted by A or the order
(Tan, Civil Procedure: A Guide for the Bench and
denying his motion.
the Bar, Book I, 2020, pp. 676-677)
Therefore, his last day for filing an Answer
would be on FEB 4 which is 5 days from
receipt of the notice of the grant or denial of
his motion for a bill of particulars

Why not January 31 or why beyond the

orginal 30 day period to file an answer?

Because the rule says, "shall not be less than

5 days in any event" (Rule 12, Sec. 5)

136
G. FILING AND SERVICE (RULE 13)
Papers required to be filed and served
Summary table of Filing and Service (1) Judgment
Filing Service (2) Resolution
As to the act involved (3) Order
Filing is the act of Service is the act of (4) Pleading subsequent to the complaint
submitting the providing a party (Note: complaint is served together with
pleading or other with a copy of the the service of summons)
paper to the court pleading or any other (5) Written motions
(Rule 13, Sec. 2, 1st court submission. (6) Notices
par.) (Rule 13, Sec. 2, 2nd (7) Appearance
par.) (8) Demand
As to Mode or Manner (9) Offer of judgment; or
Generally: Generally: (10) Similar papers (Rule 13, Sec. 4)
(a) Submitting (a) Served
personally the personally; Filing
original thereof, (b) By registered
plainly indicated mail; Filing is the act of submitting the pleading or
as such, to the (c) Accredited other paper to the court (Rule 13, Sec. 2, 1st par.)
court; courier;
(b) Sending them by (d) Electronic mail;
registered mail; (e) Facsimile Manner of Filing
(c) Sending them by transmission;
accredited (f) Other electronic The filing of pleadings and other court
courier; means as may be submissions shall be made by:
(d) Transmitting authorized by the (a) Submitting personally the original thereof,
them by court; plainly indicated as such, to the court;
electronic mail or (g) As provided for in (b) Sending them by registered mail;
other electronic international (c) Sending them by accredited courier; or
means as may be conventions to (d) Transmitting them by electronic mail or
authorized by the which the other electronic means as may be authorized
court in places Philippines is a by the court in places where the court is
where the court party.(Rule 13, electronically equipped. (Rule 13, Sec. 3)
is electronically Sec. 5)
equipped. (Rule
13, Sec. 3)

Proof of Filing
Manner of Date of Filing
General Rule: Proved by its existence in the
Filing
record of the case (Rule 13, Sec. 16)
(1) Personal The clerk of court shall endorse If not in the record, the filing shall be proven by
filing on the pleading the date and hour the written or stamped acknowledgment of its
of filing (Rule 13, Sec. 3, 2nd filing by the clerk of court on a copy of the
par.) pleading or court submission (Rule 13, Sec. 16
[a])
(2) Registered The date of the mailing of Proven by:
mail motions, pleadings, and other 1. The registry receipt and
court submissions, and payments 2. By the affidavit of the person who mailed it

137
 or deposits, as shown by the post
office stamp on the envelope or
the registry receipt (Rule 13, Sec.
3, 2nd par.)
(3) Accredited The date of the mailing of
courier motions, pleadings, and other
court submissions, and
payments or deposits, as shown
by the post office stamp on the
envelope or the registry receipt
(Rule 13, Sec. 3, 2nd par.)
(4) Electronic The date of the electronic
mail transmission (Rule 13, Sec. 3,
2nd par.)
(5) Other The date of the electronic
authorized transmission (Rule 13, Sec. 3,
electronic 2nd par.)
means
Conventional Filing
The following pleadings are required to be filed
through conventional filing:
(1) Initiatory pleadings and initial responsive
pleadings, such as an answer;
(2) 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 conventionally; and
(3) Sealed and confidential documents or
records (Rule 13, Sec. 14)
Note: The Rules does not require item (b) to be
filed conventionally, it leaves the option to the
The affidavit shall contain a full statement of:
(a) the date and place of deposit of the mail in
the post office in a sealed envelope
addressed to the court,
(b) with postage fully prepaid, and
(c) with instructions to the postmaster to return
the mail to the sender after ten (10) calendar
days if not delivered. (Rule 13, Sec. 16 [b])
Proven by:
(1) An affidavit of service of the person who
brought the pleading or other document to
the service provider;
(2) together with the courier’s official receipt and
(3) document tracking number (Rule 13, Sec. 16
[c])
Proven by:
(1) An affidavit of electronic filing of the filing
party;
(2) accompanied by a paper copy of the pleading
or other document transmitted or
(3) a written or stamped acknowledgment of its
filing by the clerk of court. (Rule 13, Sec. 16
[d])
Proven by:
(1) An affidavit of electronic filing of the filing
party
(2) accompanied by a copy of the electronic
acknowledgment of its filing by the court.
(Rule 13, Sec. 16 [e])
party filing if he/she will file it conventionally)
(Rule 13, Sec. 14)
Conventional filing is made by:
(1) Filing personally to the court;
(2) By registered mail, only when allowed by the
court (Rule 13, Sec. 14)
The following manner of filing are not
allowed under conventional filing:
(1) Filing by accredited courier
(2) Electronic filing, unless express permission
is granted by the court. (Rule 13, Sec. 14)
138
Service appearing for to only one copy of any
one party pleading or paper
Service is the act of providing a party with a copy
of the pleading or any other court submission. If lead counsel is not
designated, service shall be
(Rule 13, Sec. 2, 2 par.)
nd
made upon any one of the
counsel who shall be
To whom service is made entitled to only one copy of
any pleading or paper (Rule
To whom service is 13, Sec. 2, 3rd par.)
Circumstance
made
If a party General Rule: Service shall Modes of Service
appeared by be upon his or her counsel
counsel Pleadings, motions, notices, orders, judgments,
Exception: When the court and other court submissions shall be served:
orders that service shall be
(1) Personal service;
made to both the party and
(2) By registered mail;
party’s counsel (Rule 13,
(3) Accredited courier;
Sec. 2, 2nd par.)
(4) Electronic mail;
If a party has Service shall be made to
(5) Facsimile transmission;
no counsel such party (Rule 13, Sec. 2,
1. Other electronic means as may be
2nd par.)
authorized by the court; or
One counsel Service shall be made to
2. As provided for in international
appearing for such counsel who is
conventions to which the Philippines is a
several parties entitled to only one copy of
party. (Rule 13, Sec. 5)
any paper served by the
opposite side (Rule 13, Sec.
2, 2nd par.) Note: Service by ordinary mail may be done if no
Several Service shall be made upon registry service is available in the locality of either
counsels the lead counsel, if the sender or the addressee (Rule 13, Sec. 7).
designated, who is entitled

Salient Point Modes of Service

1. Personal Service
How made (a) Personal delivery of a copy to the party or to the party’s counsel;
(b) Personal delivery of a copy to their authorized representative named in the
appropriate pleading or motion;
(c) By leaving the copy in his or her office with his or her clerk, or with a person
having charge thereof;
(d) If no person is found in his or her office, or his or her office is not known, or he
or she has no office, then by leaving the copy, between 8:00 AM and 6:00
PM, at the party’s or counsel’s residence, if known, with a person of
sufficient age and discretion residing therein (Rule 13, Sec. 6)
Completeness of Upon actual delivery (Rule 13, Sec. 15)
Service
Proof of Service (a) Written admission of the party served; or
(b) The official return of the server; or

139
 (c) The affidavit of the party serving, containing a statement of the date, place
and manner of service (Rule 13, Sec. 17)

2. Service by Registered Mail

How made (1) It shall be made by depositing the copy in the post office;
(2) It must be in a sealed envelope;
(3) It must be plainly addressed to the party or to the party’s counsel at his or
her office, if known, otherwise at his or her residence, if known
(4) The postage must be fully pre-paid, and;
(5) With instructions to the postmaster to return the mail to the sender after 10
calendar days if undelivered. (Rule 13, Sec. 7)
Completeness of Upon actual receipt by the addressee, or after five (5) calendar days from the
service date he or she received the first notice of the postmaster, whichever date is
earlier. (Rule 13, Sec. 15)
Proof of service (1) Affidavit of the person mailing stating the facts showing compliance with Rule
13, Sec. 7; and
(2) Receipt issued by the mailing office (Rule 13, Sec. 17[b])

3. Service by Ordinary Mail

How made If no registry service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail. (Rule 13, Sec. 7)
Completeness of Upon the expiration of ten (10) calendar days after mailing, unless the court
service otherwise provides. (Rule 13, Sec. 15)
Proof of Service Affidavit of the person mailing stating the facts showing compliance with Rule 13,
Sec. 7 (Rule 13, Sec. 17[a])

4. Service by accredited courier

How made The courier must be accredited by the Supreme Court under Administrative Order
No. 242-A-2020
Completeness of Upon:
service (a) actual receipt by the addressee, or
(b) after at least two (2) attempts to deliver by the courier service, or
(c) upon the expiration of five (5) calendar days after the first attempt to
deliver, whichever is earlier (Rule 13, Sec. 15)
Proof of 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 (Rule 13, Sec. 17[c])
When not When conventional service is required (Rule 13, Sec. 14)
allowed

5. Service by Electronic Mail or other electronic means

How Made (a) The party must consent to such mode of service;

140
 (b) For service by other electronic means, it must be authorized by the court;
(c) It shall be made by sending an e-mail to the party’s or counsel’s electronic
mail address, or through other electronic means of transmission as the
parties may agree on, or upon direction of the court;
(d) Prescribed format: case number, case title and the pleading, order or document
title. The title of each electronically-filed or served pleading or other document,
and each submission served by facsimile shall contain sufficient information to
enable the court to ascertain from the title: (a) the party or parties filing or
serving the paper, (b) nature of the paper, (c) the party or parties against whom
relief, if any, is sought, and (d) the nature of the relief sought. (Rule 13, Sec.
9; Rule 13, Sec. 12)
Completeness of At the time of the electronic transmission of the document, or when available,
Service at the time that the electronic notification of service of the document is
sent. Electronic service is not effective or complete if the party serving the
document learns that it did not reach the addressee or person to be served (Rule
13, Sec. 15)
Proof of service Affidavit of service executed by the person who sent the e-mail or other
electronic transmission, together with a printed proof of transmittal. (Rule 13,
Sec. 17[d])
When not (1) When not consented by the party (Rule 13, Sec. 9)
allowed (2) When other electronic means is not authorized by the court (Rule 13, Sec 5.
provides “as may be authorized by the court”)
(3) Service of judgments, final orders or resolutions (Rule 13, Sec. 13)
(4) When conventional service is required (Rule 13, Sec. 14)
(5) When the Rules provides for other specific modes of service.
Change of A party who changes his or her electronic mail address or facsimile number while
electronic mail the action is pending:
address (1) must promptly file, within five (5) calendar days from such change;
(2) there must be a notice of change of e-mail address or facsimile number with the
court;
(3) the notice shall be served on all other parties;

Service through the electronic mail address shall be presumed valid unless such
party notifies the court of any change, as aforementioned. (Rule 13, Sec. 11)

6. Service by Facsimile
How made: (1) The party must consent to such mode of service
(2) Service by facsimile shall be made by sending a facsimile copy to the party’s or
counsel’s given facsimile number (Rule 13, Sec. 9)
Completeness of Upon receipt by the other party, as indicated in the facsimile transmission
service printout. (Rule 13, Sec. 15)
Proof of Service Affidavit of service executed by the person who sent the facsimile transmission,
together with a printed proof of transmittal. (Rule 13, Sec. 17[d])
When not (1) When not consented by the party (Rule 19, Sec. 9)
allowed (2) Service of judgments, final orders or resolutions (Rule 13, Sec. 13)
(3) When conventional service is required (Rule 13, Sec. 14)
(4) When the Rules provides for other specific modes of service.

141
 Change of Same with change of electronic mail address (Rule 13, Sec. 11)
facsimile number

7. Service as provided for in international conventions

Example Hague Service Convention on the Service Abroad of Judicial Documents in Civil and
Commercial Matters – (See A.O. 251-2020, September 11, 2020)

Matrix on Mode of Service

Mode of Service How made
Personal (a) Personal delivery of a
Service copy to the party or to
the party’s counsel;
(b) Personal delivery of a
copy to their authorized
representative named
in the appropriate
pleading or motion;
(c) By leaving the copy in his
or her office with his or
her clerk, or with a
person having charge
thereof;
(d) If no person is found in
his or her office, or his or
her office is not known, or
he or she has no office,
then by leaving the
copy, between 8:00 AM
and 6:00 PM, at the
party’s or counsel’s
residence, if known,
with a person of
sufficient age and
discretion residing
therein (Rule 13, Sec. 6)
Service by (1) It shall be made by
Registered Mail depositing the copy in
the post office;
(2) It must be in a sealed
envelope;
(3) It must be plainly
addressed to the party
or to the party’s
counsel at his or her
office, if known,
Completeness of
Proof of Service
Service
Upon actual delivery (a) Written
(Rule 13, Sec. 15) admission of the
party served; or
(b) The official return
of the server; or
(c) The affidavit of
the party serving,
containing a
statement of the
date, place and
manner of service
(Rule 13, Sec. 17)
Upon actual receipt 1. Affidavit of the
by the addressee, or person mailing
after five (5) stating the facts
calendar days from showing compliance
the date he or she with Rule 13, Sec.
received the first notice 7; and
of the postmaster, 2. Receipt issued by
whichever date is the mailing office
earlier. (Rule 13, Sec. (Rule 13, Sec.
15) 17[b])

142
 otherwise at his or her
residence, if known
(4) The postage must be
fully pre-paid, and;
(5) With instructions to
the postmaster to
return the mail to the
sender after 10 calendar
days if undelivered.
(Rule 13, Sec. 7)
Service by If no registry service is Upon the expiration of Affidavit of the person
Ordinary Mail available in the locality of ten (10) calendar mailing stating the facts
either the sender or the days after mailing, showing compliance
addressee, service may be unless the court with Rule 13, Sec. 7
done by ordinary mail. (Rule otherwise provides. (Rule 13, Sec. 17[a])
13, Sec. 7) (Rule 13, Sec. 15)
Service by The courier must be Upon: Affidavit of the person
accredited accredited by the Supreme (a) actual receipt by mailing stating the facts
courier Court under Administrative the addressee, or showing compliance
Order No. 242-A-2020 (b) after at least two with Rule 13, Sec. 7
(2) attempts to (Rule 13, Sec. 17[a])
deliver by the
courier service, or
(c) upon the
expiration of five
(5) calendar days
after the first
attempt to deliver,
whichever is
earlier (Rule 13,
Sec. 15)
Service by (a) The party must consent At the time of the Affidavit of service
Electronic Mail to such mode of service; electronic executed by the person
or other (b) For service by other transmission of the who sent the e-mail or
electronic electronic means, it must document, or when other electronic
means be authorized by the available, at the time transmission, together
court; that the electronic with a printed proof
(c) It shall be made by notification of of transmittal. (Rule
sending an e-mail to the service of the 13, Sec. 17[d])
party’s or counsel’s document is sent.
electronic mail address, Electronic service is not
or through other effective or complete if
electronic means of the party serving the
transmission as the document learns that it
parties may agree on, did not reach the
or upon direction of addressee or person to
the court (Rule 13, Sec. be served (Rule 13, Sec.
9; Rule 13, Sec. 12) 15)

143
 Service by (1) The party must consent Upon receipt by the Affidavit of service
Facsimile to such mode of service; other party, as indicated executed by the person
(2) Service by facsimile shall in the facsimile who sent the facsimile
be made by sending a transmission transmission, together
facsimile copy to the printout. (Rule 13, with a printed proof
party’s or counsel’s Sec. 15) of transmittal. (Rule
given facsimile number 13, Sec. 17[d])
Service as Example: Hague Service
provided for in Convention on the Service
international Abroad of Judicial Documents
conventions in Civil and Commercial
Matters – (See A.O. 251-
2020, September 11, 2020)

Substituted Service of Pleadings and Other Substituted It can be made for

Papers service can be justifiable causes; if
made only after the defendant cannot be
failure of service served personally after at
Condition for substituted service to apply
by person and least three (3) attempts
service by mail on two (2) different dates
It happens when service of pleadings, motions, because the office (Rule 14, Sec. 6).
notices, resolutions, orders and other papers and place of
CANNOT be made personally or by mail because residence of the Said attempts must be
the office and place of residence of the party party or his or her done within thirty (30)
or his or her counsel being unknown. (Rule 13, counsel being calendar days from issue
unknown. (Rule and receipt of summons
Sec. 8)
13, Sec. 8) (Rule 14, Sec. 20)

Note: Judgments and finals orders cannot be

Doctrine of Actual Notice
served by substituted service (Rule 13, Sec. 13)
As a general rule, formal service is necessary. The
Substituted service may be made by:
exception is when there is actual notice even
(1) Delivering the copy to the clerk of court,
if no formal service was made. If there is
(2) With proof of failure of both personal service
and service by mail. actual notice, a party cannot invoke due process
on the basis of a feigned ignorance as the lack of
The service is complete at the time of such formal notice cannot prevail against the fact of
delivery. (Rule 13, Sec. 8) actual notice. (Hernal v. De Guzman, G.R. NO.
181568, June 26, 2008)
Substituted Service of Pleadings
distinguished from Substituted Service of Presumptive Service
Summons There shall be presumptive notice to a party of a
court setting if such notice appears on the records
Substituted to have been mailed at least twenty (20) calendar
Substituted Service of days prior to the scheduled date of hearing and if
Service of
Summons
Pleadings the addressee is from within the same judicial
region of the court where the case is pending, or

144
at least thirty (30) calendar days if the addressee
is from outside the judicial region. (Rule 13, Sec.
10)
What is It is presumed that notice of
presumed a court setting has been
served to a party.
The said party is presumed
to have received the notice
of a court setting.
When does When it appears on the
the records that notice have
presumption been mailed:
arise • At least 20 calendar days
prior to the scheduled
date of hearing if the
addressee is within the
same judicial region of the
court where the case is
pending
• At least 30 calendar days
prior to the scheduled
date of hearing if the
addressee is from
outside the judicial
region
Effect • If the number of days is
satisfied, then a party will
be deemed to have
received the notice of
hearing and his or her
failure to appear may
cause the court to issue a
show cause order (Riano,
Civil Procedure (The Bar
Lecture Series), Vol. I, p.
330, 2022).
• Since there is a through conventional service:
presumption, it is upon
the party alleging that no
notice was served to
prove by clear and
convincing evidence that
service was not really
made.
Service of Judgment, Final Orders or
Resolution
Judgments, final orders or resolutions shall be
served by:
(1) Personal service;
(2) Registered mail;
(3) Accredited courier, upon ex parte motion of
any part and at his or her expense;
(4) Publication at the expense of the prevailing
party if a party summoned by publication has
failed to appear in the action (Rule 13, Sec.
13)
Note: Judgment, final orders or resolutions issued
by the court cannot be served through electronic
modes or facsimile.
Service of court-issued orders and other
documents
The court may electronically serve orders and
other documents to all the parties in the case
which shall have the same effect and validity as
provided herein.
A paper copy of the order or other document
electronically served shall be retained and
attached to the record of the case. (Rule 13, Sec.
18)
Exception: Final orders cannot be served
electronically (Rule 13, Sec. 13)
Conventional Service
The following pleadings are required to be served
(a) Initiatory pleadings and initial responsive
pleadings, such as an answer;
(b) Subpoena, protection orders, and writs;
(c) Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning may, at the option of the
party filing such, be filed conventionally; and
(d) Sealed and confidential documents or records
(Rule 13, Sec. 14)
145
Note: the Rules does not require item (c) to be case is pending, (2) initial responsive
served conventionally, it leaves the option to the or pleadings, such
party filing if he/she will file it conventionally. as an answer;
(Rule 13, Sec. 14) (2) at least thirty (3) Subpoena,
(30) calendar protection
days if the orders, and
How conventional service is made addressee is writs;
from outside the (4) Appendices and
(1) Personal service; judicial region. exhibits to
(2) By registered mail, only when allowed by the (n) motions, or
court (Rule 13, Sec. 14) (5) other documents
that are not
The following modes of service are NOT readily amenable
allowed under conventional service: to electronic
scanning may, at
the option of the
(1) Service by accredited courier party filing such,
(2) Electronic mail and other electronic means, be filed and
unless express permission is granted by the served
court. conventionally;
(3) Facsimile transmission (Rule 13, Sec. 14) and Sealed and
confidential
Presumptive vs Conventional documents or
records.
Presumptive Conventional
service. service or filing of
(Rule 13, Sec. 10) orders, pleadings
and other
documents.
(Rule 13, Sec. 14)
There shall be GR: Notwithstanding
presumptive notice to the foregoing, the
a party of a court following orders,
setting pleadings, and other
documents must be
if such notice appears served or filed
on the records to personally or by
have been mailed registered mail
(1) at least when allowed, and
twenty (20) shall not be served
calendar days or filed
prior to the electronically,
scheduled date
of hearing and if XPN: unless
the addressee is express permission
from within the is granted by the
same judicial court:
region of the (1) Initiatory
court where the pleadings and

146
Notice of Lis Pendens
Notice of lis pendens is an announcement to the
whole world that a particular property is in
litigation, serving as a warning that one who
acquires an interest over the said property does
so at his own risk, or that he gambles on the
result of the litigation over the said property (AFP
Mutual Benefit Association, Inc., vs. CA, G.R. NO.
104769, March 3, 2000)
When In an action affecting the title or
applicable the right of possession of real
property.
A notice of lis pendens is proper
in the following case:
(1) An action to recover
possession of real estate;
(2) An action to quiet title
thereto;
(3) An action to remove clouds
thereon;
(4) An action for partition; and
(5) Any other proceedings of
any kind in Court directly
affecting the title to the land
or the use or occupation
thereof or the buildings
thereon. (Heirs of Lopez Sr.
vs. Enriquez, G.R. No.
146262, January 21, 2005)
Procedure Who shall make the notice:
• the plaintiff, and the
defendant when affirmative
relief is claimed in his or her
answer
How and where
• by recording in the office of
the registry of deeds of the
province in which the property
is situated a notice of the
pendency of the action
• Said notice shall contain:
(a) the names of the parties;
(b) the object of the action
or defense; and
(c) a description of the
property in that province
affected thereby. (Rule
13, Sec. 19)
Effect Only from the time of filing such
notice for record shall a
purchaser, or encumbrancer of
the property affected thereby,
be deemed to have constructive
notice of the pendency of the
action, and only of its pendency
against the parties designated
by their real names. (Rule 13,
Sec. 19)
How It may be cancelled only upon
cancelled order of the court
Grounds:
After proper showing that the
notice is:
(a) for the purpose of molesting
the adverse party; or
(b) that it is not necessary to
protect the rights of the
party who caused it to be
recorded. (Rule 13, Sec. 19)
1. Rules on Payment of Docket Fees; Effect
of Non-Payment
Payment of Docket Fees
Upon the filing of the pleading or other
application which initiates an action or
proceeding, the fees prescribed therefor shall be
paid in full. (Rule 141, Sec. 1)
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payment
of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or
nature of the action (Manchester vs. CA, G.R. No.
75919 May 7, 1987).
Rules on Payment
The Strict Rule
147
 The Manchester Doctrine
The Court acquires jurisdiction over the case
only upon full payment of the prescribed
docket fees. Unless the full and correct
docket fees have been paid, the court will not
acquire jurisdiction over the subject matter
which in effect will cause automatic dismissal
of the complaint. (Manchester vs. CA, G.R. No.
75919 May 7, 1987)
The Liberal Rule
The Sun Insurance Doctrine
(1) Payment within prescriptive period: Where
the filing of the initiatory pleading is not
accompanied by payment of the docket
fee, the court may allow payment of the
fee within a reasonable time but in no
case beyond the applicable
prescriptive or reglementary period.
Note: The same rule applies to permissive
counterclaims, third party claims and
similar pleadings.
(2) Docket Fees as Lien: Where the trial court
acquires jurisdiction over a claim by the
filing of the appropriate pleading and
payment of the prescribed filing fee but,
subsequently, the judgment awards a
claim not specified in the pleading, or if
specified the same has been left for
determination by the court, the additional
filing fee therefor shall constitute a lien on
the judgment. It shall be the responsibility
of the Clerk of Court or his duly authorized
deputy to enforce said lien and assess and
collect the additional fee. (Sun Insurance
vs. Asuncion, G.R. Nos. 79937-38,
February 13, 1989)
Conditions for Application of Sun Insurance
Doctrine
(1) There must be demonstration of
willingness to abide by the rules and to
pay the correct docket fees
The liberal interpretation of the payment of
docket fees cannot apply when the party
stubbornly insisted that the case they filed
was one for specific performance and
damages and that they actually paid the
correct docket fees therefor at the time of the
filing of the complaint. (Gochan vs. Gochan,
G.R. No. 146089, December 13, 2001)
(2) There must be no intent to defraud the
court
In case 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 enunciated in Sun Insurance and not
the strict regulations set in Manchester will
apply. (United Overseas Bank vs. Ros, G.R.
No. 171532, August 7, 2007)
Conditions for Application of Docket Fees
as Lien
(1) It is limited only to any damages that may
arise after the filing of the complaint or
similar pleading for then it will not be possible
for the claimant to specify nor speculate as to
the amount thereof. (Metrobank vs. Perez,
GR NO. 181842, February 5, 2010)
(2) After-judgment liens applies only to instances
of incorrectly assessed or paid filing fees, or
where the court has discretion to fix the
amount to be awarded. (Heirs of Dragon vs.
The Manila Banking Corporation, G.R. No.
205068. March 06, 2019)
(3) Docket fees may also be a lien on any
judgment rendered in the case favorable to
the indigent, unless the court otherwise
provides. (Rule 3, Sec. 21)
No Automatic Dismissal in Case of Non-
Payment
Failure to pay the full docket fees allows only
discretionary and not automatic dismissal.
148
However, such power should be used by the court
in conjunction with its exercise of sound
discretion in accordance with the tenets of justice
and fair play, as well as with a great deal of
circumspection in consideration of all attendant
circumstances. (Ku v. RCBC Securities, GR. No.
219491, October 17, 2018)
Effect of Insufficient Payment
If the amount of docket fees is insufficient
considering the amount of the claim, the party
filing the case will be required to pay the
deficiency, but jurisdiction is not automatically
lost. (Rivera vs. Del Rosario, G.R. No. 144934,
January 15, 2004)
No Amendment to conform with the docket
fees
Amendment is not allowed in order to conform
with the amount paid for docket fees because the
court did not acquire jurisdiction on the original
complaint or on the subject matter of the case
because payment of docket fees is jurisdictional.
Since the court has no jurisdiction, there is no
complaint to amend. (Manchester vs. CA, G.R.
No. 75919 May 7, 1987)
Basis of computation of docket fees
The amount of damages must be stated in the
prayer and not only in the body of the complaint.
If it is included in the body only and not in the
prayer, it will still be computed for the purpose of
fixing the amount of docket fees to be paid. The
reason for such ruling is to avoid erroneous
computation in fixing the docket fees. Any
pleading that fails to comply with this
requirement shall not be accepted nor admitted,
or shall otherwise be expunged from the record.
(Manchester vs. CA, G.R. No. 75919 May 7, 1987)
Where the action is purely for the recovery
of money or damages
The docket fees are assessed on the basis of the
aggregate amount claimed, exclusive only of
interests and costs.
Two situations may arise:
(1) One is where the complaint or similar
pleading sets out a claim purely for money or
damages and there is no precise
statement of the amounts being claimed.
Rule: The complaint or pleading may be
dismissed, or the claims as to which the
amounts are unspecified may be expunged,
although as aforestated the Court may, on
motion, permit amendment of the complaint
and payment of the fees provided the claim
has not in the meantime become time-
barred.
(2) The other is where the pleading does specify
the amount of every claim, but the fees paid
are insufficient.
Rule: The court may allow a reasonable time
for the payment of the prescribed fees, or the
balance thereof, and upon such payment, the
defect is cured and the court may properly
take cognizance of the action, unless in the
meantime prescription has set in and
consequently barred the right of action.
(Heirs of Dragon v. The Manila Banking
Corporation, G.R. No. 205068. March 06,
2019)
Payment of Docket Fees in relation to other
pleadings
Compulsory Not required (Villanueva-
counterclaim Ong v. Enrile, G.R. No.
or cross-claim 212904. November 22,
2017 )
149
 Permissive Required (Rule 141, If the court should determine after hearing that
counterclaim Sec.7; Alday vs. FGU the party declared as an indigent is in fact a
Insurance, G.R. No. person with sufficient income or property, the
138822, January 23, 2001) proper docket and other lawful fees shall be
Third-party Required (Rule 141, Sec.
assessed and collected by the clerk of court. If
(4th etc.) 7; Sun Insurance vs.
complaint Asuncion, G.R. Nos. payment is not made within the time fixed by the
79937-38 February 13, court, execution shall issue or the payment
1989) thereof, without prejudice to such other sanctions
Complaint-in- Required (Rule 141, Sec. as the court may impose. (Rule 3, Sec. 21)
intervention 7; (Sun Insurance vs.
Asuncion, G.R. Nos. 2. Efficient Use of Paper Rule; E-Filing
79937-38 February 13, (A.M. No. 10-3-7-SC and A.M. No. 11-94-
1989) SC, As Revised, Approved on February
22, 2022)
Payment of Docket Fees on Appealed Cases
Efficient Use of Paper Rule (A.M. NO. 11-
The payment of appeal docket fees is both 94-SC)
mandatory and jurisdictional. It is mandatory as
it is required in all appealed cases, otherwise, the Date of Effectivity: January 1, 2013
Court does not acquire the authority to hear and
decide the appeal. The failure to pay or even the Applicability of the Rules
partial payment of the appeal fees does not toll
the running of the prescriptive period, hence, will It shall apply to all courts and quasi-judicial
not prevent the judgment from becoming final bodies under the administrative supervision of
and executory. the Supreme Court (A.M. No. 11-94-SC, No. 2)

The payment of the full amount of the docket fee
is a sine qua non requirement for the perfection
of an appeal. The court acquires jurisdiction over
the case only upon the payment of the prescribed
docket fees. (NTC vs. Heirs of Ebesa, G.R. No.
186102, February 24, 2016)
Exception from Payment of Docket Fees
An Indigent Party is exempted from payment of
docket and other lawful fees and of transcripts of
stenographic notes which the court may order to
be furnished him. The amount of the docket and
other lawful fees which the indigent was
exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Format, Style, Margins and Prints
(1) Single space with one and a half space
between paragraphs;
(2) Easily readable font style of the party’s
choice
(3) 14-size font;
(4) Margin:
a. Left hand margin – 1.5 inches from the
edge
b. Upper margin – 1.2 inches from the edge
c. Right hand margin – 1.0 inch from the
edge
d. Lower margin – 1.0 inch from the edge
(5) Every page must be consecutively numbered
(A.M. No. 11-94-SC, Nos. 3 and 4)
Copies to be filed

150
Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file shall be as follows:
Court Number of copies
Supreme Court (a) 1 original (properly
En Banc marked)
(b) 14 copies
(c) 2 sets of annexes,
one attached to the
original and an extra
copy; and
(d) Electronic copy
transmitted within 24
hours from the filing
of the hard copy.
(A.M. No. 10-3-7-SC)
Supreme Court (a) 1 original (properly
Division marked);
(b) 4 copies;
(c) 2 set of annexes, one
attached to the
original and an extra
copy;
(d) Electronic copy
transmitted within 24
hours from the filing
of the hard copy.
(A.M. No. 10-3-7-SC)
Court of (1) 1 original (properly
Appeals and marked);
the (2) Two copies with their
Sandiganbayan annexes
Court of Tax (1) 1 original (properly
Appeals En marked)
Banc (2) 8 copies with
annexes
Court of Tax (1) 1 original (properly
Appeals marked)
Division (2) 2 copies with
annexes,
In other courts 1 original with the stated
annexes attached to it.
(A.M. NO. 11-94-SC, No. 5)
Annexes Served on Adverse Party
A party required by the rules to serve a copy of
his court-bound on the adverse party need not
enclose copies of those annexes, that based on
the record of the court, such party already has in
his possession. In the event a party requests a
set of the annexes actually filed with the court,
the part who filed the paper shall comply with the
request within five days from receipt. (A.M. No.
11-94-SC, No. 6)
The Revised Guidelines on Submission on
Electronic Copies on Supreme Court-Bound
Papers Pursuant to The Efficient Use Of
Paper Rule
A.M. NO. 10-3-7-SC (Guidelines)
Date of Effectivity: June 1, 2022
Electronic Filing Rule (E-Filing Rule)
The E-Filing Rule provides that electronic copies
of all papers and their annexes bound for the
Supreme Court must be submitted through
electronic mail within 24 hours from the filing of
the hard copies, which are to be filed personally,
by registered mail, or by accredited courier. (A.M.
No. 10-3-7-SC- Nos. 1-2)
Coverage of the E-Filing Guidelines
Only Supreme Court-bound papers and their
annexes pursuant to Efficient Use of Paper Rule
(A.M. NO. 10-3-7-SC, No. 1-2)
Manner of transmittal
What must be Electronic copies of all
transmitted Supreme Court bound
papers and their annexes
When must be Within 24 hours from the
submitted filing of the hard copy
which were file personally,
151
 by registered mail or by electronic
accredited courier scanning; and
How Through electronic mail iii. Sealed and
transmitted confidential
(A.M. No. 10-3-7-SC, No. 2) documents or
records
Date and Time of Filing (Note: cross-reference
this with Rule 13, Sec.
14 – Conventional
Manner of filing Date of filing filing)
(a) Filed in Shall be deemed filed Online filing of The date of filing shall
person on the date and time of pleadings and be the date when the
(b) By registered filing of the HARD documents under hard copy was filed in
mail, or COPY, and not the date conventional person, sent by
(c) by accredited and time of the filing without the registered mail, or
courier transmission of the express delivered to by the
electronic copy permission of the accredited courier
Online The date of the Supreme Court
• By e-mail or electronic transmission (A.M. NO. 10-3-7-SC, No. 3)
• Other shall be considered as
electronic the date of filing
Rule on the submission of electronic copy
means
pursuant to
Rule 13, Sec. The electronic copy (e-copy) submitted should be
3(d) the EXACT COPY of the paper filed in Court
Online filing of The date of the personally, by registered mail, by accredited
pleadings and electronic transmission courier, by e-mail or other means of electronic
documents shall be considered as
transmission. As such, the Guidelines requires the
covered by the date of filing
following:
conventional
filing with the Online filing for the (1) The e-copy must contain proof of filing;
express following (2) The e-mail of the e-copy transmission shall
permission of the pleadings/documents attach a Verified Declaration that the
Supreme Court requires express pleading and annexes submitted
permission granted by electronically are complete and true copies
the court: of the printed document and annexes filed
i. Initiatory with the Supreme Court. The Guidelines
pleadings and requires that:
initial responsive (a) The Declaration must be signed under
pleadings, such as oath by the declarant (notarized);
an Answer to a (b) The hard copy of the Verified
Complaint or a Declaration must be attached to the
Comment to a hard copy filed in Court; and
Petition; (c) The PDF copy thereof must be the one
ii. Appendices and attached to the e-mail (A.M. NO. 10-3-
exhibits to 7-SC, No. 4 and No. 8)
motions, or other
documents are Proof of Filing of Hard Copy
not readily
amenable to

152
The proof of fling of hard copy must be shown or
contained in the electronic copy. The following
shall be considered as proof of filing:
Manner of Proof of filing
Filing
Filed in The e-copy shall contain the
person official receiving stamp of
the docketing office, clearly
showing the following:
a. Date and time of filing of
the hard/paper copy;
b. Must be duly signed by the
receiving clerk or records
officer.
By The e-copy shall include the
registered scanned copy of the following:
mail or 1. Proof of mailing
accredited (affidavit of service of the
courier person who delivered the
paper to the post office or
the accredited courier,
with proof of delivery to
the post office and/or
accredited carrier) clearly
showing the date and time
of mailing or delivery to
the post office/accredited
courier; and
2. Proof of payment of
fees (e.g. Postal money
order, cash deposit, etc.),
when applicable
Filed online The e-copy shall include the
via following documents:
electronic 1. PDF copy of the Affidavit
mail or of Electronic Filing of the
other Supreme Court-bound
electronic paper and its annexes (if
means any), with an undertaking
pursuant to that the filer will submit
Rule 13, the exact paper/hard copy
Sec. 3(d) to the court in person or
by registered mail or
accredited courier, within
24 hours form the date of
the electronic
transmission;
2. Express authority from the
Court to file the initiatory
pleading, etc. in
compliance with Rule 13,
Sec. 14
(A.M. No. 10-3-7-SC, No. 4)
Electronic File Format:
(1) The electronic copies must be in PDF format;
(2) It must be individually saved;
(3) It must be individually attached to the email;
and
(4) The filename of the e-copy must be the same
as the document title. (A.M. No. 10-3-7-SC,
No. 5)
Example:
• Petition for Review should have a file name
“Petition for Review.pdf”
• Annex A should have a file name “Annex
A.pdf”
Rule on Title of the E-copy
The title of each electronic copy shall contain
sufficient information to enable the Court to
ascertain from the title:
(a) The party or parties filing the paper;
(b) The nature of the paper
(c) The party or parties against whom relief, if
any, is sought, and the nature of the relief
sought (A.M. No. 10-3-7-SC, No. 7)
An e-mail shall contain only electronic
documents pertaining to one case
General Rule: All electronic copies of Supreme
Court bound papers and their annexes pertaining
to the same case shall be attached to one e-mail.
Exception: In case the total file size of the
electronic documents exceeds the maximum size
allowed for uploading the e-mail service provider
being used by the filer, the filer shall send the
153
electronic documents in several batches. (A.M.
No. 10-3-7-SC, No. 7)
Rule on e-mail by batches
(1) Each email must be clearly marked indicating
in the subject of the e-mail, the batch number
of the e-mail and the total batches of e-mail
sent (e.g. batch 1 of 3) and
(2) All must follow the e-mail format prescribed
above. (A.M. No. 10-3-7-SC, No. 7)
Verified Declaration
Summons shall be directed to the defendant,
signed by the clerk of court, under seal, and shall
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)

The filer shall also attach to the e-mail a Verified Purpose of Service of Summons in relation
Declaration that the pleading and annexes to the nature of the action
submitted electronically are complete and true
copies of the printed document and annexes filed
In Personam In rem and Quasi
with the Supreme Court. (A.M. No. 10-3-7-SC,
in Rem
No. 8)
Nature of the Action
An action in personam Actions in rem are
H. SUMMONS (RULE 14)
is a proceeding to actions against the
enforce personal thing itself.
1. NATURE AND PURPOSE OF SUMMONS
IN RELATION TO ACTIONS IN rights and obligations
PERSONAM, IN REM, AND QUASI IN brought against the A proceeding quasi in
REM person and is based rem is one brought
on the jurisdiction of against persons
Nature and Purpose of Summons the person seeking to subject the
property of such
Summons is a writ by which the defendant is persons to the
notified of the action brought against him or her. discharge of the
(Republic vs. Domingo, G.R. No. 175299, claims assailed.
September 14, 2011) Purpose of Service of Summon
(a) To acquire To satisfy the
Service of summons is a vital and indispensable jurisdiction over constitutional
ingredient of due process. Its purpose is two-fold: the person of the requirement of due
to acquire jurisdiction over the person of the defendant in a
process (Macasaet vs.
defendant and to notify the defendant that an civil case;
(b) To notify said Co, Jr., G.R No.
action has been commenced so that he may be
person of the 156759, June 5,
given an opportunity to be heard on the claim action filed 2013)
against him. (Borlongan vs. Banco De Oro, G.R. against them and
No. 217617, April 5, 2017) (c) To afford an Note: Meaning, the
opportunity to be purpose of summons
heard on the

154
 claims made in these actions is against a person
against them NOT to acquire directly. Jurisdiction
(Sarol v. Spouses jurisdiction over the over the parties is
Gordon, G.R. No.
defendant, but rather required in actions in
244129,
December 09, to satisfy the personam because
2020) constitutional they seek to impose
requirement of due personal
process. responsibility or
Effect of Service of Summon; Reason liability upon a
Jurisdictional Not jurisdictional person. (Frias vs.
Service of summons In a proceeding in Alcayde, G.R. No.
in actions in rem or quasi in rem, 194262, February 28,
personam confers jurisdiction over the 2018).
jurisdiction over the person of the
person of the defendant is not a Mode of Service of Summons in Actions in
defendant in a civil prerequisite to confer Personam
case. (Velayo-Fong jurisdiction on the
vs. Velayo, G.R. No. court, provided that General Rule: In an action strictly in personam,
155488, December 6, the latter has personal service on the defendant is the
2006) jurisdiction over the preferred mode of service, that is, by handing a
res. (Frias vs. copy of the summons to the defendant in person.
Jurisdiction of the Alcayde, G.R. No. If defendant, for excusable reasons, cannot be
court over the person 194262, February 28, served with the summons within a reasonable
of the defendant or 2018). period, then substituted service can be resorted
respondent cannot be to. (Manotoc vs. CA, G.R. No. 130974, August 16,
acquired 2006)
notwithstanding his
knowledge of the Exceptions:
pendency of a case
against him unless he (a) Defendant’s identity or whereabouts are
was validly served unknown
with summons. Such
is the important role a In any action where the defendant is
valid service of designated as an unknown owner, or the like,
summons plays in or whenever his or her whereabouts are
court actions. (Frias unknown and cannot be ascertained by
vs. Alcayde, G.R. No. diligent inquiry, within ninety (90) calendar
194262, February 28, days from the commencement of the action,
2018). service may, by leave of court, be effected
upon him or her by publication in a
In actions in newspaper of general circulation and in such
personam, the places and for such time as the court may
judgment is for or order. (Rule 14, Sec. 16)

155
(b) Where the defendant is a resident latter voluntarily
temporarily out of the Philippines appears before it. By
seeking affirmative
When any action is commenced against a reliefs from the trial
defendant who ordinarily resides within the court, the individual is
deemed to have
Philippines, but who is temporarily out of it,
voluntarily submitted
service may, by leave of court, be also
to the jurisdiction of
effected out of the Philippines through the court. (Tujan-
extraterritorial service (Rule 14, Sec. 18) Militante vs. Nustad
(Riano, Civil Procedure (The Bar Lecture G.R. No. 209518,
Series), Vol. I, p. 476, 2022) June 19, 2017)

Improper Service of Summons in Actions in Final and executory judgment but no

Personam proper service of summons

Absent the proper service of summons, the trial If judgment on an action in personam has already
court does not acquire jurisdiction and renders become final and executory and there was no
null and void all subsequent proceedings and proper service of summons, the remedy is
issuances in relation to the case. Petition for Annulment of Judgment under Rule
47 on the ground of lack of jurisdiction.
Without service of summons, or when summons
are improperly made, both the trial and the Lack of jurisdiction on the part of the trial court
judgment, being in violation of due process, are in rendering the judgment or final order is either
null and void, unless the defendant waives the lack of jurisdiction over the subject matter or
service of summons by voluntarily appearing and nature of the action, or lack of jurisdiction over
answering the suit. (Frias vs. Alcayde, G.R. No. the person of the defendant. In cases involving
194262, February 28, 2018) jurisdiction over the subject matter, the Supreme
Court has recognized denial of due process as a
Voluntary appearance vs Conditional valid ground to file a petition for annulment of
appearance judgment. (Sarol v. Spouses Gordon, G.R. No.
244129, December 09, 2020)
Voluntary Conditional
appearance appearance 2. WHO MAY SERVE SUMMONS
A trial court acquires A party who makes a
jurisdiction over the special appearance to The summons may be served by the:
person of the challenge, among (a) Sheriff; or
defendant by service others, the court’s (b) Sheriff’s deputy; or
of summons. jurisdiction over his (c) Other proper court officer; or
However, even person cannot be (d) Plaintiff together with the sheriff (Rule 14,
without valid service considered to have Sec. 3);
of summons, a court submitted to its (e) Jail Warden acting as a Special Sheriff
may still acquire authority. (Frias vs. (Rule 14, Sec. 8);
jurisdiction over the Alcayde, G.R. No. (f) Counsel of the defendant when deputized
person of the 194262, February 28, by the court (Rule 14, Sec. 13)
defendant, if the 2018)

156
Rules for service of summons by plaintiff
The court shall authorize the plaintiff to serve
summons together with the sheriff upon ex parte
motion in two (2) instances:
(1) In case of failure of service of summons by
the sheriff, his or her deputy or other proper
court officer; or
(2) In cases where summons is to be served
outside the judicial region of the court where
the case is pending.
Note: There is no need for prior failure to
serve in this case before the plaintiff may be
authorized by the court to serve. (Rule 14,
Sec. 3)
If the plaintiff is a juridical entity:
(1) It shall notify the court, in writing, and name
its authorized representative therein; and
(2) A board resolution or secretary’s certificate
must be attached stating that such
representative is duly authorized to serve the
summons on behalf of the plaintiff. (Rule 14,
Sec. 3)
If the plaintiff misrepresents that the
defendant was served summons, and it is
later proved that no summons was served:
(1) The case shall be dismissed with prejudice;
(2) The proceedings shall be nullified; and
(3) The plaintiff shall be meted appropriate
sanctions. (Rule 14, Sec. 3)
If the 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.
Failure to comply with the order shall lead to
dismissal of the initiatory pleading without
prejudice. (Rule 14, Sec. 3)
Jail warden as Special Sheriff
When the defendant is a prisoner confined in a
jail or institution, service shall be effected upon
him or her by the officer having the management
of such jail or institution who is deemed as a
special sheriff for said purpose. (Rule 14, Sec. 8)
Duty of Counsel of Record – when counsel
may serve summons
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)
Duty of the Sheriff in serving summons
Sheriffs are asked to discharge their duties on the
service of summons with:
(1) Due care;
(2) Utmost diligence;
(3) Reasonable promptness and speed so as not
to prejudice the expeditious dispensation of
justice;
(4) They are enjoined to try their best efforts to
accomplish personal service on defendant;
(5) The sheriff must be:
(a) resourceful,
(b) persevering,
(c) canny, and
(d) diligent in serving the process on the
defendant. (Manotoc vs. CA, G.R. No.
130974 August 16, 2006)
3. VALIDITY OF SUMMONS AND
ISSUANCE OF ALIAS SUMMONS
Summons shall be issued within five (5) calendar
days from receipt of the initiatory pleading and
proof of payment of the requisite legal fees.
157
Note: Summons shall not be issued, and the case Issuance of Alias Summons
shall be dismissed if the complaint is on its face
dismissible under Section 1, Rule 9 (non-waivable The only time that an alias summons may be
grounds for dismissal of a complaint). (Rule 14, issued by the court is when summons has been
Sec. 1) lost or destroyed. Said issuance of alias summons
is upon motion. (Rule 14, Sec. 4)
Validity of Summons
4. PERSONAL SERVICE;
Summons shall remain valid until duly served, 5. SUBSTITUTED SERVICE;
unless it is recalled by the court. (Rule 14, Sec. 6. CONSTRUCTIVE SERVICE;
7. EXTRATERRITORIAL SERVICE
4)

When to serve summons

The sheriff or process server, or person

authorized by the court, shall complete the
service of summons within thirty (30) calendar
days from issuance by the clerk of court and
receipt of such. (Rule 14, Sec. 20)

MODES OF SERVICE OF SUMMONS

4. Personal Service or Service in person on Defendant (Rule 14, Sec. 5)
When In all actions, personal service of summons is the preferred mode of service of
applicable summons. Other modes of serving summons may only be done when justified.
(Arrieta v. Arrieta, G.R. No. 234808. November 19, 2018)
How done First mode – handing in person:
Whenever practicable, the summons shall be served by handing a copy thereof to
the defendant in person and informing the defendant that he or she is being served.
(Rule 14, Sec. 5) The defendant shall receive and sign the summons.
Second mode – tender of Summons:
This is when the defendant refuses to receive or, if he or she refuses to receive and
sign for it.

The sheriff must still inform the defendant that he or she is being served. If he
refused to receive the summon, the sheriff shall leave the summons within the view
and in the presence of the defendant. (Rule 14, Sec. 5; (Riano, Civil Procedure (The
Bar Lecture Series), Vol. I, p. 466, 2022)
If defendant is a natural person, personal service shall be made:

158
To whom To the person of the defendant himself (Rule 14, Sec. 5)
served
If defendants are spouses sued jointly, service of summons should be made to each
spouse individually (Rule 14, Sec. 11)
If the defendant is an entity without juridical personality and are sued under the
name by which they are generally or commonly known, service shall be effected:
(a) Upon all the defendants by serving upon any one of them, or
(b) Upon the person in charge of the office or place of business maintained in such
name.

Such service shall not bind individually any person whose connection with the entity
has, upon due notice, been severed before the action was filed (Rule 14, Sec. 7)
If the defendant is a prisoner confined in a jail or institution, service shall be effected:
Upon the prisoner by the officer of the management of such jail who is deemed as a
special sheriff for such purpose (Rule 14, Sec. 8)
If the defendant is a minor, insane or otherwise incompetent, service of summons
shall be made:
Upon him or her personally AND on his or her legal guardian or if none, upon his or
her guardian ad litem whose appointment shall be applied for by the plaintiff.

In the case of a minor, service shall be made on his or her parent or guardian. (Rule
14, Sec. 10)
If the defendant is a domestic private juridical entity (corporation, partnership, or
association organized under the laws of the Philippines), service may be made on:
First, to any of the following, wherever they may be found (S.T.I.G.Ma-P.)
(a) Corporate Secretary
(b) Treasurer
(c) In-house counsel of the corporation
(d) General manager
(e) Managing partner
(f) President

Second, in the absence or unavailability of the abovementioned, on their secretaries;

Third, if such service cannot be made upon any of the foregoing persons, it shall be
made upon the person who customarily receives the correspondence for the
defendant at its principal office. (Rule 14, Sec. 12, par. 1 and 2)

Note: Service of summons on a domestic corporation is restricted, limited and

exclusive to the persons enumerated. (DOLE vs. Quilala, G.R. NO. 168723, July 9,
2008)

The officer upon whom service is made must be one who is named in the statute;
otherwise the service is insufficient. The purpose is to render it reasonably certain

159
 that the corporation will receive prompt and proper notice in an action against it or
to insure that the summons be served on a representative so integrated with the
corporation that such person will know what to do with the legal papers served on
him. (E.B. Villarosa vs. Benito, G.R. No. 136426, August 6, 1999)
If the defendant is a domestic private juridical entity under receivership or liquidation,
service of summons shall be made:
On the receiver or liquidator, as the case may be (Rule 14, Sec. 12, par. 3)
If the defendant is a foreign private judicial entity which has transacted or doing
business in the Philippines, as defined by law, service may be made on:

(a) Its designated resident agent;

(b) If no designated agent:
i. on the government official designated by law to that effect; or
ii. on any of its officers, agents, directors or trustees within the Philippines (Rule
14, Sec. 14, par. 1)
If the defendant is the Republic of the Philippines, service may be effected on:
The Solicitor General (Rule 14, Sec. 15)
If the defendant is a Province, City or Municipality, or like public corporation, service
may be effected on:
(a) executive head; or
(b) such other officer or officers as the law or the court may direct (Rule 14, Sec.
15)
5. Substituted Service
When (1) There was an impossibility of prompt personal service within a period of thirty
applicable (30) calendar days from issue and receipt of summons;
(2) For justifiable causes, the defendant cannot be served personally after at least
3 attempts on at least 2 different dates. (Rule 14, Sec. 6; Sec. 12, 4th par.)
How done; How: By leaving copies of the summons -
where to be a) At the defendant’s residence
served; and to
To: A person who is:
whom served
(1) at least eighteen (18) years of age;
(2) with sufficient discretion; and
(3) residing in the defendant’s residence (Rule 14, Sec. 6[a])

Note: To be of sufficient discretion, a person must know how to read and understand
English to comprehend the import of the summons, and fully realize the need to
deliver the summons and complaint to the defendant at the earliest possible time for
the person to take appropriate action. (Prudential Bank vs. Magdamit, G.R. No.
183795, November 12, 2014)
b) At the defendant’s office or regular place of business
To: Some competent person in charge thereof. A competent person includes, but is
not limited to, one who customarily receives correspondences for the defendant (Rule
14, Sec. 6[b])

160
 Note: The “competent person” must have sufficient knowledge to understand the
obligation of the defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons . (Manotoc vs. CA, G.R. No. 130974
August 16, 2006)
c) At a condominium or subdivision/community, if the person serving
summons was refused entry upon making his or her authority and purpose
known
To: Any of the following:
a) Officers of the homeowner’s association or condominium corporation; or
b) The chief security officer in charge of the community or the building where
the defendant may be found (Rule 14, Sec. 6[c])
d) by sending an electric mail, if allowed by the court
To: The defendant’s electronic mail address (Rule 14, Sec. 6[d])
Substituted service in domestic private juridical entity
Should there be a refusal on the part of the persons mentioned in Rule 14, Sec. 12
to receive summons despite at least three (3) attempts on two (2) different dates,
service may be made electronically, if allowed by the court. (Rule 14, Sec. 12, 4th
par.)

Note: It has been stated and restated that substituted service of summons must
faithfully and strictly comply with the prescribed requirements and in the
circumstances authorized by the rules (Manotoc vs. CA, G.R. No. 130974 August 16,
2006)
6. Constructive Service
When In any action where:
applicable
(a) the defendant is designated as an unknown owner, or the like, or;
(b) whenever his or her whereabouts are unknown and cannot be ascertained by
diligent inquiry (Rule 14, Sec. 16, 1st par.)

Note: The defendant’s whereabouts must be ascertained with diligent inquiry before
resorting to constructive service.
How done Within ninety (90) calendar days from the commencement of the action, service may
be effected upon him or her by publication in a newspaper of general circulation
and in such places and for such time as the court may order. (Rule 14, Sec. 16, 1st
par.)

There must be prior leave of court by motion in writing, supported by affidavit of the
plaintiff or some person on his or her behalf, setting forth the grounds for the
application (Rule 14, Sec. 19)

161
 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. 16, 2nd par.)
7. Extraterritorial Service (Rule 14, Sec. 17; Sec. 18; Sec. 14, 2nd par.)
When (a) In actions in rem or quasi in rem when the defendant does not reside and is
applicable not found in the Philippines, such as:
(1) the action affects the personal status of the plaintiff or relates to;
(2) the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent; or
(3) the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or;
(4) the property of the defendant has been attached within the Philippines
(Rule 14, Sec. 17)
(b) In any actions when the defendant is a person who ordinarily resides within the
Philippines, but who is temporarily out of it (Rule 14, Sec. 18)
(c) When the defendant is a foreign juridical entity not registered in the
Philippines, or has no resident agent but has transacted or is doing business in
it (Rule 14, Sec. 14, 2nd par.)
How done Service may be effected out of the Philippines in any of the following modes:
(a) Personal service;
(b) As provided for in international conventions to which the Philippines is a party;
(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.
Note: The service of summons by publication is 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, postage
prepaid, directed to the defendant by registered mail to his last known address.
The rules, however, do not require that the affidavit of complementary service
be executed by the clerk of court. While the trial court ordinarily does the mailing
of copies of its orders and processes, the duty to make the complementary
service by registered mail is imposed on the party who resorts to service by
publication. (Santos v. PNOC Exploration, G.R. No. 170943, September 23, 2008)
(d) In any other manner the court may deem sufficient (Rule 14, Sec. 17)

There must be prior leave of court by motion in writing, supported by affidavit of the
plaintiff or some person on his or her behalf, setting forth the grounds for the
application (Rule 14, Sec. 19)

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)

162
Exclusive list of designated persons in a e) By such other
corporation means as the
court, in its
Foreign private juridical entity discretion, may
direct.

NOT registered in
Return
Has a resident the PH, or has no
agent and is doing resident agent but
business in the has transacted or When service of summons shall be made
Philippines is doing business
in the PH Within thirty (30) calendar days from issuance of
Service may be made Service may, with summons by the clerk of court and receipt
on leave of court, be thereof, the sheriff or process server, or person
effected outside of
authorized by the court, shall complete its service
(a) Its resident agent the Philippines
designated in through any of the (Rule 14, Sec. 20)
accordance with following means:
law,
a) By personal
(b) If there is no such service coursed When return shall be made
agent, on the through the
government appropriate court
Within five (5) calendar days from service of
official designate in the foreign
by law to that country with the summons (Rule 14, Sec. 20)
effect, or assistance of the
Department of How Return is made
(c) On any of its Foreign Affairs; (a) Server shall file it with the court; and
officers, agents, b) By publication (b) Serve a copy of the return to the plaintiff’s
directors, or once in a counsel personally, by registered mail, or by
trustees within newspaper of electronic means authorized by the Rule.
the Philippines. general (Rule 14, Sec. 20)
(Sec. 14, Rule 14) circulation in the
country where Content of Return in case of Substituted
the defendant Service
may be found and
by serving a copy
of the summons Should substituted service have been effected,
and the court the return shall state the following:
order by (1) The impossibility of prompt personal
registered mail at service within a period of thirty (30)
the last known calendar days from issue and receipt of
address of the summons;
defendant; (2) The date and time of the three (3)
c) By facsimile; attempts on at least two (2) different dates
d) By electronic to cause personal service and the details of
means with the the inquiries made to locate the
prescribed proof defendant residing thereat; and
of service; or (3) The name of the person at least eighteen
(18) years of age and of sufficient discretion

163
 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)
Other details that must be included:
(1) The facts and circumstances surrounding the
attempted personal service;
(2) The efforts made to find the defendant;
(3) The reasons behind the failure must be
clearly narrated in detail in the Return;
(4) The inquiries made to locate the defendant;
(5) All other acts done, though futile, to serve
the summons on defendant must be
specified in the Return to justify substituted
service. (Manotoc vs. CA, G.R. No. 130974
August 16, 2006)
Substituted service is in derogation of the usual
method of service. It is a method extraordinary in
character and hence may be used only as
prescribed and in the circumstances authorized
by statute (Domagas vs. Jensen, G.R. No.
158407, January 17, 2005). The failure to comply
faithfully, strictly and fully with all the foregoing
requirements of substituted service renders the
service of summons ineffective. (Jose vs. Boyon,
G.R. No. 147369, October 23, 2003)
Decision in an action where the
requirements for substituted service of
summons were not met is null and void
The Rules of Court places utmost importance in
ensuring that the defendant personally grasps the
weight of responsibility that will befall him. Thus,
it is only in exceptional circumstances that
constructive notification, or substituted service of
summons, is allowed. If the server falls short of
the rigorous requirements for substituted service
of summons, then the Court has no other option
but to strike down a void judgment, regardless of
the consequences. (Ong vs. Co, G.R. No. 206653,
February 25, 2015)
8) PROOF OF SERVICE SHALL
(1) Be made in writing by the server;
(2) Set forth the manner, place, and date of
service;
(3) Specify any papers which have been
served with the process and the name of
the person who received the same; and
(4) Be sworn to when made by a person other
than a sheriff or his or her deputy. (Rule 14,
Sec. 21)
Summons made by electronic mail
Proof of service shall be:
(1) A printout of the said e-mail, with a copy of
the summons as served; and
(2) The affidavit of the person mailing. (Rule
14, Sec. 21)
Summons made by publication
Proof of service shall be:
1. The affidavit of the publisher, editor,
business or advertising manager;
2. Copy of the publication attached to the
affidavit;
3. 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. 2)
I. MOTIONS (RULE 15)
1. IN GENERAL
Definition of a Motion
A motion is an application for relief other than
by a pleading. (Rule 15, Sec. 1)
Motion vs. Pleading
164
 Motion Pleading relief or remedy sought as a
A motion is an A pleading is a written matter of discretion on the
application for relief statement of the part of the court
Litigated It is a motion which is made
other than by a respective claims and
Motion with notice to the adverse
pleading (Rule 15, defenses of the party to give an opportunity
Sec. 1). parties submitted to to oppose.
the court for Non-litigated It is a motion where notice to
appropriate judgment motion the adverse party and
(Rule 6, Sec. 1). hearing is not required.
Special motion It is a motion which is
addressed to the sound
It may be in the form
discretion of the court.
of a complaint,
Oral motion It is a motion which is made
counterclaim, cross- in open court.
claim, third-party Written motion It is a motion which is
complaint, or formally placed in writing
complaint-in- (Tan, Civil Procedure: A Guide for the Bench and
intervention, answer the Bar, Book I, 2020, pp. 771-772)
or reply (Rule 6, Sec.
2). Form of motions
Its purpose is to Its purpose is to
apply for an order submit a claim or All motions shall be in writing EXCEPT:
not included in the defense for (a) those made in open court or
judgment. appropriate (b) in the course of a hearing or trial (Rule 15,
judgment(Rule 6, Sec.
Sec. 2)
The rules applicable to pleadings shall apply to
1).
written motions so far as concerns caption,
May be oral when Always filed before
designation, signature, and other matters of
made in open court judgment and must
form. (Rule 15, Sec. 11)
or in the course of be written (Rule 6,
hearing or trial (Rule Sec. 1).
Rules in case of an oral motion
15, Sec. 2).
They cannot be May be initiatory
A motion made in open court or in the course ofa
initiatory as they are
hearing or trial should immediately be resolved in
always made in a
open court, after the adverse party is given the
case already filed in
opportunity to argue his or her opposition
court.
thereto. (Tan, Civil Procedure: A Guide for the
Bench and the Bar, Book I, 2020, pp. 773)
Kinds of motions
Motion ex- is a motion made without the
parte presence or a notification to
the other party because the
question generally presented
is not debatable Rule in case a motion is based on facts not
Motion of It is a motion where the appearing on record
course movant is entitled to the

165
When a motion is based on facts not appearing
on record, the court may hear the matter on (a) Motion for the (a) Motion for bill of
affidavits or depositions presented by the issuance of an particulars
respective parties, but the court may direct that alias summons (b) Motion to dismiss
(b) Motion for
(c) Motion for new
the matter be heard wholly or partly on oral
extension to file trial
testimony or depositions. (ibid.) answer (d) Motion for
(c) Motion for reconsideration
Contents postponement (e) Motion for
(1) A motion shall state the relief sought to be (d) Motion for the execution pending
obtained; issuance of a writ appeal
(2) the grounds upon which it is based; and of execution (f) Motion to amend
(3) If required by these Rules or necessary to (e) Motion for the after a responsive
prove facts alleged therein, it shall be issuance of an pleading has been
accompanied by supporting affidavits alias writ of filed
and other papers (Rule 15, Sec. 3). execution (g) Motion to cancel
(f) Motion for the statutory lien
Notes: issuance of a writ (h) Motion for an
of possession order to break in
● A motion made in open court or in the course
(g) Motion for the or for a writ of
of a hearing or trial should immediately be
issuance of an demolition
resolved in open court, after the adverse party
order directing
(i) Motion for
is given the opportunity to argue his or her
the sheriff to intervention
opposition thereto. (Rule 15, Sec. 2[2])
execute the final (j) Motion for
● When a motion is based on facts not
certificate of sale judgment on the
appearing on record, the court may hear the
(h) Other similar pleadings
matter on affidavits or depositions presented
motions (k) Motion for
by the respective parties, but the court may
summary
direct that the matter be heard wholly or
judgment
partly on oral testimony or depositions. (Rule
(l) Demurrer to
15, Sec. 2[3])
evidence
(m) Motion to declare
NON LITIGIOUS LITIGIOUS defendant in
(no hearing MOTIONS default
required) (hearing is (n) Other similar
discretionary) motions
Motions which the The 2019 There is no provision The 2019
court may act upon Amendments includes for opposition in non- Amendments provides
without prejudicing an entire section on litigious motions. that the opposing
the rights of adverse litigious motions. The party shall file his/her
parties are non- items in the opposition to a
litigious motions. enumeration of litigious motion within
litigious motions are 5 calendar days from
not new, but the receipt thereof.
section makes it PERIOD TO PERIOD TO DECIDE
convenient to see DECIDE
which motions are Litigious motions.
litigious in nature. Non-litigious These motions must
These motions Litigious motions motions. The 2019 be resolved by the
include: include: Amendments

166
 explicitly requires court within 15 (8) Motion for an order to break in or for a writ
that non-litigious calendar days from: of demolition;
motions must be (a) receipt of the (9) Motion for intervention;
resolved by the court opposition thereto; (10) Motion for judgment on the pleadings;
within 5 calendar or (11) Motion for summary judgment;
days from receipt (b) upon expiration of (12) Demurrer to evidence;
of the motion. the period to file (13) Motion to declare defendant in default; and
such opposition. (14) Other similar motions. (Rule 15, Sec. 5[a])

2. NON-LITIGIOUS MOTIONS Service of 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 (Rule 15, Sec.
4).
Non-litigious motions include:
(1) Motion for the issuance of an alias
summons;
(2) Motion for extension to file answer;
(3) Motion for postponement;
(4) Motion for the issuance of a writ of
execution;
(5) Motion for the issuance of an alias writ of
execution;
(6) Motion for the issuance of a writ of
possession;
(7) Motion for the issuance of an order
directing the sheriff to execute the final
certificate of sale; and
(8) Other similar motions (Rule 15, Sec.4)
3. LITIGIOUS MOTIONS
Litigious motions include:
(1) Motion for bill of particulars;
(2) Motion to dismiss;
(3) Motion for new trial;
(4) Motion for reconsideration;
(5) Motion for execution pending appeal;
(6) Motion to amend after a responsive
pleading has been filed;
(7) Motion to cancel statutory lien;
To ensure their receipt by the other party, these
motions shall be served by:
(a) personal service,
(b) accredited private courier or
(c) registered mail, or
(d) electronic means (Rule 15, Sec. 5[b])
No written motion shall be acted upon by the
court without proof of service thereof. (Rule 15,
Sec. 7)
The Court ruled that with respect to
motions, proof of service is a mandatory
requirement. Court find no cogent reason why
this dictum should not apply and with more
reason to a petition for certiorari, in view of
Section 3, Rule 46 which requires that the petition
shall be filed "together with proof of service
thereof." Court agrees with the Court of Appeals
that the lack of proof of service is a fatal defect.
The utter disregard of the Rule cannot be justified
by harking to substantial justice and the policy of
liberal construction of the Rules. Technical rules
of procedure are not meant to frustrate the ends
of justice. Rather, they serve to effect the proper
and orderly disposition of cases and thus
effectively prevent the clogging of court dockets.
Indeed, while an affidavit of service is required
merely as proof that service has been made on
the other party, it is nonetheless essential to due
process and the orderly administration of
justice. (Mojar v. Agro Commercial Security
Service Agency, Inc., G.R. No. 187188, June 27,
2012)

167
Duty of Opposing 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. (Rule 15, Sec. 5[c])
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, last par.).
Notice of hearing on litigious motions;
discretionary
Elementary is the rule that every motion must
contain the mandatory requirements of notice
and hearing and that there must be proof of
service thereof. The Court has consistently held
that a motion that fails to comply with the above
requirements is considered a worthless piece of
paper which should not be acted upon. The rule,
however, is not absolute. There are motions that
can be acted upon by the court ex parte if these
would not cause prejudice to the other party.
They are not strictly covered by the rigid
requirement of the rules on notice and hearing of
motions. (Anama v. Court of Appeals, G.R. No.
187021, [January 25, 2012)
Motion Day

The court may, in the exercise of its discretion, General Rule Exception
and if deemed necessary for its resolution, call a Where the court Except for motions
hearing on the motion. The notice of hearing shall decides to conduct requiring immediate
be addressed to all parties concerned, and shall hearing on a litigious action
motion, the same
specify the time and date of the hearing (Rule 15,
shall be set on a
Sec. 6) Friday.
(Rule 15, Sec. 8).
Effects of failure to comply with Secs. 5 and
6 of Rule 15 Omnibus Motion Rule

Failure to comply with the requirements General Rule Exception

mandated by Secs. 5 and 6 of Rule 15 has the A motion (1) Lack of
following effects: attacking a jurisdiction. The
(1) It is considered as a mere worthless piece of pleading, order, court has no
paper; judgment or jurisdiction over the
(2) The clerk of court has no right to receive; proceeding shall subject matter of the
(3) The court has no right to act upon; include all case;
(4) It is considered as a mere pro-forma motion; objections then (2) Litis Pendentia.
(5) It is considered as not filed; available, and all That there is an
(6) It produces no legal effect; objections not action pending
(7) It is a ground for the denial of the motion; included shall be between the same
(8) It presents no question which the court deemed waived, parties for the same
could decide; subject to the cause;
(9) It will not toll the running of prescriptive provisions of Rule (3) Res judicata. That
period to appeal or file pleadings. (Tan, Civil 9, Sec. 1. the action is barred
Procedure: A Guide for the Bench and the by a prior judgment;
Bar, Book I, 2020, pp. 781-782) or

168
 (4) Prescription. That
the action is barred
by the statute of
limitations
(Rule 9, Sec. 1)
Purpose of Omnibus Motion
The purpose is to obviate multiplicity of motions
and to discourage dilatory motions and pleadings.
Under the omnibus motion rule, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections then
available. The purpose of this rule is to obviate
multiplicity of motions and to discourage dilatory
motions and pleadings. Party litigants should not
be allowed to reiterate identical motions,
speculating on the possible change of opinion of
the courts or of the judges thereof. (Tung Ho
Steel Enterprises Corp. v. Ting Guan Trading
Corp., G.R. No. 182153, April 7, 2014)
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. 10).
4. 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;
Note: The filing of an answer precludes
a motion to dismiss; exceptions
the grounds invoked by petitioner in his
Motion to Dismiss had been previously
pleaded in his Answer. The
consideration of these grounds was,
therefore, not forestalled by petitioner's
belated filing of a motion to dismiss.
These grounds are still considered
timely pleaded in his Answer and
merely reiterated in his Motion to
Dismiss.
It is basic, then, that motions to dismiss
are not to be entertained after an
answer has been filed but this rule
admits such as: lack of jurisdiction over
the subject matter, litis pendentia, res
judicata, and prescription, a ground
which only became known subsequent
to the filing of an answer (Alvarado v.
Ayala Land, Inc., G.R. No. 208426,
September 20, 2017)
(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
169
 presentation of its evidence must still be should not be granted an additional
terminated on the dates previously agreed allowed (Rule 15, period of not more than
upon (Rule 15, Sec. 12). Sec. 12[e]). thirty (30) calendar
days to file an answer.
Hypothetical Admission Rule or
Assumption of Truth Rule A defendant is only
When a motion to dismiss is filed, the material allowed to file one (1)
motion for an extension
allegations of the complaint are deemed to be
of time to file an answer
hypothetically admitted. This hypothetical (Rule 11, Sec. 11).
admission, according to Viewmaster Construction
Corporation v. Roxas and Navoa v. Court of Motion for Postponement
Appeals, extends not only to the relevant and
material facts well pleaded in the complaint, but General Rule Exception
also to inferences that may be fairly deduced It is a prohibited If the same is based on:
from them. Thus, where it appears that the pleading; hence, a) Acts of God;
allegations in the complaint furnish sufficient should not be b) Force majeure; or
basis on which the complaint can be maintained, allowed (Rule 15, c) Physical inability of
Sec. 12[f]). the witness to
the same should not be dismissed regardless of
appear and testify.
the defenses that may be raised by the
defendants. Stated differently, where the motion If granted, the movant shall be warned that the
to dismiss is predicated on grounds that are not presentation of its evidence must still be
indubitable, the better policy is to deny the terminated on the dates agreed upon during pre-
motion without prejudice to taking such measures trial (Rule 15, Sec. 12).
as may be proper to assure that the ends of
justice may be served. (Municipality of Hagonoy, Note: A motion for postponement, whether
Bulacan v. Dumdum, Jr., G.R. No. 168289, March written or oral, shall, at all times, be accompanied
22, 2010) by the original official receipt from the office of
The grounds under Rule 16 of the Rules of the clerk of court evidencing payment of the
Court partake of the nature of defenses which postponement fee under Section 21(b), Rule 141,
can be considered without even touching on the to be submitted either at the time of the filing of
merits of the case. Essentially, these grounds said motion or not later than the next hearing
assert that even if the allegations in the complaint date. The clerk of court shall not accept the
are hypothetically admitted to be true, the motion unless accompanied by the original
plaintiff is still in no position to proceed against receipt (Rule 15, Sec. 12).
the defendant. (Land Bank of the Philippines v.
Abellana, G.R. No. 237369, October 19, 2022, J.
Hernando)
Pro-forma Motions

Motion for Extension of Time to File

Pleadings, Affidavits or any Other Papers A motion pro forma intended merely to delay the
proceedings and it shall not interrupt or suspend
General Rule Exception the period of time for the perfection of an appeal
It is a prohibited A defendant may, for (Gaspay vs. Sangco, G.R. No. L-27826, December
pleading; hence, meritorious reasons, be 18, 1967).

170
 under Sec. 13, Rule is a final order since it
Motion to Dismiss vs. Demurrer to Evidence 15; is an adjudication on
the merits;
The remedy of the The remedy of the
Motion to Dismiss Demurrer to
plaintiff in case of plaintiff in case of
Evidence
granting of the motion granting of de- murrer
A motion to dismiss A motion for demurrer to dismiss is appeal if to evidence is ap- peal
under Sec. 12, Rule to evidence under the dismissal is with the order being a final
15, is an om- nibus Rule 33 is a litigated prej- udice (Sec. 13, order and an
and a litigious motion; motion; (f) (h) and (m), Rule adjudication upon the
A motion to dismiss A motion for demurrer 15 in relation to Sec. merits.
has four (4) grounds to evidence the 1, Rule 41.
mentioned under Sec. ground is in- (Tan, Civil Procedure: A Guide for the Bench and
12, Rule 15, namely sufficiency of evidence
the Bar, Book I, 2020, pp. 799-800)
lack of jurisdiction that upon the facts
over the subject and the law the
matter of plaintiff has shown no 5. MOTION FOR BILL OF PARTICULARS
theaction,HSpendenti right of relief; (RULE 12)
a, barred by prior Please see previous discussion on Motion of Bill
judgment, and of Particulars after pleadings topic.
prescription;
A motion to dismiss A motion for demurrer J. DISMISSAL OF ACTIONS
shall be filed before to evidence shall be
the filing of the filed after the plaintiff Dismissal upon notice of plaintiff
responsive pleading; has rested its case;
The remedy in case of The remedy in case of A complaint may be dismissed by the plaintiff by
deni- al of the motion deni- al of the motion
filing a notice of dismissal at any time before
to dismiss is to file an for demur- rer to
service of the answer or of a motion for summary
answer within the evidence, the remedy
balance of the period for the defendant is to judgment. (Rule 17, Sec. 1)
in which he is entitled pro- ceed with the
but in no case less trial, and in case of This dismissal is exercised by the plaintiff as a
than five (5) days, adverse decision ap- matter of right. The court does not even rule on
raised the same as an peal the same; the same, but merely confirms the dismissal. It
affirmative defense in
has no discretion or option to deny the dismissal.
the answer, proceed
to trial, and in case of It has no choice but to consider the case as
adverse decision dismissed. Thus, the order issued by the court on
appeal the decision the same is not to grant or deny the dismissal,
and raised the denial but merely to confirm it. (Salazar, The
as assign- ment or Fundamentals of Civil Procedure, p. 156, 2021)
error, unless the
denial is tainted with
General Dismissal is without prejudice
grave abuse of
Rule
discretion hence,
certiorari is a remedy; Exceptions (1) Where the notice of dismissal
so provides
In case of granting of In case of granting of
(2) Where the plaintiff has
the motion to dismiss, the motion for
previously dismissed the same
the or- der of dismissal demurrer to evidence
case in a court of competent
is either with prejudice the order of dis- missal

171
 jurisdiction (Two-Dismissal • Dismissal upon • Dismissal for the
Rule) mere notice without first time by plaintiff
order of the court upon mere notice
Even where the notice of when filed by a without order of the
dismissal does not provide that it party who has once court (Rule 17, Sec.
is with prejudice, but it is dismissed in a 1)
premised on the fact of payment competent court an • Dismissal by order of
by the defendant of the claims action based on or the court upon
involved. including the same plaintiff’s own
(M. M. De Leon, Remedial Law Reviewer-Primer, claim (Rule 17, Sec. motion (Rule 17,
2021 Edition, pp. 171-172) 1) Sec. 2)
• Dismissal by order • Dismissal upon
of the court upon a motion of defendant
Dismissal upon motion by plaintiff
party’s motion or upon court’s own
which specifies that motion upon failure
After an answer or motion for summary judgment the same shall be to prosecute by
has been served, a complaint shall not be with prejudice to plaintiff, and the
dismissed at the plaintiff’s instance without the the filing of court specifies that
court’s approval. There is now a requirement for subsequent action the same shall be
the plaintiff to file a motion, which is subject to based on or without prejudice
including the same (Rule 17, Sec. 3)
the court’s action. (Salazar, The Fundamentals of
claim (Rule 17, Sec.
Civil Procedure, p. 158, 2021) 2)
• Dismissal upon
General Dismissal is without prejudice motion of the
Rule defendant or upon
Exceptions Otherwise specified in the order the court’s own
(Rule 17, Sec. 2) motion upon
plaintiff’s failure to
Note: The dismissal shall be without prejudice to prosecute his claim
(Rule 17, Sec. 3)
the right of the defendant to prosecute his
• Dismissal as a result
counterclaim (whether compulsory or permissive) of plaintiff’s failure
in a separate action unless within 15 calendar to appear during
days from notice of the motion he manifests his the pre-trial, unless
preference to have his counterclaim resolved in otherwise ordered
the same action (Rule 17, Sec. 2) by the court. (Rule
18, Sec. 5)
(M. M. De Leon, Remedial Law Reviewer-Primer,
1. DISMISSAL WITH PREJUDICE VS.
DISMISSAL WITHOUT PREJUDICE 2021 Edition, 170-171)

Dismissal Dismissal 2. DISMISSALS WHICH HAVE AN EFFECT

OF AN ADJUDICATION ON THE MERITS
WITH Prejudice WITHOUT
Prejudice
Two-Dismissal Rule
This type of dismissal It leaves the plaintiff
bars the refiling of the free to bring another
A notice operates as an adjudication upon the
case. suit based on the same
merits when filed by a plaintiff who has once
grounds.

172
dismissed in a competent court an action based
on or including the same claim (Rule 17, Sec. 1).
This applies when the plaintiff has
• A twice dismissed action,
• Based on or including the same claim,
• In a court of competent jurisdiction. (Riano,
Civil Procedure (The Bar Lecture Series), Vol.
I, p. 482, 2022)
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 the instant case, the petitioner's
preference to have his counterclaim (and cross-
claims) be prosecuted in the same action was
timely manifested. (Lim Tek Chuan v. Uy, G.R.
No. 155701, March 11, 2015)
Note: Rule 17 of the Rules of Civil
Procedure governs dismissals of actions at the
instance of the plaintiff. Hence, the "two-
dismissal rule" under Rule 17, Section 1 of the
Rules of Civil Procedure will not apply if the prior
dismissal was done at the instance of the
defendant. (Ching v. Cheng, G.R. No. 175507,
October 8, 2014)
Dismissal due to the fault of plaintiff
The complaint may be dismissed upon motion of
the defendant or upon the court’s own motion if,
for no justifiable cause, the plaintiff:
(1) Fails to appear on the date of the
presentation of his evidence in chief on the
complaint
(2) Fails to prosecute his action for an
unreasonable length of time
(3) Fails to comply with the Rules of Court or any
court order.
This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
declared by the court (Rule 17, Sec. 3)
Under Section 3, Rule 17 of the 1997 Rules of
Civil Procedure, as amended, the failure on the
part of the plaintiff, without any justifiable cause,
to comply with any order of the court or
the Rules, or to prosecute his action for an
unreasonable length of time, may result in the
dismissal of the complaint either motu proprio or
on motion by the defendant.
There are three (3) instances when the trial court
may dismiss an action motu proprio, namely:
(1) where the plaintiff fails to appear at the
time of the trial;
(2) where he fails to prosecute his action for
an unreasonable length of time; and,
(3) when he fails to comply with the rules or
any order of the court.
The failure of a plaintiff to prosecute the action
without any justifiable cause within a reasonable
period of time will give rise to the presumption
that he is no longer interested to obtain from the
court the relief prayed for in his complaint; hence,
the court is authorized to order the dismissal of
the complaint on its own motion or on motion of
the defendants. The presumption is not,
however, by any means, conclusive because the
plaintiff, on a motion for reconsideration of the
order of dismissal, may allege and establish a
justifiable cause for such failure. (Allied Banking
Corp. v. Spouses Madriaga, G.R. No. 196670,
October 12, 2016)
Test to determine the doctrine of “non-
prosequitur” as a ground for dismissal
The fundamental test for non-prosequitur is
whether, under the circumstances, the plaintiff is
chargeable with want of due diligence in failing to
proceed with reasonable promptitude
The Court has held in the past that a court may
dismiss a case on the ground of non prosequitur,
but the real test of the judicious exercise of such
power is whether, under the circumstances,
173
plaintiff is chargeable with want of fitting
assiduousness in not acting on his complaint with
reasonable promptitude. Unless a party's conduct
is so indifferent, irresponsible, contumacious or
slothful as to provide substantial grounds for
dismissal, i.e., equivalent to default or non-
appearance in the case, the courts should
consider lesser sanctions which would still
amount to achieving the desired end. In the
absence of a pattern or scheme to delay the
disposition of the case or of a wanton failure to
observe the mandatory requirement of the rules
on the part of the plaintiff, as in the case at bar,
courts should decide to dispense with rather than
wield their authority to dismiss.
There is failure to prosecute when the party
evidently no longer desires to pursue its case by
not appearing or by showing a pattern to delay
the disposition of the case. (Philippine
Commercial International Bank v. Laguna
Navigation, Inc., G.R. No. 195236, February 8,
2021, J. Hernando)
Section 3, Rule 17 of the 1997 Rules of Civil
Procedure is explicit that the dismissal of the
complaint due to failure to prosecute "shall have
the effect of an adjudication upon the merits
unless otherwise declared by the Court."
The Rule says:
If, for no justifiable cause, the plaintiff to appear
on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action
for an unreasonable length of time, or to comply
with these Rules or any order of the court, the
complaint may be dismissed upon motion of the
defendant or upon the court's own motion,
without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in
separate action. This dismissal shall have the
effect of an adjudication upon the merits unless
otherwise declared by the court. (Roasters
Philippines., Inc. v. Gaviola, G.R. No. 191874,
September 2, 2015)
Note: In case of dismissal of the main action on
the counterclaim whether permissive or
compulsory will not be dismissed and shall be
prosecuted in the same case or in case or in a
separate action.
A counterclaim arising from the unfounded suit
may proceed despite the dismissal of the
complaint for lack of jurisdiction over the person
of defendant-counterclaimant. Whatever the
nature of the counterclaim, it bears the same
integral characteristics as a complaint; namely a
cause (or causes) of action constituting an act or
omission by which a party violates the right of
another.
The main difference lies in that the cause of
action in the counterclaim is maintained by the
defendant against the plaintiff, while the
converse holds true with the complaint. if the
dismissal of the complaint somehow eliminates
the cause(s) of the counterclaim, then the
counterclaim cannot survive. Yet that hardly is
the case, especially as a general rule. More often
than not, the allegations that form the
counterclaim are rooted in an act or omission of
the plaintiff other than the plaintiff's very act of
filing the complaint. Moreover, such acts or
omissions imputed to the plaintiff are often
claimed to have occurred prior to the filing of the
complaint itself. The only apparent exception to
this circumstance is if it is alleged in the
counterclaim that the very act of the plaintiff in
filing the complaint precisely causes the violation
of the defendant's rights. Conversely, if the
counterclaim itself states sufficient cause of
action then it should stand independently of and
survive the dismissal of the complaint.
It bears to emphasize that petitioner's
counterclaim against respondent is for damages
and attorney's fees arising from the unfounded
174
suit. While respondent's Complaint against
petitioner is already dismissed, petitioner may
have very well already incurred damages and
litigation expenses such as attorney's fees since
it was forced to engage legal representation in
the Philippines to protect its rights and to assert
lack of jurisdiction of the courts over its person
by virtue of the improper service of summons
upon it. Hence, the cause of action of petitioner's
counterclaim is not eliminated by the mere
dismissal of respondent's complaint. (Padilla v.
Globe Asiatique Realty Holdings Corp., G.R. No.
207376, August 6, 2014)
Dismissal of Counterclaim, Cross-claim or
Third-party Complaint
The provisions of this Rule shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint.
A voluntary dismissal by the claimant by notice as
in Section 1 of this Rule, shall be made:
(1) before a responsive pleading or a motion for
summary judgment is served or,
(2) if there is none, before the introduction of
evidence at the trial or hearing. (Rule 17,
Sec. 4)
K. PRE-TRIAL (RULE 18)
Definition
Pre-trial is a procedural device intended to clarify
and limit the basic issues between the parties
and to take the trial of cases out of the realm of
surprise and maneuvering. (Zaldivar vs People,
G.R. No. 197056, March 02, 2016)
1. NATURE AND PURPOSE
The pre-trial is mandatory and should be
terminated promptly (Rule 18, Sec. 2) but not
jurisdictional (Spouses Martinez v. De la Merced,
G.R. No. 82039, June 20, 1989)
Note: Pre-trial is mandatory in civil cases. In
criminal cases, it is mandatory in cases cognizable
by the following:
(1) Sandiganbayan
(2) RTC
(3) MeTC, MTCC, MTC, MCTC
It is also mandatory in both criminal and civil
cases under the Rule on Summary Procedure.
The Court's authority is confined to a mere
determination of the propriety of rendering a
judgment on the pleadings or a summary
judgment. (M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, p. 175)
Pre-trial promotes a less cluttered trial and
resolution of the case. Its main objective is:
(a) To simplify, abbreviate, and expedite the
trial; or
(b) Totally dispense with it (Abubakar vs
Abubakar, G.R. No. 134622, October 22,
1999).
Furthermore, pre-trial procedure aims to take the
trial of cases out of the realm of surprise and
maneuvering." Pre-trial is primarily intended to
make certain that all issues necessary to the
disposition of a cause are properly raised. Thus,
to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all
issues of law and fact which they intend to raise
at the trial, except such as may involve privilege
or impeaching matter. (Permanent Concrete
Products, Inc. v. Teodoro, G.R. No. L-29766,
November 29, 1968)
Matters to be considered in the pre-trial
(1) The possibility of an amicable settlement or
of a submission to alternative modes of
dispute resolution;
175
(2) The simplification of issues;
(3) The possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
(4) The limitation on the number and
identification of witnesses and the setting of
trial dates;
(5) The advisability of a preliminary reference of
issues to a commissioner;
(6) The propriety of rendering judgment on the
pleadings, or summary judgment or of
dismissing the action should a valid ground
be found to exist;
(7) 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-a-vis 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 available at the
pre-trial, but only in the following
manner:
i. For testimonial evidence, by giving
the name or position and the nature
of the testimony of the proposed
witness;
ii. For documentary evidence and other
object evidence, by giving a
particular description of the
evidence.
Note: No reservation shall be allowed
if not made in the manner described
above.
(8) Such Other matters as may aid in the prompt
disposition of the action. (Rule 18, Sec. 2)
Effect of failure of the party or counsel to
appear during pre-trial
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. (Rule 18, Sec. 2)
This means that the defendant forfeits his/her
opportunity to rebut the evidence presented by
the plaintiff and to present his/her own evidence.
(Aguilar, et al. vs. Lightbringers Credit
Cooperative, G.R. No. 209605, January 12,
2015).
Effect of failure of the party or counsel to
bring the evidence required during pre-trial
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)
Duty of the Clerk of Court
Plaintiff no longer required to move that the case
be set for pre-trial — clerk of court shall issue
notice of pre-trial (Rule 18, Sec. 1)
Then the branch clerk of court shall prepare the
minutes of the pre-trial.
Consent decree
As Consent decree refers to a judicially-approved
settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment. (Sec. 5 of A.M. 09-6-
08-SC on the Rules of Procedure in Environmental
Cases)
Notice of Pre-Trial
After the last responsive pleading has been
served and filed, the branch clerk of court
shall issue a Notice of Pre-Trial within five (5)
calendar days from filing. (Rule 18, Sec. 1)
176

Pre-trial shall be set not later than sixty (60)
calendar days from the filing of the last
responsive pleading. (Id.)
Note: There is no more need for the plaintiff to
move for the case to be set for pre-trial. The clerk
of court shall issue the notice of pre-trial.
Respective dates of the following shall be
included in the Notice of Pre-Trial
(1) Pre-trial;
(2) Court-Annexed Mediation (CAM); and
(3) Judicial Dispute Resolution (JDR), if
necessary (Rule 18, Sec. 3)
Note: The failure of a party to appear at the pre-
trial has adverse consequences. Thus, 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 (Agulto vs. Tecson, G.R. No. 145276,
November 29, 2005).
On whom Notice of Pre-Trial is served
The notice of pre-trial shall be served on either of
the following:
(1) Counsel, who is charged with the duty of
notifying the party represented by him/her;
or
(2) The party, if he/she has no counsel. (Rule
18, Sec. 3).
Section 3, Rule 18 of the 1997 Rules of Civil
Procedure requires that notice of pre-trial
conference be served on counsel. The counsel
served with notice is charged with the duty of
notifying the party he represents. However, when
a party has no counsel, as in this case, the notice
of pre-trial is required to be served personally on
him. In view of the fact that petitioner was, and
still is, not represented by counsel, and that as
petitioner herself admitted, notice of the pre-trial
conference was served on her, the mandate of
the law was sufficiently complied with. Thus, the
fact that the trial court mistakenly referred to her
counsel when no such counsel exists is
immaterial. For as long as notice was duly served
on petitioner, in accordance with the rules, the
trial court's order of dismissal cannot be
invalidated due to statements referring to her
counsel, for the same have no bearing on the
validity of the notice of pre-trial. (Daaco v. Yu,
G.R. No. 183398, June 22, 2015)
2. APPEARANCE OF PARTIES; EFFECTS
OF FAILURE TO APPEAR
Rule on appearance of parties during pre-
trial
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. (Rule 18, Sec. 4)
The non-appearance of a party and counsel may
be excused only for: (AMP)
(1) Acts of God;
(2) Force Majeure; or
(3) Duly substantiated Physical inability (Rule
18, Sec. 4).
A representative may appear on behalf of a party,
but must be fully authorized in writing (Special
Power of Attorney) to do the following:
(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)
The rules on pre-trial are not technicalities that
the parties may ignore or trifle with, its objective
being the simplification, abbreviation and
177
expedition of the trial, if not its
dispensation. Rule 18 of the Rules leaves no
room for equivocation; appearance at the pre-
trial, along with the filing of a corresponding pre-
trial brief, is not only mandatory, but also the
litigant's duty. While every party to a case must
be given the chance to come to court prepared,
they must do so within the parameters set by the
rules. (Dela Cruz v. Victa Realty & Development
Corp., G.R. No. 218627 (Notice), June 14, 2021)
Effects of Failure to Appear
(1) Plaintiff Dismissal of the action.
and
Counsel Note:
• The dismissal shall be
with prejudice, unless
otherwise ordered by
the court. (Rule 18,
Sec. 5)
• There should be no
cause for confusion,
and the trial court is
not required to
explicitly state that the
dismissal is with
prejudice (Chinkoe vs.
Republic, G.R. No.
183608, July 31,
2013).
Note: The plaintiff’s
remedies from the order
of dismissal include:
a. Appeal; or
b. Re-filing of the
complaint, if the order
of dismissal is without
prejudice. (Sec. 1(g),
Rule 41)
(2) Defendant a. Plaintiff shall be allowed
and to present his or her
Counsel evidence ex parte
within ten (10) calendar
days from termination
of the pre-trial; and
b. The court shall be
allowed to render
judgment on the basis
of the evidence offered
(Rule 18, Sec. 5).
3. Either party Failure shall result in a
(plaintiff or waiver of any objections to
defendant) the faithfulness of the
and counsel reproductions of evidence
marked, or their
genuineness and due
execution (Rule 18, Sec.
2).
Thus, the failure of a party to appear at the pre-
trial has adverse consequences. If the absent
party is the plaintiff, then he may be declared
non-suited and his case dismissed. If it
is the defendant who fails to appear, then
the plaintiff may be allowed to present his
evidence ex parte and the court to render
judgment on the basis thereof.
In certain instances, however, the non-
appearance of a party may be excused if a valid
cause is shown. What constitutes a valid
ground to excuse litigants and their
counsels at the pre-trial is subject to the sound
discretion of a judge. Unless and until a clear and
manifest abuse of discretion is committed
by the judge, his appreciation of a party’s reasons
for his nonappearance will not be disturbed."
(Avelino v. E. Cortes Diagem Realty and
Development Corp., G.R. No. 238360 (Notice),
June 6, 2018 citing Daaco v. Yu, 761 Phil. 161,
2015)
Non-Appearance of a Party and Counsel may be
excused when:
(1) A valid cause is shown; or
178
(2) There is an appearance of a representative
on behalf of a party fully authorized in
writing to:
(a) Enter into an amicable settlement;
(b) Submit to alternative modes of dispute
resolution; and
(c) Enter into stipulations or admissions of
facts and documents (Rule 18, Sec. 4).
Note: Mere presentation of such written authority
is not enough. It must be complemented by
showing a valid cause for the non-appearance of
the party.
A valid cause to excuse litigants and their
counsels at the pre-trial is subject to the court’s
discretion and the exercise of such discretion shall
not be disturbed, except in cases of clear and
manifest abuse (Daaco vs. Yu, G.R. No. 183398,
June 22, 2015).
Pre-trial serves a significant purpose in court
proceedings. It simplifies, abbreviates and
expedites the trial, if not the entire process of
administering and dispensing justice. For this
reason, the parties and their counsels cannot take
this stage for granted as it is more than just a
part of procedural law or its technicality.
Accordingly, Section 4 and Section 5, Rule 18 of
the Revised Rules of Court mandate the
appearance of the parties and their counsels, and
the consequences for their failure to appear
during the scheduled pre-trial.
When read plainly, the then Section 5 gives the
impression that only the failure of the plaintiff or
the defendant (and not their counsels) to appear
in pre-trialwould bring about the dismissal of the
action or the eventual ex parte presentation of
evidence by the plaintiff, respectively. Taking the
cue from such plain reading, Gemina's counsel
argued that his non-appearance during the pre-
trial should not have worked to his client's
prejudice as the latter had been prudent in
attending hearings in the proceedings.
This confusion in the import of Section 5, Rule 18
of the Rules of Court was aptly addressed
in Paredes v. Verano (Paredes) where this Court
categorically concluded that the absence of
defendants' counsel would not ipso
facto authorize the judge to declare the
defendant in default and cause the ex
partepresentation of plaintiff's evidence. A
stringent construction of the rules in which a
court rules based on technicalities should not be
the norm.
Said pronouncement and ratio would be
controlling in the present case where Gemina,
just like the defendants in Paredes, attended the
scheduled pre-trialyet his counsel failed to appear
on even date. We recognize the significance of
the rules which serve as a roadmap for the party-
litigants and practitioners in dealing with the
courts. However, their application may be relaxed
if and when the rigid application would subvert
substantive justice. Indeed, the procedural rules
may be liberally applied in order to relieve the
party-litigant of injustice which is incomparable to
the thoughtlessness of non-compliance with the
rules.
With the advent of AM 19-10-20-SC, said Section
5 has been clarified by already including the
word counsel and putting the conjunctive
word and, to the effect that it is only when both
the party-litigant (plaintiff or defendant) and his
counsel fail to appear in pre-trial that there be the
concomitant consequence of either a dismissal
(plaintiff and counsel were absent), or
presentation of evidence ex parte (defendant and
counsel were absent) (Gemina v. Heirs of Espejo,
Jr., G.R. No. 232682, September 13, 2021, J.
Hernando)
179

3. PRE-TRIAL BRIEF; EFFECT OF
FAILURE TO FILE
Filing of Pre-Trial Brief
The parties shall file with the court and serve on
the adverse party their respective pre-trial briefs,
in such manner as shall ensure their receipt
thereof at least three (3) calendar days before the
date of the pre-trial (Rule 16, Sec. 6).
Contents of a Pre-Trial Brief:
(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 18, Sec. 6).
The rule provides that the parties shall already
indicate in their pre-trial briefs the documentary
and testimonial evidence that they intend to
present. The briefs will be the basis of the pre-
trial order that the court will issue; the order will
enumerate the evidence that each side is allowed
to present.
No documentary evidence shall be presented and
offered in trial other than those that had been
earlier identified and pre-marked during the pre-
trial, except if allowed by the court for good cause
shown. There is no hard and fast rule to
determine what may constitute "good cause,"
though this Court has previously defined it as any
substantial reason "that affords a legal excuse."
The good cause exception, however, does not
extend to testimonial evidence, especially since
the Judicial Affidavit Rule governs presentation of
testimonial evidence.
The Court agrees with the CA. Except on two of
the three additional witnesses that Maningas
presented, Real Bank failed to raise timely
objections to the offer of the additional
documentary and testimonial evidence. Real Bank
properly objected to the presentation of Celia
Pineda and Angelita O. Grey as witnesses.
However, it failed to object on the other
documentary and testimonial evidence on the
ground that they were not included in the pre-
trial order. Indeed there were objections, but the
grounds raised were different. Thus, the
additional pieces of evidence became admissible.
Regardless of whether these additional pieces of
evidence are excluded or not, the liabilities of the
banks as already determined will not be affected.
The additional pieces of evidence are not
necessary to rule that Real Bank is liable by virtue
of the guarantees it extended being the collecting
bank and last indorser of the checks. (The Real
Bank (A Thrift Bank), Inc. v. Maningas, G.R. No.
211837, March 16, 2022, J. Hernando)
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. (Eubanas v.
Chuanico, G.R. No. 218772 (Notice), March 29,
2022)
The appearance of the counsel at the pre-trial
conference, without a pre-trial brief and with only
his bare allegation that he is counsel for
petitioner, was correctly rejected by the trial
court. Accordingly, the trial court, as affirmed by
the appellate court, did not err in allowing
respondent to present evidence ex-parte (Durban
Apartments Corp. vs. Pioneer Insurance and
180
Surety Corp., G.R. No. 179419, January 12, The contents of the order shall control the
2011). subsequent courses of the action, UNLESS
modified before trial to prevent manifest
Pre-Trial Order injustice.
o The contents of the pre-trial order may be
An order issued by the court upon termination of modified before trial to prevent manifest
the pre-trial. It shall be issued within ten (10) injustice.
calendar days after termination of the pre-trial.
The direct testimony of witnesses for the plaintiff
(Rule 18, Sec. 7)
shall be in the form of judicial affidavits. After the
identification of such affidavits, cross-
Contents of a Pre-Trial Order
examination shall proceed immediately (A.M. No.
12-8-8-SC, Sec. 7).
The pre-trial order shall recite in details the
matters taken up, including:
Postponement
(a) An enumeration of the admitted facts;
(b) The minutes of the pre-trial conference; General Rule Exception
(c) The legal and factual issue/s to be tried; Postponement of If it is based on:
(d) The applicable law, rules, and jurisprudence; presentation of (a) Acts of God;
(e) The evidence marked; the parties’ (b) Force majeure; or
(f) The specific trial dates for continuous trial, witnesses at a (c) Duly substantiated
which shall be within the period provided by scheduled date is physical inability of
the Rules; prohibited the witness to appear
(g) The case flowchart to be determined by the and testify
court, which shall contain the different stages (Rule 18, Sec. 7)
of the proceedings up to the promulgation of
the decision and the use of time frames for The party who caused the postponement is
each stage in setting the trial dates; warned that the presentation of its evidence must
(h) A statement that the one-day examination of
still be terminated within the remaining dates
witness rule and most important witness rule
previously agreed upon (Ibid.)
under A.M. No. 03-1-09-SC (Guidelines for
Pre-Trial) shall be strictly followed; and
(i) A statement that the court shall render The postponed date shall be deducted from the
judgment on the pleading or summary reserved dates for that party to complete the
judgment as the case may be. (Rule 18, Sec. presentation of his/her evidence, subject to the
7) requisite payment of the postponement fee.
(Salazar, The Fundamentals of Civil Procedure,
Admissions or stipulations made during the pre-
2021, P. 169)
trial and stated in the pre-trial order are binding
upon the party making the admissions (M. De
Waiver of Objection and Cross-Examination
Leon, Remedial Law Reviewer-Primer, 2021
Edition, p. 178).
Should the opposing party fail to appear without
valid cause, the presentation of the scheduled
Other Matters re Contents:
witness will proceed with the absent party being
deemed to have waived the right to interpose

181
objection and conduct cross-examination. (Rule The sanctions for In case of failure of the
18, Sec. 7) non-appearance in counsel for the accused
a pre-trial in a civil or the prosecutor to
Note: There is no need to go to trial if only legal case are imposed appear at the pre-trial
issues will be presented. It is presumed that the upon the plaintiff conference, the proper
judge and the parties know the law. and the defendant sanctions or penalties
(Rule 18, Sec. 4) are imposed upon the
counsel (Rule 118,
Pre-Trial in Civil Cases vs. Pre-Trial in Criminal Sec. 3)
Cases A Pre-trial Brief is A Pre-trial Brief is not
specifically required required to be
to be submitted in a submitted in a criminal
Pre-Trial in Civil Pre-Trial in
civil case (Rule 18, case.
Cases Criminal Cases
Sec. 6)
It is set when the It is set when the Court
branch clerk of court shall order a pre-trial
Court-Annexed Mediation (CAM)
shall issuea notice of conference(Rule 118,
pre-trial (Rule 18, Sec. 1)
After pre-trial and, after issues are joined, the
Sec. 1)
court shall refer the parties for mandatory court-
It is set not later It is set after
annexed mediation. The period for court-annexed
than sixty (60) arraignment and within
mediation shall not exceed thirty (30) calendar
calendar days thirty (30) days from
days without further extension (Rule 18, Sec. 8).
from the filing of the date the court
the last responsive acquires jurisdiction
Pending such mediation process, the proceedings
pleading.(Rule 18, over the person of the
in court is suspended. (Salazar, The
Sec. 1) accused(Rule 118,
Fundamentals of Civil Procedure, 2021 Edition, p.
Sec. 1)
170)
The court considers The court does not
the possibility of an considers the
Nature and Purpose of CAM
amicable settlement possibility of an
as one of its amicable settlement as
CAM is part of pre-trial and mandatory, which is
purpose(Rule 18, one of its purpose
intended to give parties a chance to settle the
Sec. 2)
case. (Tan, Civil Procedure: A Guide for the Bench
The branch clerk of All agreements or
and the Bar, Book I, 2020 Edition, p. 853)
court shall prepare admissions made or
the minutes of the entered during the pre-
Mandatory Coverage for CAM in Civil Cases
pre-trial and signed trial conference shall
by both parties and be reduced in writing
The following cases shall be referred to CAM:
their counsel.(Rule and signed by the
18, Sec. 2) accused and counsel,
(a) All ordinary civil cases, including media table
otherwise, they cannot permissive or compulsory counterclaim or
be used against the cross-claim as pleaded in the answer,
accused.(Rule 118, complaint-in-intervention, and third (fourth,
Sec. 2) etc.)- party complaint, except those which

182
 cannot be subject of a compromise under Art.
2035 of the NCC;
(b) All special civil actions, except under Rules
63, 64, 65, 66, and 71 of the Rules of Court;
(c) Special Proceedings cases for settlement of
estate where the dispute involves claims
against the estate, or the distribution or
partition of estate in intestate proceedings;
(d) All those cases involving issues under the
Family Code and other laws, in relation to
support, custody, visitation, property
relations, guardianship of minor children, and
other issues which can be the subject of a
compromise agreement;
(e) Intellectual property cases;
(f) Commercial or intra-corporate controversies;
(g) Environmental cases subject to the provisions
in Sec. 3, Rule 3 of the Rules in
Environmental Cases (A.M. No. 09-6-8-SC);
and
(h) Civil cases covered by the Rule on Summary
Procedure (Chapter 1, Sec. 1, A.M. No. 19-
10-20-SC, effective March 1, 2021).
Cases which cannot be subject to
compromise
(a) Civil involving
(1) The civil status of persons;
(2) The validity of a marriage or a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime
(b) habeas corpus petitions
(c) special proceedings cases for probate of a
will; and
(d) cases with pending applications for
restraining orders or preliminary injunctions.
However, in cases covered under paragraphs (a)
and (d) where the parties inform the court that
they have agreed to undergo mediation on soine
aspects thereof, e.g., custody of minor children,
separation of property, or support pendente lite,
the court shall refer them to mediation. (Chapter
1, Sec. 4, A.M. No. 19-10-20-SC, effective March
1, 2021).
Judgments in CAM
Judgments approving the compromise
agreements of the parties shall contain a
statement that the same were rendered through
CAM in order to distinguish them from judgments
based on compromise agreements entered into
during JDR (Chapter 2(B), Sec. 13, A.M. No. 19-
10-20-SC, effective March 1, 2021).
Judicial Dispute Resolution (JDR)
If no settlement was reached in CAM, the case
may further be referred to undergo JDR if the
judge of the court to which the case was originally
raffled is convinced that settlement is still
possible. (Rule 18, Sec. 9)
Conduct of JDR
The JDR shall be conducted within a non-
extendible period of fifteen (15) calendar days
from notice of failure of the court-annexed
mediation.
If the parties fail to settle during the first JDR
session, the JDR judge shall set the case for
another JDR session, provided that the fifteen
(15)-calendar day period has not lapsed
If judicial dispute resolution fails, the case shall
proceed to trial before the original court on the
dates agreed upon. (Chapter 2(C), Sec. 8, A.M.
No. 19-10-20-SC, effective March 1, 2021); (Rule
18, Sec. 9)
183
Confidentiality of Proceedings
All proceedings during the court-annexed
mediation and the judicial dispute resolution shall
be confidential (Rule 18, Sec. 9).
Non-Applicability to Environmental cases
and Small Claim Cases
1. In environmental cases, no JDR shall be
conducted. The conduct of mediation
proceedings shall be governed by Sections 3,
6, and 10, Rule 3 of A.M. No. 09-6-8-C on the
Rules of Procedure for Environmental Cases.
2. In small claims cases, Section 23 of the
Revised Rules of Procedure for Small Claims
Cases, as amended, shall apply. (Chapter
2(C), Sec. 10, A.M. No. 19-10-20-SC, effective
March 1, 2021);
JDR on Appeal
1. Within fifteen (15) calendar days from
receipt of the memorandum on appeal
and without prejudice to the filing of an
appellee's brief, the RTC Judge shall
determine if settlement is still possible.
2. Upon determination by the RTC Judge
that settlement is still possible, and with
the written conformity of the parties
through an Agreement to Mediate, the
RTC Judge shall issue an Order setting the
case for JDRA.
Note: The parties shall indicate in the
Agreement to Mediate that, despite
confidential information that may be
divulged during the JDR proceedings, the
RTC Judge having appellate jurisdiction
shall proceed to render judgment on
appeal if JDR fails.
3. The Order shall require the parties to
attend in person or, in the case of
corporate litigants, through a duly-
authorized representative.
4. If the RTC Judge should determine that
settlement is not possible, he/she shall
proceed to render judgment on appeal
(Chapter 3, A.M. No. 19-10-20-SC, effective
March 1, 2021); (Rule 18, Sec. 9)
Judgment After Pre-Trial
Without prejudice to a party moving for judgment
on the pleadings under Rule 34 or summary
judgment under Rule 35, the court shall motu
proprio include in the pre-trial order that the case
be submitted for summary judgment or judgment
on the pleadings, without need of position papers
or memoranda in the following instances:
• No more controverted facts; or
• No more genuine issue as to any material
fact;
• An absence of any issue; or
• Should the answer fail to tender an issue.
In such cases, judgment shall be rendered within
ninety (90) calendar days from termination of the
pre-trial.
The order of the court to submit the case for
judgment shall not be the subject to appeal or
certiorari (Rule 18, Sec. 10).
L. INTERVENTION (RULE 19)
Intervention is a remedy by which a third party,
not originally a party to the proceedings, becomes
a litigant therein for a certain purpose. It is
availed of to enable the third party to protect or
preserve a right or interest that may be affected
184
by those proceedings. This remedy, however, is
NOT A RIGHT. It is left to the court’s sound
discretion (Ongco vs. Dalisay, G.R. No. 190810,
July 18, 2012).
A proceeding in a suit or an action by which a
third person is permitted by the court to make
himself a party, either:
(1) Joining plaintiff in claiming what is sought by
the complaint,
(2) Uniting with defendant in resisting the claims
of the plaintiff, or
(3) Demanding something adverse to both of
them. (Gutierrez v. Villegas, G.R. No. L-
11848 May 31, 1962)
Purpose of Intervention
Its purpose is to afford one not an original party,
yet having a certain right/interest in the pending
case, the opportunity to appear and be joined so
he could assert or protect such right/interest
(Cariño v. Ofilada, G.R. No. 102836, January 18,
1993)
Nature of Intervention
Intervention is an ancillary remedy restricted in
purpose and in time. Intervention is a remedy by
which a third party, not originally impleaded in
the proceedings, becomes a litigant therein for a
certain purpose: to enable the third party to
protect or preserve a right or interest that may be
affected by those proceedings.
Nevertheless, the remedy of intervention is not a
matter of right but rests on the sound discretion
of the court upon compliance with the first
requirement on legal interest and the second
requirement that no delay and prejudice should
result as spelled out under Section 1, Rule 19 of
the Rules of Court.
Jurisprudene provides that intervention is not a
matter of absolute right but may be permitted by
the court when the applicant shows facts which
satisfy the requirements of the statute
authorizing intervention. Under our Rules of
Court, what qualifies a person to intervene is
his possession of a legal interest in the matter in
litigation or in the success of either of the parties,
or an interest against both; or when he is so
situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court or an officer thereof. As
regards the legal interest as qualifying factor, this
Court has ruled that such interest must be of a
direct and immediate character so that the
intervenor will either gain or lose by the direct
legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. (Republic v. Sereno,
G.R. No. 237428, May 11, 2018)
Intervention cannot alter the nature of the action
and the issues already joined. (Castro v. David,
G.R. No. L-8508, November 29, 1956)
Intervention is never an independent action, but
is ancillary and supplemental to the existing
litigation. (Saw vs CA, G.R. No. 90580, April 8,
1991) An independent controversy cannot be
injected in the suit by intervention since it would
enlarge the issues and expand the scope of the
remedies. (Mactan-Cebu Intl Airport Authority vs
Heirs of Minoza, G.R. No. 186045, February 2,
2011)
Persons Who May Intervene
(a) One who has a legal interest in the matter in
litigation;
(b) One who has legal interest in the success of
either of the parties;
185
(c) One who has an interest against both parties;
(d) One who is so situated as to be adversely
affected by the distribution or other
disposition of property in the custody of the
court or of its officer (Rule 19, Sec. 1)
Section 2, Rule 19 of the Rules requires a movant
to file the motion for intervention before the
RTC's rendition of judgment and to attach a
pleading-in-intervention. The court may allow
intervention after rendition of judgment if the
movant is an indispensable party. (Neptune Metal
Scrap Recycling, Inc. v. Manila Electric Co., G.R.
No. 204222, July 4, 2016)
Note: The right to intervene, however, is not an
absolute right as the granting of a motion to
intervene is addressed to the sound discretion of
the court and may only be allowed if the movant
is able to satisfy all the requirements.
(Commission on Audit v. Pampilo, Jr., G.R. Nos.
188760, 189060 & 189333, June 30, 2020, J.
Hernando)
Legal Interest
For a person to intervene in a suit, the interest
must be:
(a) Actual and material on a matter in litigation;
(b) Of such direct and immediate 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);
(c) Not simply contingent or expectant.
(Republic vs. Sereno G. R. No. 237428, May
11, 2018).
Requirement for Leave of Court
As intervention is not a matter of absolute right,
leave of court is required.
Intervention is only optional and permissive.
(Mabayo Farms, Inc. v. CA, G.R. No. 140058, 01
Aug. 2002).
Therefore, the court has the full measure of
discretion in permitting or disallowing the same.
(Yau v. Manila Banking Corporation, G.R. No.
126731, 11 July 2002)
It may only be permitted by the court if the
applicant shows facts which satisfy the
requirements authorizing intervention (Salazar,
The Fundamentals of Civil Procedure, 2021, P.
172)
Time to Intervene
General Rule: Before Rendition of Judgment
As provided in the Rules of Court, the motion for
intervention may be filed at any time before
rendition of judgment by the trial court. (Rule 19,
Sec. 2). Petitioner filed his motion only on April
25, 2002, way beyond the period set forth in the
rules. The court resolution granting private
respondent's petition for prohibition and lifting
the levy on the subject property was issued on
March 22, 2002. By April 6, 2002, after the lapse
of 15 days, the said resolution had already
become final and executory. (Yao v. Perello, G.R.
No. 153828, October 24, 2003)
Note: Intervention is not an independent action,
but is ancillary and supplemental to an existing
litigation (Ongco vs. Dalisay, G.R. No. 190810,
July 18, 2012). Hence, intervention after trial and
decision can no longer be permitted (Yau v.
Manila Banking Corporation, G.R. No. 126731,
July 11, 2002)
Exceptions: Intervention Allowed After
Rendition of Judgment
186
The Supreme Court has recognized the following
exceptions where intervention may be allowed
after rendition of judgment by the court:
(1) Intervention may be allowed on appeal,
provided that the intervenor is an
indispensable party (Galicia vs. Manliguez,
G.R. No. 155785, April 13, 2007)
(2) When the intervenor is the Republic of the
Philippines (Lim vs. Pacquing, G.R. 115044,
January 27, 1995)
(3) Where necessary to protect some interest
which cannot otherwise be protected, and
for the purpose of preserving the
intervenor’s right to appeal (Pinlac vs. CA,
G.R. No. 91486, September 10, 2003; and
(4) May be allowed during the pendency of the
appeal, where the interest of justice so
requires (Tahanan Dev. Corp. v. CA, G.R. No.
L-55771, November 15, 1982)
Factors which can be considered for the
relaxation of the period to intervene.
Although Rule 19 is explicit on the period when a
motion to intervene may be filed, the Court
allowed exceptions in several cases, viz.: This
rule, however, is not inflexible. Interventions
have been allowed even beyond the period
prescribed in the Rule, when demanded by the
higher interest of justice. Interventions have also
been granted to afford indispensable parties, who
have not been impleaded, the right to be heard
even after a decision has been rendered by the
trial court, when the petition for review of the
judgment has already been submitted for
decision before the Supreme Court, and even
where the assailed order has already become
final and executory. In Lim v. Pacquing, the
motion for intervention filed by the Republic of
the Philippines was allowed by this Court to avoid
grave injustice and injury and to settle once and
for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion
for intervention rests on the sound discretion of
the court after consideration of the appropriate
circumstances. We stress again that Rule 19 of
the Rules of Court is a rule of procedure whose
object is to make the powers of the court fully
and completely available for justice. Its purpose
is not to hinder or delay, but to facilitate and
promote the administration of justice. (Rodriguez
vs. Court of Appeals, G.R. No. 184589. June 13,
2013)
Matters to be considered by the court
(a) Whether or not the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties; and
(b) Whether or not the intervenor’s rights may
be fully protected in a separate proceeding
(Rule 19, Sec. 1) .
Pleadings Filed in Intervention
(1) Complaint-in-intervention – when the
intervenor asserts a claim against either or
all of the original parties (Rule 19, Sec. 3)
Note: 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.
(2) Answer-in-intervention – when the
intervenor unites with the defending party in
resisting a claim against the latter. (Rule 19,
Sec. 3)
Answer to Complaint-in-Intervention
The answer to the complaint-in-intervention shall
be filed within fifteen (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-
187
intervention should form part of the main case (Carbonilla v. Board of Airlines Representatives,
(Chipongian vs. Benitez-Lirio, G.R. No. 162692, G.R. Nos. 193247 & 194276, September 14,
August 26, 2015). 2011)

Requisites for a valid intervention Procedure for Intervention

(1) The movant has a legal interest in the matter The intervenor shall file a motion for
in litigation; and intervention attaching thereto his pleading-in-
(2) Intervention must not unduly delay or intervention.
prejudice the adjudication of the rights of the
parties, nor should the claim of the
intervenor be capable of being properly The motion and pleading shall be served upon
decided in a separate proceeding (Office of the original parties.
the Ombudsman vs. Sison, G.R. No. 185954,
February 16, 2010).
The answer to the complaint-in-intervention
Power of the Court to Allow or Deny an
shall be filed within fifteen (15) calendar days
Intervention from notice of the order admitting the same,
unless a different period is fixed by the court.
A court’s power to allow or deny intervention,
albeit discretionary in nature, is circumscribed by (Rule 19, Secs. 1 and 2)
the basic demand of sound judicial procedure that
only a person with interest in an action or Remedy from the denial of motion to intervene
proceeding may be allowed to intervene.
Otherwise stated, a court has no authority to
The remedy of the aggrieve party is appeal. The
allow a person, who has no interest in an action
allowance or disallowance of a motion to
or proceeding, to intervene therein.
intervene is addressed to the sound discretion of
the court hearing the case. This discretion, once
Consequently, when a court commits a mistake
exercised, is not reviewable by certiorari or
and allows an uninterested person to intervene in
mandamus save in instances where such
a case, the mistake is not simply an error of
discretion is exercised in an arbitrary or capricious
judgment, but one of jurisdiction (Añonuevo vs.
manner. M. De Leon, Remedial Law Reviewer-
Intestate Estate of Jalandoni, G.R. No. 178221,
Primer, 2021 Edition, p. 184; Gallego vs. Galang,
December 1, 2010).
G.R. No. 130228, July 27, 2004)

The permissive tenor of the Rules of Court shows

Intervention vs. Interpleader
the intention to give the courts the full measure
of discretion in allowing or disallowing the
Intervention Interpleader
intervention. Once the courts have exercised this
Rule 19 Rule 62
discretion, it could not be reviewed by certiorari
An ancillary action Independent and
or controlled by mandamus unless it could be
original (a Special
shown that the discretion was exercised in an
Civil Action)
arbitrary or capricious manner. Carbonilla, et al.,
Commenced by a motion Commenced by
failed to show that the Court of Appeals rendered
for leave to intervene the filing of a
its resolution in an arbitrary or capricious manner.

188
 Intervention Interpleader It is a process directed to It is a process
Rule 19 Rule 62 a person requiring him or directed to a
filed in a pending case complaint, it her to attend and to person requiring
testify: him or her to bring
attaching thereto the being an original
(a) At the hearing or him or her any
pleading-in-intervention action trial of an action; or books, documents
Filed by a person who Filed by a person (b) At any investigation or things under his
has legal interest in any who has no conducted by a or her, control on
of the following: a) the interest in the competent which he must
subject matter in subject matter of authority; or testify
(c) For the taking of his
litigation; b) the success the action or if he
or her deposition
of either party; c) an has an interest,
(Rule 21, Sec. 1)
interest against both d) the same is not is
he may be adversely not disputed by
Purpose
affected by a distribution the claimants.
There are times when the attendance of a person
or disposition of property
is necessary during trial or hearing, and to ensure
which is in the court’s or
such attendance, subpoena may be issued motu
its officer’s custody
proprio or on motion. (Salazar, The Fundamentals
If a complaint-in- Defendants are
of Civil Procedure, p. 178, 2021)
intervention is filed, the brought into the
defendants are already action because
Subpoena vs. Summons
parties to an existing they are sued and
Subpoena Summons
suit, not because of the impleaded as
An order to appear An order to answer
intervention, but such in the
and testify, or to the complaint (Rule 14,
because of the original complaint
produce books and Sec. 2).
suit.
documents (Rule 21,
Sec. 1).
M. SUBPOENA (RULE 21)
May be served to a Served on the
non-party (Rule 21, defendant (Rule 14,
Subpoena is a process directed to a person
Sec. 1). Sec. 2).
requiring him or her to attend and to testify at the
Requires tender of Does not need tender
hearing or the trial of an action, or at any
kilometrage, of kilometrage and
investigation conducted by competent authority,
attendance fee and other fees.
or for the taking of his deposition (Rule 21, Sec.
reasonable cost of
1).
production fee (Rule
21, Sec. 6).
It may also require him to bring with him any
books, documents, or other things under his
Contents
control, in which case it is called a subpoena
duces tecum. (ibid)
A subpoena shall:
(a) State the name of the court;
Subpoena Ad Subpoena Duces (b) State the title of the action or investigation;
Testificandum Tecum
(c) Be directed to the person whose attendance
is required;

189
(d) In the case of a subpoena duces tecum, shall
also contain reasonable description of books,
documents, or things demanded which must
appear in court (Rule 21, Sec 3)
Issuance of Subpoena
The subpoena may be issued by the following:
(1) The court before which the witness is
required to attend;
(2) The court of the place where the deposition
is to be taken;
(3) The officer or body authorized by law to do
so, in connection with investigations
conducted by said officer or body, such as:
▪ Ombudsman by RA no. 6770
▪ NBI by RA No. 10867
▪ Prosecutor
(4) Any Justice of the Supreme Court or the Court
of Appeals in any case or investigation
pending within the Philippines (Rule 21, Sec.
2).
Issuance of 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).
General A prisoner shall not be brought
Rule outside for appearance or
attendance in any court if:
• Sentenced to death, reclusion
perpetua, or life
imprisonment; an
• Confined in any penal
institution
Exception If authorized by the Supreme
Court ONLY
(Rule 21, Sec. 2)
Service of Subpoena
Service shall be made in the same manner as
personal or substituted service of summons.
The original shall be exhibited and a copy
delivered to the person on whom it is served,
tendering to him the fees for one day’s
attendance and the kilometrage allowed by these
rules. (Rule 21, Sec. 6)
The Supreme Court extended the service of
subpoena in civil cases through the following:
o Electronic mail
o Telephone calls (landline or mobile phones)
o Short Messaging Services (SMS) (OCA
Circular No. 265-2016, December 1, 2016)
Rule on the Cost for the Service of
Subpoena
Cost for court attendance and the production of
documents and other materials subject of the
subpoena shall be tendered or charged
accordingly. (Rule 21, Sec. 6)
Rationale for Service of Subpoena
The service must be made so as to allow the
witness a reasonable time for preparation and
travel to the place of attendance. (Rule 21, Sec.
6)
Note: When a subpoena is issued by or on behalf
of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made.
Tendering - a method of delivery, except that
the recipient has the choice not to accept the
tender. However, the act of tender completes the
responsibility of the person making the tender.
The tender may save the tendering party from a
penalty of non-performance or may, if the other
party unjustly refuses to accept the tender, it
places the other party in default (Black’s Law
dictionary 8th edition).
190
 Note: The remedy of the
party is to take the
Personal Appearance deposition of the witness
(Riguera, Primer-Reviewer
on Remedial Law, Vol. I Civil
A person who is present in court or before a
Procedure, p. 504, 2022).
judicial officer may be required to testify, as if he
or she were in attendance upon a subpoena (2) Where permission of the
issued by such a court or officer. (Rule 21, Sec. court in which the detained
7) prisoner’s case is pending
was not obtained (Rule
21, Sec. 10).
Compelling Attendance of Witnesses;
Contempt
Quashing a Subpoena

General Compelling Attendance of

A subpoena duces tecum may be quashed by the
Rule Witnesses: If the witness fails
to attend, the court may issue a court upon motion promptly made and in any
warrant to arrest the witness event before the time specified therein (Rule 21,
and bring him or her before the Sec. 4).
court or officer where his or her
attendance is required, upon Grounds for Quashing Subpoena
showing of the following:
• Failure of the witness to
attend; and Subpoena Ad Subpoena Duces
• Proof of service of subpoena Testificandum Tecum
(Rule 21, Sec. 8). (a) Witness is not (a) Unreasonable and
bound thereby. oppressive issuance
Contempt: Failure to obey a (b) Not thereof; or
subpoena without adequate meritorious; or (b) Relevancy of the
cause shall be deemed a (c) Not qualified to books, documents or
contempt of the issuing court. testify things does not
appear to be prima
• If the subpoena was not facie relevant to the
issued by a court, the issue; or
disobedience shall be (c) Failure to advance the
punished in accordance with reasonable cost of the
the applicable law or Rule production thereof by
(Rule 21, Sec. 9). the person in whose
Exception The provisions of Rule 21, behalf the subpoena
Sections 8 and 9, shall not apply was issued.
to the following: In either case
(1) Viatory Right - Where the The witness fees and kilometrage allowed
witness resides more than under the Rules wre not tendered when the
100 kilometers from his or subpoena was served.
her residence to the place (Rule 21, Sec. 4).
where he or she is to testify
by the ordinary course of
travel; and

191

N. COMPUTATION OF TIME (RULE 22)
Manner of Computing Time
In computing any period of time prescribed or
allowed by these Rules, or by order of the court,
or by any applicable statute, the following rule
shall be observed:
(1) 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.
(2) If the last day of the period falls on 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).
Article 13 of the Civil Code Applicable
When the law speaks of years, months, days or
nights, it shall be understood that:
• Years are of 365 days each;
• Months are of 30 days;
• Days are of 24 hours; and
• Nights are from sunset to sunrise.
If months are designated by their name, they
shall be computed by the number of days which
they respectively have.
Clarification provided in A.M. 00-2-14-SC;
Where the due date falls on a Saturday,
Sunday or Holiday
The clarification provided in A.M. 00-2-14-SC
actually covers a situation where the due date
falls on a Saturday, Sunday, or holiday. Precisely,
what such clarification wanted to address is the
erroneous claim that “the period of extention” in
such a case “is to be reckoned from the next
working day and not from the original expiration
of the period.”
The correct rule, according to the clarification, is
that “any extension of time to file the required
pleading should be counted from the expiration
of the period regardless of the fact that said due
date is a Saturday, Sunday, or holiday.”
For example, if a pleading is due on July 10 and
this happens to be a Saturday, the time for filing
it shall not run, applying Section 1 of Rule 21, on
July 10 (Saturday) nor on July 11 (Sunday) but
will resume to run on the next working day, which
is July 12 (Monday). The pleading will then be due
on the latter date. If the period is extended by 10
days, such 10 days will be counted, not from July
12 (Monday) but from the original due date, July
10 (Saturday) "regardless of the fact that said due
date is a Saturday." Consequently, the new due
date will be 10 days from July 10 or precisely on
July 20. (Reinier Pacific International Shipping,
Inc. v. Guevarra, G.R. No. 157020, [June 19,
2013)
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).
O. MODES OF DISCOVERY
Prior to the discovery procedures provided under
the Rules, a party would learn about the
opponent’s evidence only during trial proper.
192
(Riano, Civil Procedure: The Bar Lecture Series), Ley Construction and Dev. Corp., et al., G.R. No.
Vol. I, 2022 Edition, p. 510) 147143, March 10, 2006).

Presently, the rules of procedure have evolved Nature of Application of the Rules on Modes
wherein litigation has stopped to be a game of of Discovery
surprises because:
The application of the rules on modes of
1. Parties are now allowed to have knowledge discovery rests upon the sound discretion of the
of relevant facts possessed by the adverse court. In the same vein, the determination of the
party; and sanction to be imposed upon a party who fails to
2. To require the disclosure of evidence even
comply with the modes of discovery rests on the
prior to tirial (Ibid).
same sound judicial discretion. It is the duty of
Definition of Discovery the courts to examine thoroughly the
circumstances of each case and to determine the
Discovery is a device employed by a party to applicability of the modes of discovery, bearing
obtain information about relevant matters on the always in mind the aim to attain an expeditious
case from the adverse party, in preparation for administration of justice. It need not be
the trial. (Riano, Civil Procedure: The Bar Lecture emphasized that upon the court's shoulders
Series), Vol. I, 2022 Edition, p. 510) likewise rests the burden of determining whether
the response of the requested party is a specific
Purpose of the modes of discovery denial of the matters requested for admission.
(Lañada v. Court of Appeals, G.R. Nos. 102390 &
The purpose of discovery procedures is to permit 102404, February 1, 2002)
mutual knowledge before trial of all relevant facts
gathered by both parties so that either party may (1) Depositions pending action (Rule 23)
Maybe availed of Cannot be
compel the other to disorge facts whatever he has
without leave of court availed of
in his possession. (Ibid). and generally without without leave
court intervention of court
The various modes or instruments of discovery
are meant to serve as a (1) device, along with (2) depositions (whether (5) production
pre-trial under Rule 118, to narrow and clarify the by oral examination or
basic issues between the parties, and (2) device or written inspection
interrogatories) of
for ascertaining the facts relative to those issues.
under Rule 24) documents
purpose: to enable the parties, consistent with (3) interrogatories to or things
recognized privileges, to obtain the fullest parties under Rule 25 under Rule
possible knowledge of the issues and facts before (4) requests for 27
civil trials and thus prevent that said trials be admission under Rule (6) physical and
carried on in the dark. (M. De Leon, Remedial Law 26 mental
Reviewer-Primer, 2021 Edition, p. 188) examination
Under the Rules of Court, of persons
leave of court is not under Rule
Furthermore, it also eliminates unessential issues necessary to avail of said 28, which
from trial which therefore shortens the period of modes of discovery after may be
litigation (Hyatt Industrial Mfg. Corp., et al. vs. an answer to the granted

193
 complaint has been upon due
served. It is only when an application
answer has not yet been and showing
filed (but after jurisdiction of due cause
has been obtained over
the defendant or property
subject of the action) that
prior leave of court is
needed, the reason being
that at that time the
issues are not yet joined
and the disputed facts are
not clear.
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, pp. 188-189)
Modes of Discovery
Deposition During the pendency of an
pending action action, the testimony of
any person, whether a
party or not, may be taken
by deposition upon oral
examination or written
interrogatories. (Rule 23,
Sec. 1)
Deposition A person who desires to
before action perpetuate his or her own
testimony or that of
another person regarding
any matter that may be
cognizable in any court of
the Philippines, may file a
verified petition in the
court of the place of the
residence of any expected
adverse party. (Rule 24,
Sec. 1)
Deposition If an appeal has been
pending appeal taken from a judgment of
a court, including the
Court of Appeals in proper
cases, or before taking of
an appeal if the time
therefor has not expired,
the court in which the
judgment was rendered
may allow the taking of
depositions of witnesses to
perpetuate their testimony
for use in the event of
further proceedings in the
said court. (Rule 24, Sec.
7)
Interrogatories Any party desiring to elicit
to parties material and relevant facts
from any adverse party
shall file and serve upon
the latter written
interrogatories. (Rule 25,
Sec. 1)
Admission by At any time after issues
adverse party have been joined, a party
may file and serve upon
any other party a written
request for the admission
by the latter of:
(a) the genuineness of
any material and
relevant document; or
(b) of the truth of any
material and relevant
matter of fact set
forth in the request.
(Rule 26, Sec. 1)
Production or Upon motion of any party
inspection of showing good cause
documents or therefor, the court in
things which an action is pending
may order any party to:
(a) Produce and permit
the inspection and
copying of any
designated
documents; or
(b) Permit entry upon
designated land or
other property in his
possession or control
for the purpose of
inspecting or
photographing the
property or any
designated relevant
object or operation
thereon. Rule 27, Sec.
1)
Physical and In an action in which the
mental mental or physical
194
 examination of condition of a party is in
persons. controversy, the court in
which the action is
pending may in its
discretion order him or her
to submit to a physical or
mental examination by a
physician. (Rule 28. Sec.
1)
1. DEPOSITIONS (RULES 23 AND 24, SEE
PEOPLE VS. SERGIO, G.R. NO. 240053,
OCTOBER 9, 2019)
Depositions
A deposition is the testimony of a witness, put
or taken in writing, under oath or affirmation,
before a commissioner, examiner of other judicial
officer, in answer to interrogatory or cross-
interrogatory, and usually subscribed by the
witness (Ayala Land Inc. vs. Tagle, et. al., G.R.
No. 153667, August 11, 2005)
This testimony is taken out of court.
General Rule 23 is not applicable in
Rule criminal cases.
Exception People vs. Sergio
(G.R. No. 240053, October 9,
2019, J. Hernando)
The extraordinary factual
circumstances surrounding
the case of Mary Jane
warrant the resort to Rule 23
of the Rules of Court.
The deposition by written
interrogatories is pursuant
to Mary Jane's right to due
process.
The Supreme Court permitted
the taking of the testimony of
Mary Jane Veloso, who was
imprisoned in Indonesia, by way
of deposition by written
interrogatories. Although the rule
on deposition by written
interrogatories is inscribed under
Rule 23 of the Rules on Civil
Procedure, the Supreme Court
held that it may be applied
suppletorily in criminal
proceedings so long as there is
compelling reason.
The following are the
extraordinary circumstances in
Mary Jane Veloso’s case which
led the Court to allow the
suppletory application of Rule 23
in a criminal case:
(1) Mary Jane's conviction by
final judgment and her
detention in a prison facility
in Yogyakarta, Indonesia,
while awaiting execution by
firing squad;
(2) The grant by the Indonesian
President of an indefinite
reprieve in view of the
ongoing legal proceedings
against Cristina and Julius in
the Philippines; and
(3) (3) The conditions attached
to the reprieve particularly
that Mary Jane should
remain in confinement in
Indonesia, and any question
propounded to her must
only be in writing. She
cannot even take a single
step out of the prison facility
of her own volition without
facing severe consequences.
Scope and Limitations on taking of
deposition
Scope of Examination Limitations
The deponent may be if the examination
examined on all matters: is conducted in
195
 bad faith; or in The rule clearly provides that the testimony of
(1) Not privileged; such a manner as any person may be taken by deposition upon oral
(2) Relevant to the to annoy, examination or written interrogatories, at the
subject of pending embarrass, or instance of any party. (San Luis vs. Rojas, G.R.
action whether oppress the
No. 159127, March 3, 2008)
relating to the claim person who is the
or defense of any subject of the
party including inquiry; or when When depositions taken
(a) Description the inquiry
(b) Existence touches upon the Depositions may be taken at any time after the
(c) Nature irrelevant or institution of any action, whenever necessary or
(d) Custody encroaches upon
convenient. There is no rule that limits
(e) Condition the recognized
(f) Identity and domains of deposition-taking only to the period of pre-trial or
location of the privilege. before it; no prohibition against the taking of
person having (Jonathan Landoil depositions after pre-trial.” There can be no valid
knowledge of International Co., objection to allowing them during the process of
relevant facts; Inc. v. Spouses executing final and executory judgments, when
(g) Location of any Mangudadatu, the material issues of fact have become
books, G.R. No. 155010,
numerous or complicated. (Jonathan Landoil
documents, or August 16, 2004)
other tangible International Co., Inc. v. Spouses Mangudadatu,
things G.R. No. 155010, August 16, 2004)
(3) Under such
limitations as the Matters covered by Sections 3-18 of Rule
court may order 132 for purposes of taking of deposition
under Secs. 16 and
18 of the Rules of
Sections 3-18 of the Revised Rules on Evidence
Court (Rule 23, Sec.
2). covers the following, to wit:

Two Modes or Ways of Taking Depositions
Pending Action under Rule 23:
(1) Upon Oral Examination; and
(2) Upon Written Interrogatories
Note: The deposition of a person confined in
prison may be taken only by leave of court. (Rule
23, Sec. 1)
Persons Who May Avail
The rule does not make a distinction or restriction
as to who can avail of deposition.
(a) Rights and obligations of a witness (Sec. 3);
(b) Order of examination of an individual
witness (Sec. 4);
(c) Direct examination (Sec. 5);
(d) Cross-examination (Sec.6);
(e) Re-direct examination (Sec. 7);
(f) Re-cross examination (Sec. 8);
(g) Recalling witness (Sec. 9);
(h) Leading and misleading questions (Sec. 10);
(i) Impeachment of adverse party's witness
(Sec. 11);
(j) Party may not impeach his own witness (Sec.
12);
(k) How witness was impeached by evidence of
inconsistent statements (Sec.13);
(l) Evidence of good character of a witness
(Sec.14);
(m) Exclusions and separation of witnesses
(Sec.15);

196
(n) When a witness may refer to memorandum
(Sec.16);
(o) When part of transaction, writing or record
given in evidence, the remainder admissible
(Sec. 17); and
(p) Right to inspect writing shown to witness
(Sec. 18).
Use of Deposition Against a Party
The following are required before any part or all
of a deposition may be used against a party:
(1) The deposition is admissible under the rules
on evidence;
(2) The party against whom the deposition is
used was present or represented at the
taking of the deposition or had due notice
thereof; and
(3) The use of deposition is in accordance with
any of the recognized purposes under the
Rules of Court (Rule 23, Sec. 4)
Use of Deposition Pending Action
Will be
Use of Deposition
Used By
Any party For contradicting or for
impeaching the testimony of
deponent as a witness (Rule 23,
Sec. 4[a])
Adverse For any purpose, when
part 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 (Rule 23,
Sec. 4[b])
Any party For any purpose, if the court
finds that the:
(1) Witness is Dead; or
(2) Witness Resides at a
distance more than 100
kilometers from the 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 that his 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
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 To require party offering to
party introduce all of it which is
relevant to the part introduced
(Rule 23, Sec. 4[d])
Any party To introduce any other parts,
when the party using the
deposition is offering only a part
of it in evidence (Rule 23, Sec.
4[d])
Note: While depositions may be used as
evidence in court proceedings, they are generally
not meant to be a substitute for the actual
testimony in open court of a party or witness.
(Sales v. Sabino, G.R. No. 133154, December 9,
2005)
Depositions may be used without the
deponent being actually called to the
witness stand by the proponent
On the use of depositions taken, we refer to Rule
23, Section 4 of the Rules of Court. This Court has
held that "depositions may be used without the
197
deponent being actually called to the witness
stand by the proponent, under certain conditions
and for certain limited purposes." These
exceptional cases are enumerated in Rule 23,
Section 4 (c).
The difference between the taking of depositions
and the use of depositions taken is apparent in
Rule 23, which provides separate sections to
govern them. The right to take statements and
the right to use them in court have been kept
entirely distinct. The utmost freedom is allowed
in taking depositions; restrictions are imposed
upon their use. As a result, there is accorded the
widest possible opportunity for knowledge by
both parties of all the facts before the trial. The
deposition serves the double function of a
method of discovery — with use on trial not
necessarily contemplated — and a method of
presenting testimony. Accordingly, no limitations
other than relevancy and privilege have been
placed on the taking of depositions, while the use
at the trial is subject to circumscriptions looking
toward the use of oral testimony wherever
practicable. (Santamaria v. Cleary, G.R. Nos.
197122 & 197161, June 15, 2016)
Effect if deposition does not conform to the
requirements of law
When a deposition does not conform to the
essential requirements of law and may
reasonably cause material injury to the adverse
party, its taking should not be allowed.
In Fortune Corporation vs. Court of Appeals, this
Court set aside upon review by certiorari the
order of the trial court allowing deposition
because the order did not conform to the
essential requirements of law and may
reasonably cause material injury to the adverse
party: The rule is that certiorari will generally not
lie to review a discretionary action of any tribunal.
Also, as a general proposition, a writ
of certiorari is available only to review final
judgment or decrees, and will be refused where
there has been no final judgment or order and
the proceeding for which the writ is sought is still
pending and undetermined in the lower tribunal.
Pursuant to this rule, it has been held
that certiorari will not lie to review or correct
discovery orders made prior to trial. This is
because, like other discovery orders, orders made
under Section 16, Rule 24 are interlocutory and
not appealable considering that they do not finally
dispose of the proceeding or of any independent
offshoot of it. However, such rules are subject to
the exception that discretionary acts will be
reviewed where the lower court or tribunal has
acted without or in excess of its jurisdiction,
where an interlocutory order does not conform to
essential requirements of law and may
reasonably cause material injury throughout the
subsequent proceedings for which the remedy of
appeal will be inadequate, or where there is a
clear or serious abuse of discretion. (NorthWest
Airlines, Inc. v. Cruz, G.R. No. 137136, November
3, 1999)
Effect of Substitution of Parties
Substitution of parties does not affect the right to
use depositions previously taken. (Rule 23, Sec.
5)
And 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. (ibid)
Objections to Admissibility of a Deposition
198
 diligence might have been,
Subject to the provisions regarding the effect of ascertained. (Rule 23, Sec.
errors and irregularities in depositions (Rule 23, 29)
Sec. 29), objection may be made at the trial or
hearing to receiving in evidence any depositions Note: The deposition of a person confined in
or part thereof for any reason which would prison may be taken only by leave of court ( Rule
require the exclusion of the evideince if the 23, Sec. 1).
witness were then present and testifying.
Effects of Taking Depositions
Effects of Failure to Object to Errors and
Irregularities in Depositions A party shall not be deemed to make a person his
or her own witness for any purpose by taking his
(1) As to notice Waived unless written or her deposition (Rule 23, Sec. 7).
objection is promptly
served upon the party Effect of Using Depositions
giving the notice.
(2) As to Waived unless made General The introduction in evidence of
disqualification before the taking of the Rule the deposition or any part
of officer deposition begins or as thereof for any purpose makes
before whom soon thereafter as the the deponent the witness of the
deposition is disqualification becomes party introducing the deposition
taken known or could be Exception The introduction in evidence of
discovered with the deposition will not the make
reasonable diligence. the deponent his or her witness:
(3) As to Not waived by failure to (a) If it is introduced to impeach
competency or make them before or or contradict the witness; or
relevancy of during the taking of the (b) If it is the deposition of the
evidence deposition, unless the opposing party
ground of the objection is (Rule 23, Sec. 8).
one which might have
been obviated or removed
Rebutting Deposition
if presented at that time.
(4) As to oral Waived unless
examination reasonable objection At the trial or hearing, any party may rebut any
and other thereto is made at the relevant evidence contained in a deposition,
particulars taking of the deposition. whether introduced by him or by any other party
(5) As to form of Waived unless served in (Rule 23, Sec. 9).
written writing upon the party
interrogatories propounding them within
the time allowed for
serving succeeding cross
or other interrogatories
(6) As to manner Waived unless a motion
of preparation to suppress the deposition
or some part thereof is
made with reasonable
promptness after such
defect is, or with due

199
Persons before whom deposition may be has been ―returned unexecuted‖ as is apparent
taken from Form 21 of the ―Judicial Standard Forms‖
appended to the Rules of Court (Ibid)
Within the Outside the
Philippines Philippines Also known as letters of request, Letters Rogatory
(1) Judge (1) On notice, before a is a document issued by one court to a foreign
(2) Any person Secretary of Embassy court requesting it to:
authorized to or Legation, Consul
administer General, Consul, Vice-
oaths, if the Consul, or consular (a) Take evidence from a specific person within
parties so agent of the the foreign jurisdiction or serve process on a
stipulate in Philippines person whether real or artificial within the
writing (2) Before such person or foreign jurisdiction;
(3) Notary Public officer as may be (b) Return the testimony or proof of service for
appointed by use in the pending case (Black ‘s Law
commission or under Dictionary, 8th edition).
letters rogatory
(3) Any person Necessity of Leave of Court for the
authorized to Issuance of Letters Rogatory
administer oaths, if
the parties so Leave of court is not required when the
stipulate in writing
deposition is to be taken before a secretary of
(Rule 23, Secs. 10-11)
embassy or legation, consul general, consul, vice
consul, or consular agent of the Republic of the
Letter Commission
Philippines and the defendant‘s answer has
already been served.
Commission is an instrument issued by a court of
justice, or other competent tribunal, to authorize
However, if the deposition is to be taken in a
a person to take depositions, or do any other act
foreign country where the Philippines has no
by authority of such court or tribunal (Dasmariñas
secretary or embassy or legation, consul general,
Garments, Inc. vs Reyes, G.R. No 108229, August
consul, vice consul or consular agent, it may be
24, 1993).
only taken before such person or officer as may
be appointed by commission or under letters
Letters Rogatory
rogatory (Dulay vs Dulay, G.R. No.158857,
November 11, 2005).
It is an instrument sent in the name and by the
authority of a judge or court to another,
Distinctions between letter commission
requesting the latter to cause to be examined,
and letter rogatory
upon interrogatories filed in a cause pending
before the former, a witness who is within the
Letter Letter Rogatory
jurisdiction of the judge or court to whom such
Commission
letters are addressed. (Dasmariñas Garments, Letter commission Letter rogatory — is an
Inc. vs Reyes, G.R. No 108229, August 24, 1993). — is an instrument instrument whereby a
issued by a court of foreign court is
Noteworthy x xx is that letters rogatory may be justice, or other informed of the
applied for and issued only after a commission competent tribunal pendency of a case and

200
 to authorize a the name of the name is not known, a general description
person to take de- foreign witness, and is sufficient to identify him or her or the particular
positions, or do any requested to cause class or group to which he or she belongs.
other act by their depositions to be On motion of any party upon whom the notice is
authority of such taken in due course of
served, the court may, for cause show, enlarge or
court or tribunal. law for the furtherance
of justice, with an offer shorten the time (Rule 23, Sec. 15).
on the part of the court
making the request, to Deposition upon Written Interrogatories
do the like for
theother, in a similar (1) The party desiring to take the deposition
case. of any person shall serve written
Letter commission is In letter rogatory, it is interrogatories upon every other party
addressed to a non- addressed to a judicial with a notice.
judicial foreign officer of a foreign
officer who will take country who will direct
the deposition. the taking of the
deposition. (2) The notice shall state the name and
In letter In letter rogatory, the address of the person who is to answer
commission, the procedure applicable the written interrogatories and the name
rules which are will that be of the or descriptive title and address of the
applicable are those foreign court. officer before whom the deposition is to
of the requesting be taken.
court.
In letter In letter rogatory, it is
commission, it is allowed if commission (3) Within 10 calendar days thereafter, a
allowed if the was party so served may serve cross-
permission of the Disallowed by the interrogatories upon the party proposing
foreign country is foreign country to take the deposition.
given.
Lastly, in In letter rogatory,
commission leave of leave of court is (4) Within 5 calendar days thereafter, the
court is not necessary. party proposing to take the deposition
necessary. may serve re-direct interrogatories upon
(Tan, Civil Procedure: A Guide for the Bench and a party who has served cross-
the Bar, Book I, 2020, pp. 909-910) interrogatories.

(5) Within 3 calendar days after thereafter, a

Deposition upon Oral Examination party may serve recross-interrogatories
upon the party proposing to take the
The party desiring to take the deposition of any deposition.
(Rule 23, Sec. 25)
party shall give reasonable notice in writing to
every other party to the action.
Note: Under Rule 23, Sec. 25, all questions are
prepared BEFORE the date of the deposition
The notice shall state the time and place for
taking.
taking the deposition and the name and address
of each person to be examined, if known. If the

201
 How to take (1) Serve them upon every
deposition of a other party with a
person upon notice;
written upon (2) It shall state the name
written and address of the
interrogatories person who is to
shall: answer them; and
(3) It shall state the name
or descriptive title and
address of the officer
before whom the
deposition is to he
taken.
When to file Within ten (10) calendar
cross- days thereafter, a party so
interrogatories served may serve cross-
interrogatories upon the
party proposing to take the
deposition.
When to file Within five (5) calendar
re-direct days thereafter the latter
interrogatories may serve re-direct
interrogatories upon a
party who has served
cross-interrogatories.
When to file Within three (3) calendar
recross- days after being served
interrogatories with re-direct
interrogatories, a party
may serve recross-
interrogatories upon the
party proposing to take the
deposition.
(Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book I, 2020, pp. 932-933)
Orders for the protection of parties and
deponents
After notice is served for taking a deposition by
oral examination, upon motion seasonably made
by any party or by the person to be examined and
for good cause shown the court in which the
action is pending may make the following orders:
(a) That the deposition shall Not be taken;
(b) That the deposition may be taken only at
some Designated place other than that
stated in the notice;
(c) That the deposition may be taken only on
Written interrogatories;
(d) That Certain matters shall not be inquired
into;
(e) That the Scope of the examination shall be
held with no one present except the parties
to the action and their officers or counsel;
(f) That after being sealed the deposition shall
be Opened only by order of the court;
(g) That Secret processes, developments, or
research need not be disclosed;
(h) That the Parties shall simultaneously file
specified documents or information enclosed
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 party or
witness from annoyance, embarrassment, or
oppression (Rule 23, Sec. 16).
Jurisprudence has discussed how "[u]nder the
concept adopted by the new Rules, the deposition
serves the double function of a method of
discovery — with use on trial not necessarily
contemplated — and a method of presenting
testimony." The taking of depositions has been
allowed as a departure from open-court
testimony. Rule 23, Section 1 of the Rules of
Court gives utmost freedom in the taking of
depositions. Section 16 on protection orders,
which include an order that deposition not be
taken, may only be issued after notice and for
good cause shown. However, petitioners'
arguments in support of the trial court's Order
denying the taking of deposition fails to convince
as good cause shown. (Santamaria v. Cleary, G.R.
Nos. 197122 &197161, June 15, 2016)
Stage/s of proceeding when a deposition
be taken
There is no rule that limits deposition- taking only
to the period of pre-trial or before it; no
202
prohibition against the taking of depositions after consul, vice-consul or
pre-trial. consular agent (Sec. 11)
How By deposition upon oral
Indeed, the law authorizes the taking of examination or written
interrogatories.
depositions of witnesses before or after an appeal
is taken from the judgment of a Regional Trial
Depositions Before Action or Pending
Court “to perpetuate their testimony for use in the
Appeal (Rule 24)
event of further proceedings in the said court”
(Rule 134, Rules of Court), and even during the
“Deposition in Perpetuam Rei Memoriam”
process of execution of a final and executory
or Perpetuation of Testimony
judgment (Dasmariñas Garments vs. Reyes, G.R.
No. 108229, August 24, 1993.)
(A) Deposition Before Action

Summary of Depositions Pending Action Availed of when a perrson desires to perpetuate

under Rule 23 his or her own testimony or that of another
person.
At whose Any party upon ex parte
Instance may motion (Sec. 1)
Scope
be taken
Whose Any person, whether a Any matter that may be cognizable in any court
testimony may party or not (Sec. 1) of the Philippines.
be taken
When Before summons has Venue RTC of the place of the residence of any
been served - with leave expected adverse party, because this is an action
of court incapable of pecuniary estimation.

After answer has been

served - without leave of Procedure
court (Sec. 1)
Against whom Any party who was (1) The petitioner files a verified petition.
present or represented at (Rule 24, Sec. 1).
the taking of the
deposition or who had due
notice thereof (Sec. 4) (2) The petitioner shall serve a notice upon
Before whom In the Philippines each person named in the petition as an
• Judge expected adverse party, together with a
• Notary public copy of the petition (Rule 24, Sec. 3).
• Any person authorized
to administer oath as
agreed by the parties
(Sec. 10) (3) The petition shall state that the
petitioner will apply to the court, at a
In foreign countries: time and place named therein, for the
▪ Also, by persons order described in the petition (Rule 24,
mentioned above Sec. 3).
Secretary of Embassy or
legation, consul-general,

203
 (4) At least 20 calendar days before the date
of the hearing, the court shall cause When Applicable
notice thereof to be served on the
parties and prospective deponents in the (a) If an appeal has been taken from a judgment
manner provided for service of summons
of a court, including the CA in proper cases;
(Rule 24, Sec. 3). or
(b) Before the taking of an appeal if the time
therefor has not expired. (Rule 24, Sec. 7).
(5) If the court is satisfied that the
perpetuation of the testimony may Use of Deposition Pending Appeal
prevent a failure or delay of justice, it
shall make an order:
(a) To allow appellate court to admit evidence;
▪ Designating or describing the persons
(b) Retrial;
whose deposition may be taken; and
(c) New Trial;
▪ Specifying the subject matter of the
(d) Remand for Further Proceedings (Rule 24,
examination or written
Sec. 6)
interrogatories (Rule 24, Sec. 4).
Purpose: To perpetuate the testimony for use in
the event of further proceedings in the said court
(6) Depositions may then be taken in
(Rule 24, Sec. 7).
accordance with Rule 23 before the
hearing (Rule 24, Sec. 4).
Where taken How taken
The petition shall be entitled in the name of the In the court in The party who desires to
which the perpetuate the testimony
petitioner and shall show:
judgment (which may make a motion in the
must be final BUT said court for leave to
(a) that the petitioner expects to be a party to an not executory) take deposition, upon the
action in a court of the Philippines but is was rendered same notice and service
presently unable to bring it or cause it to be (Rule 24, Sec. 7). as if the action was
brought; pending therein (Rule 24,
(b) the subject matter of the expected action and Sec. 4).
his or her interest therein;
(c) the Facts which he or she desires to establish
Contents of the motion:
by the proposed testimony and his or her
reasons for desiring to perpetuate it;
(d) the names or a description of the persons he (a) Names and addresses of the persons to be
or she expects will be adverse parties and their examined;
addresses so far as known; and, (b) The Substance of the testimony which is
(e) the names and addresses of the persons to be expected to be elicited from each; and,
Examined and the substance of the testimony (c) The Reason for perpetuating testimony.
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to If the court finds that the perpetuation of the
take the depositions of the persons to be testimony is proper to avoid a failure or delay of
examined named in the petition for the justice, it may make an order allowing the
purpose of perpetuating their testimony (Rule deposition to be taken.
24, Sec. 2).
The depositions may then be taken and used in
(B) Depositions Pending Appeal
the same manner and under the same conditions

204
as are prescribed in these Rules for depositions 2. INTERROGATORIES TO PARTIES
taken in pending actions. (Rule 24, Sec. 7). (RULE 25)

Uses; Scope of inquiry in deposition Purpose

Matters which are relevant to the subject of the
pending action:
(1) Matters which are not privileged; and
(2) 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.
Availed of by a party to the action for the purpose
of eliciting material and relevant facts from any
adverse parties. (Rule 25, Sec. 1)
It is to assist the parties in clarifying the issues
and in ascertaining the facts involved in a case.
Philippine Health Insurance Corporation vs. Our
Lady of Lourdes Hospital, G. R. No. 193158,
November 11, 2015).

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.
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
Use of deposition under Rule 24 testify in its behalf. (Rule 25, Sec. 1).

If a deposition to perpetuate testimony is taken How served

under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be used With leave of court Without leave of
in any action involving the same subject matter court
subsequently brought in accordance with the Before answer has Only after answer has
provisions of Sections 4 and 5 of Rule 23. been served been served for the
first set of
interrogatories
Deposition Deposition Before
(Rule 23, Sec. 1)
Pending Action Action
(Rule 23) (Rule 24)
Pending action. No Action. Notes:

Terminated in the trial • No party may, without leave of court, serve

court but no entry of more than one set of interrogatories to be
judgment. answered by the same party (Rule 25, Sec. 4).
Initiated thru notice. By verified petition.
• Written interrogatories and the answers
thereto must both be filed and served.

205
 Answers may constitute judicial admissions
(Regalado, Remedial Law Compendium, Vol. Answer to Written Interrogatories
II, 9th., Rev. Ed p. 686).
The interrogatories shall be answered:
• Interrogatories may embrace any relevant
(1) Fully in writing; and
matter, UNLESS the same is privileged or
(2) Signed and sworn to by the person making
prohibited by a court order (Araneta, Inc. vs.
them. (Rule 25, Sec. 2)
Rodas, G.R. No. L-2363 September 23, 1948).
General Rule Exception
• Since answers to interrogatories may be used
Copy of the answers When the court, on
in the same manner as a deposition, such may
shall be filed and motion and for good
also be used as a basis for Summary
served on the party cause shown, extends
Judgment under Rule 35 (Rule 25, Sec. 5; Rule
submitting the or shortens the time.
23, Sec. 4).
interrogatories within
15 calendar days after
Remedy in case of denial of written service thereof.
interrogatories (Rule 25, Sec. 2)

The trial court’s orders denying the written Objections to Interrogatories

interrogatories were interlocutory in nature for
they leave something more to be done on the Objections may be presented to the court within
merits of the case. And the extraordinary writ 10 calendar days after the service thereof, with
of certiorari is generally not available to challenge notice as in case of motion (Rule 25, Sec. 3).
an interlocutory order of a trial court, the proper
remedy in such cases being an ordinary appeal Answers shall be deferred until the objections are
from an adverse judgment where incorporated in resolved which shall be at as early a time as is
said appeal are the grounds for assailing the practicable (Rule 25, Sec. 3).
interlocutory order. Nonetheless, this by no
means is an absolute rule. If the assailed Deposition Upon Written Interrogatories
interlocutory order is patently erroneous and the vs. Interrogatories to Parties
remedy of appeal would not afford adequate and
expeditious relief, certiorari may be allowed as a Deposition Upon Interrogatories To
mode of redress. This Court finds that the orders Written Parties
disallowing petitioner's written interrogatories are Interrogatories (Rule 25)
patently erroneous, hence, the resort (Rule 23)
to certiorari is warranted. (Ong v. Mazo, G.R. No. Deponent may be a Deponent must be a
145542, June 4, 2004) party or ordinary party.
witness.
Scope and Use of Interrogatories Covers direct, cross, Covers only one set of
redirect, re-cross interrogatories.
Any matters that can be inquired into under interrogatories.
Section 2 of Rule 23, and the answers may be
used for the same purposes provided in Sec. 4 of
Rule 23. (Rule 25, Sec. 5)

206
 Proceeded upon with No intervention of (Rule 25, Sec. 6)
the intervention of the such an officer.
officer authorized by Interrogatories are Note: One of the purposes of the above rule is
the court to take directed served to the to prevent fishing expeditions and needless
deposition. party himself. delays; it is there to maintain order and facilitate
No fixed time to 15 days to answer the conduct of trial. (Sps. Afulugencia vs.
answer. unless extended or Metrobank, G.R. No. 185145, February 5, 2014).
reduced by
the Court It will be presumed that a party who does not
Binding to all those Binding to the parties serve written interrogatories on the adverse party
present during the only. beforehand will most likely be unable to elicit
deposition. facts useful to its case if it later opts to call the
adverse party to the witness stand as its witness.
Interrogatories vs. Bill of Particulars (Ibid)

Interrogatories Bill Of Particulars Instead, the process could be treated as a fishing

A party may properly A party may properly expedition or an attempt at delaying the
seek disclosure of seek disclosure only of proceedings; it produces no significant result that
matter of proof which matter which define a prior written interrogatories might bring. (Ibid)
may later be made a the issues and become
part of the records as part of the pleadings. 3. ADMISSION BY ADVERSE PARTY
(RULE 26)
evidence.
Not directed to a Designed to clarify
Purpose
particular pleading. ambiguities in a
Instead, they seek to pleading or to state
The purpose of this mode of discovery is to allow
disclose all material with sufficient
one party to request the adverse party, in writing,
and relevant facts from definiteness allegations
to admit certain material and relevant matters
a party. in a pleading. Hence,
which, most likely, will not be disputed during the
it is a direct pleading.
trial. (Riano, Civil Procedure (The Bar Lecture
(Riano, Civil Procedure: The Bar Lecture Series),
Series), Vol. I, p. 525, 2022)
Vol. I, 2022 Edition, p. 523)
In order to avoid the unnecessary inconvenience
Effect of Failure to Serve Written
to the parties in going through the rigors of proof
Interrogatories
before the trial, a party may request the other to:

General A party not served with written

(a) Admission of the genuineness of any
Rule interrogatories may NOT be
material and relevant document (not
compelled by the adverse party
actionable documents) described in and
to give:
exhibited with the request; or
(a) Testimony in open court; or,
(b) Deposition pending appeal.
(b) Admission of the truth of any material and
Exception Unless thereafter allowed by the
relevant matter of fact set forth in the
court for good cause shown and
request (Rule 26, Sec. 1).
to prevent a failure of justice.

207
When Request is Made
An admission is any statement of fact made by a
A party may file and serve the written request at party against his interest or unfavorable to the
any time after issues have been joined (Rule 26, conclusion for which he contends or is
Sec. 1). inconsistent with the facts alleged by him.
(Lacbayan vs. Samoy, G.R. No. 165427, March
Notes: 21, 2011)

Actionable Document under Rule 8 is a written Requirements in order that admission be

instrument upon which the action or defense is admissible
based.
To be admissible, an admission must:
Documents sought to be admitted under the (1) Involve matters of fact, and not of law;
mode of discovery under Rule 26 are other (2) Be categorical and definite;
written instruments where action or defense are (3) Be knowingly and voluntarily made; and
(4) Be adversed to the admitter's interests,
not based (Allied Agri-Business Dev‘t. Co., Inc. vs.
otherwise it would be self-serving and
CA, et al., G.R. No. 118438, December 4, 1998; inadmissible. (ibid)
Rule 26, Sec. 2).
General Each of the matters of which an
A request for admission is proper when the Rule admission is requested shall be
genuineness of an evidentiary document is deemed admitted.
sought to be admitted. If not denied under oath Exception If, within a period designated in
in accordance with Section 2, its genuineness is the request or within such further
time as the court may allow on
deemed admitted (Ibid).
motion, the party to whom the
request is directed files and
Distinguished from Written Interrogatories serves upon the party requesting
the admission, a sworn
Written Admission statement:
interrogatories by adverse
(Rule 25) party (a) denying specifically the
matters of which an
(Rule 26)
admission is requested; or,
Adverse party or Adverse party only. (b) setting forth in detail the
witness. reasons why he or she cannot
NOT required to deny Required to admit or truthfully either admit or
or admit anything. deny anything. deny those matters.
Written request must Written request must (Rule 26, Sec. 2)
be filed in court and be filed in court and
served on the adverse served on the adverse Note: The rationale for this Rule is that
party. party. "admissions by an adverse party as a mode of
Must be objected to Must be objected to discovery contemplates of interrogatories that
within 10 days. within 15 days. would clarify and tend to shed light on the truth
or falsity of the allegations in a pleading, and does
not refer to a mere reiteration of what has already
Implied Admission by Adverse Party
been alleged in the pleadings; or else, it

208
constitutes an utter redundancy and will be a
useless, pointless process which petitioner should
not be subjected to." (Duque vs Spouses Yu, G.
R. No. 226310, February 19, 2018)
Limitations on “Implied Admission Rule”
In this case, the redundant and unnecessarily
vexatious nature of petitioners' Request for
Admission rendered it ineffectual, futile, and
irrelevant so as to proscribe the operation of the
implied admission rule in Section 2, Rule 26 of
the Rules of Court. There being no implied
admission attributable to respondents' failure to
respond, the argument that a preliminary hearing
is imperative loses its point. (Limos v. Spouses
Odones, G.R. No. 186979, August 11, 2010)
Period to Comply
The period within which to comply to the request
for admission must be designated in the request.
Such period shall not be less than fifteen (15)
calendar days after service thereof. (Rule 26, Sec.
2)
Objections to any request for admission
These 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).
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).
Note: A request for admission can be the basis
thereof when its subject is deemed to have been
admitted by the party as a result of that party’s
failure to respond to that request (Estate of
Ferdinand E. Marcos vs. Republic, G. R. No.
213037, January 19, 2017).
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).
Clearly, once a party serves a request for
admission as to the truth of any material and
relevant matter of fact, the party to whom such
request is served has 15 days within which to file
a sworn statement answering it. In case of
failure to do so, each of the matters of
which admission is requested shall be
deemed admitted.This rule, however, admits
of an exception, that is, when the party to
whom such request for admission is served
had already controverted the matters
subject of such request in an earlier
pleading. Otherwise stated, if the matters in a
request for admission have already been
209
admitted or denied in previous pleadings by the under Rule 23 or other measures under Rule 27
requested party, the latter cannot be compelled and 29 within five days from the filing of the
to admit or deny them anew. In turn, the answer (A.M. No. 03-1-09-SC, IA, 1, 1.1, 1.2, July
requesting party cannot reasonably expect 13, 2004).
a response to the request and, thereafter,
assume or even demand the application of Effect of Admission
the implied admission rule in Section 2,
Rule 26. The rationale is that "admissions by an An admission under this mode of discovery is for
adverse party as a mode of discovery the purpose of the pending action only and shall
contemplates of interrogatories that would clarify not be deemed an admission by him or her for
and tend to shed light on the truth or falsity of any other purpose. Moreover, the admission
the allegations in a pleading, and does not refer cannot be used against the admitting party in any
to a mere reiteration of what has already been other proceeding (Rule 26, Sec. 3).
alleged in the pleadings; or else, it constitutes an
utter redundancy and will be a useless, pointless Withdrawal of Admission
process which petitioner should not be subjected
to."||| (Duque v. Spouses Yu, G.R. No. 226130, Admissions made under this mode of discovery,
February 19, 2018) whether express or implied, are not final and are
irrevocable.
Effect of Not Filing a Written Request for
Admission The court may allow the party making an
admission under this Rule, whether express or
General Rule Exception implied, to withdraw or amend it upon such terms
The party who fails to Unless otherwise as may be just.
file and serve a allowed by the court
request for admission for good cause shown 4. PRODUCTION OR INSPECTION OF
on the adverse party and to prevent a DOCUMENTS OR THINGS (RULE 27)
shall NOT be failure of justice.
permitted to present
Purpose: The purpose of this mode of discovery
evidence on such
material and relevant is to allow a party to seek an order from the court
facts at issue which in which the action is pending to:
are, or ought to be,
within the personal (a) order any party to produce and permit the
knowledge of the inspection and copying or photographing, by
adverse party. or on behalf of the moving party, of any
(Rule 26, Sec. 5) designated documents, papers, books,
accounts, letters, photographs, objects or
Within one day from receipt of the complaint, the tangible things, not privileged, which
rule mandates not only the preparation of the constitute or contain evidence material to any
matter involved in the action and which are
summons but also the issuance of an order
in his or her possession, custody or control;
requiring the parties to avail of interrogatories to or
parties under Rule 25 and request for admission
by adverse party under Rule 26. The parties, (b) order any party to permit entry upon
however, may use, at their discretion, depositions designated land or other property in his or

210
 her possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon (Rule 27, Sec. 1).
Applicability: Applicable to a pending action and
the documents or things subject of the motion
must be only those within the possession, control,
or custody of a party (Rule 27, Sec. 1).
Notes:
• Production of documents affords more
opportunity for discovery than a subpoena
duces tecum because in the latter, the
documents are brought to the court for the first
time on the date of the scheduled trial wherein
such documents are required to be procured.
• This mode of discovery is not only for the
benefit of a party, but also for the court and for
it to discover all the relevant and material facts
in connection with case before it. (Riano, Civil
Procedure: The Bar Lecture Series, Vol. I, 2022
Edition, p. 528)
• This Rule requires the parties to lay their cards
on the table to facilitate a settlement of the case
before the trial. (Eagleridge Development
Corporation vs. Cameron Granville 3 Asset
Management, Inc., G.R. No. 204700, November
24, 2014).
Covered by the Order of the Court
The provision under Section 1, Rule 27 shows the
production or inspection of documents or things
as a mode of discovery sanctioned by the Rules
of Court may be availed of by any party upon a
showing of good cause therefor before the court
in which an action is pending. The court may
order any party:
(a) to produce and permit the inspection and
copying or photographing of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things,
which are not privileged; which constitute or
contain evidence material to any matter
involved in the action; and which are in his
possession, custody or control; or
(b) to permit entry upon designated land or
other property in his possession or control
for the purpose of inspecting, measuring,
surveying, or photographing the property or
any designated relevant object or operation
thereon. (Air Philippines Corp. v. Pennswell,
Inc., G.R. No. 172835, December 13, 2007)
A motion for production or inspection of
documents or things under Rule 27 is subject to
the requirement that the document or things
should not be privileged. (ibid.)
Documents which are privileged and
cannot be the subject of production and
inspection of documents
Documents, papers, objects, accounts, letters,
photographs, objects and other tangible things
which are privileged in character and cannot be
the subject of Rule 27, as follows to wit:
(a) Privileged communication between husband
and wife (Sec. 24[4], Rule130);
(b) Privileged communication between attorney
and client (Sec. 24/14, Rule 130);
(c) Privileged communication between physician
and patient (Sec. 24[c], Rule 130);
(d) Privileged communication between priest
and penitent (Sec.24[4], Rule130);
(e) Privileged communication of public officers
and public interest (Sec. 24[4], Rule 130);
(f) Editors may not be compelled to disclose
source of published news;
(g) Voters may not be compelled to disclose for
whom they voted
(h) Trade secrets;
(i) Information contained in tax census returns;
and
(j) Bank deposits. (Tan, Civil Procedure: A
Guide for the Bench and the Bar, Book I,
2020, p. 967)
211
It is of possible to treat motion for the issuance liberally construed so as to provide the litigants
of a subpoena duces tecum covering the hospital with information essential to the fair and amicable
records as a motion for production of documents, settlement or expeditious trial of the case. All the
a discovery procedure available to a litigant prior parties are required to lay their cards on the table
to trial. But the said right to compel the so that justice can be rendered on the merits of
production of documents has a limitation: the the case.
documents to be disclosed are "not privileged."
Although the grant of a motion for production of
Josielene of course claims that the hospital document is admittedly discretionary on the part
records subject of this case are not privileged of the trial court judge, nevertheless, it cannot be
since it is the "testimonial" evidence of the arbitrarily or unreasonably denied because to do
physician that may be regarded as privileged. so would bar access to relevant evidence that
Section 24 (c) of Rule 130 states that the may be used by a party-litigant and hence, impair
physician "cannot in a civil case, without the his fundamental right to due process. The test to
consent of the patient, be examined" regarding be applied by the trial judge in determining the
their professional conversation. The privilege, relevancy of documents and the sufficiency of
says Josielene, does not cover the hospital their description is one of reasonableness and
records, but only the examination of the physician practicability (Eagleridge Development Corp. v.
at the trial. Cameron Granville 3 Asset Management, Inc.,
G.R. No. 204700, April 10, 2013)
To allow, however, the disclosure during
discovery procedure of the hospital records — the Production or Inspection of Documents or
results of tests that the physician ordered, the Things vs. Subpoena Duces Tecum
diagnosis of the patient's illness, and the advice
or treatment he gave him — would be to allow Production and Subpoena Duces
access to evidence that is inadmissible without Inspection of Tecum
the patient's consent. Physician memorializes all Documents and (Rule 21)
Things
these information in the patient's records.
(Rule 27)
Disclosing them would be the equivalent of
It is a mode of It is a writ or a
compelling the physician to testify on privileged discovery process of compelling
matters he gained while dealing with the patient, production of
without the latter's prior consent. (Chan v. Chan, evidence
G.R. No. 179786, July 24, 2013) It is directed to a It is directed against
party litigants any person which
Nature of the grant of the remedy includes litigants
It can be availed of by It is by means of a
motion. request which is
The provision on production and inspection of issued ex-parte
documents is one of the modes of discovery (Tan, Civil Procedure: A Guide for the Bench and
sanctioned by the Rules of Court in order to the Bar, Book I, 2020, p. 970)
enable not only the parties, but also the court to
discover all the relevant and material facts in Requisites of Production or Inspection of
connection with the case pending before Documents or Things:
it. Generally, the scope of discovery is to be

212
(1) A Motion must be filed by a party showing
good cause thereof;
(2) Notice of the motion must be given to all
other parties;
(3) The motion must sufficiently Describe the
documents or things sought to be produced
or inspected;
(4) The documents or things sought to be
produced or inspected must constitute or
contain Evidence material to the pending
action;
(5) The document or thing sought to be
produced or inspected must Not be
privileged; and
(6) The document or thing sought to be
produced or inspected must be in the
Possession of the adverse party or, at least,
under his control.
The test to be applied in determining the
relevancy of the documents and sufficiency of
their description is one of reasonableness and
practicality. (Lime Corporation of the Philippines
vs. Moran, GR No. 40759, December 20, 1933).
5. PHYSICAL AND MENTAL
EXAMINATION OF PERSONS
(RULE 28)
When Available
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 mental
examination by a physician (Rule 28, Sec. 1).
Applicability
Examples of this action would be:
(a) An action for annulment of a contract where
the ground relied upon is insanity.
(b) A petition for guardianship of a person
alleged to be insane.
An action to recover damages for personal injury
where the issues is the extent of the injuries of
the plaintiff. (Riano, Civil Procedure: The Bar
Lecture Series), Vol. I, 2022 Edition, p. 530)
Notes:
• This applies only to parties, NOT witnesses.
• Since the results of the examination are
intended to be made public, the same are
not covered by the physician-patient
privilege under Rule 130, Sec. 24[b].
• Under this rule, the examining physician
becomes essentially an officer of the court
ordering the examination.
Order for Examination
The order for examination may be made only:
(a)on Motion;
(b)for Good cause shown; and,
(c)upon Notice to the party to be examined and
to all other parties.
(d) The notice shall Specify the time, place,
manner, conditions and scope of the
examination and the person or persons by
whom it is to be made (Rule 28, Sec. 2).
Obligation of the party causing the
examination
If requested by the party examined, the party
causing the examination to be made shall deliver
to him or her a copy of a detailed written report
ofthe examining physician setting out his or her
findings and conclusions. (Rule 28, Sec. 3)
Duty of party requested to be examined
After such request and delivery, the party causing
the examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or
thereafter made, of the same mental or physical
condition. (Rule 28, Sec. 3)
Effect of refusal to deliver the report
213
If a party refuses to deliver the report upon (2) Contempt; (Rule 29, Sec. 2)
request to the person causing the examination to (3) Payment of reasonable fees (Rule 29, Sec.
be made, the court may require its delivery on 1[4])
(4) The matter regarding which the questions
such terms as are just.
were asked, character or description of land,
et al., be taken to be in accordance with the
If the physician refuses or fails to make a report, claim of the party obtaining the order; (Rule
the court may exclude his testimony. (Rule 28, 29, Sec. 3[a]);
Sec. 3) (5) Prohibition on the refusing party to produce
evidence, support or oppose the designated
Waiver of Privilege claims or defenses (Rule 29, Sec. 3[b]);
(6) Striking out pleadings, order the dismissal of
the action, or stay the action until
Where the party examined requests and obtains compliance, or to render judgment by default
a report on the results of the examination: (Rule 29, Sec. 3[c]); and
(7) Order the arrest of the refusing party except
(a) He is obliged to furnish the other party a in case of physical and mental
copy of the report of any previous or examination.(Rule 29, Sec. 3[d]);
subsequent examination of the same
physical and mental condition; and Availment of Multiple Modes of Discovery
(b) He waives any privilege he may have in that
action or any other involving the same Availment of one mode of discovery will not bar
controversies regarding the testimony of any the party from obtaining another mode of
other person who has so examined him or discovery (Fortune Corp vs. C.A, G.R. No.
may thereafter examine him (Rule 28, Sec. 108119, January 19, 1994).
4).
Note: The only exception where order of default
6. REFUSAL TO COMPLY WITH MODES
OF DISCOVERY (RULE 29) is not preceded by a motion to declare in default
is failure to comply with the modes of discovery.
The application of the rules on modes of
discovery rests upon the sound discretion of the Consequences of Refusal to Comply with
court. In the same vein, the determination of the the Modes of Discovery
sanction to be imposed upon a party who fails to
comply with the modes of discovery rests on the Refusal Effects
same sound judicial discretion. It is the duty of Refusal to (a) The court, upon proper
the courts to examine thoroughly the answer any application, shall order the
question upon deponent or refusing party
circumstances of each case and to determine the
to answer the question or
applicability of the modes of discovery, bearing oral
interrogatory (Rule 29,
always in mind the aim to attain an expeditious examination. Sec. 1).
administration of justice (Lañada v. Court of
Appeals, G.R. Nos. 102390 & 102404, February 1, A refusal to answer after
2002) being directed by the court
may be considered as a
Sanctions: contempt of court (Rule
(1) Those which are sought to be established are 29, Sec. 2)
deemed established (Rule 29, Sec. 3[a]);

214
 If the refusal is unjustified, introducing evidence of
the court may order the physical or mental
deponent, a party, or the condition (Rule 29, Sec.
3[b]).
counsel advising the
refusal, or both of them, to
pay the proponent the
(c) The court may issue an
amount of reasonable order striking out
expenses incurred in pleadings or parts
obtaining the order, thereof, or staying further
including attorney’s fees proceedings until the order
(Rule 29, Sec. 1). is obeyed, or dismissing the
action or proceeding or any
part thereof, or rendering a
(b) If the application for an
judgment by default
order to compel a
against the disobedient
deponent to answer is
party (Rule 29, Sec. 3[c]).
denied because of the
absence of a substantial
justification, the court may
require the proponent or (d) The court may direct
the counsel advising the the arrest of any party or
application, or both of agent of a party for
them, to pay to the disobeying any of the
refusing party or deponent orders of the court, except
the amount of reasonable an order to submit to a
expenses incurred in physical or mental
opposing the application, examination (Rule 29, Sec.
including attorney’s fees 3[d]).
(Rule 29, Sec. 1). Refusal to be A refusal of a party to be
Refusal (a) The court may order sworn sworn after being directed
to answer that the matters regarding by the court may be
designated or which the questions were considered as contempt of
asked shall be taken as court (Rule 29, Sec. 2).
particular
established for purposes of
questions or the action in accordance Refusal to If a party refuses to admit
refusal to with the claim of the party admit the genuineness of any
produce obtaining them (Rule 29, document or the truth of
documents or Sec. 3[a]). any matter of fact and
thing or to serves a sworn denial
submit to (b) The court may issue an thereof and if the other
physical or order refusing to allow the party later on proves the
disobedient party to refuse
mental genuineness of the
or support designated
examination claims or defenses or document or the truth of
prohibiting him from such matter of fact, the
introducing in evidence court upon proper
designated documents or application, may order the
things or items of former to pay the
testimony, or from

215
 reasonable expenses in P. TRIAL (RULE 30)
making such proof,
including attorney ‘s fees Trial is the judicial examination and determination
(Rule 29, Sec. 4). of the issues between the parties to the action.
Failure to The court may: (Black’s Law Dictionary, 5th Edition)
attend (1) strike out all or any
depositions or part of the pleading of A trial is a judicial process of investigating and
to serve that party, or determining the legal controversies, starting with
(2) dismiss the action or the production of evidence by the plaintiff and
answers to
proceeding or any ending with his closing argument. (Acosta v.
interrogatories part thereof; or
People, G.R. No. L-17427 July 31, 1962)
(3) enter a judgment by
default against that
party, and in its Note: A hearing is a broader term. It is not
discretion; confined to the trial and presentation of the
(4) order him to pay evidence because it actually embraces several
reasonable expenses stages in the litigation. It includes the pre-trial
incurred by the other,
and the determination of granting or denying a
including attorney‘s
motion. (Trocio v. Labayo, G.R. No. L-35701,
fees (Rule 29, Sec. 5).
September 19, 1973)
The consequences under
Sec. 5 of Rule 29 will apply Distinguish Trial from Hearing
if a party refuses to answer
the whole set of written Trial Hearing
interrogatories, and not Trial may refer to the Hearing, as known in
reception of evidence law, is not confined to
just a particular question.
and other processes. trial but embraces
Where the party upon It embraces the the several stages
whom the written period for the of litigation
interrogatories is served, introduction of including pre-trial
refuses to answer a evidence by both stage. A hearing
particular question in the parties. does not necessarily
set of written mean presentation of
evidence. It does not
interrogatories and despite
necessarily imply the
an order compelling him to presentation of oral or
answer the particular documentary
question, still refuses to evidence in open
obey the order, Sec. 3© of court but that the
Rule 29 will apply (Zepeda parties are afforded
the opportunity to be
vs. China Banking
heard.
Corporation, G.R. No.
(Republic vs Sandiganbayan, G.R. No. 152154,
172175, October 9, 2006).
July 15, 2003)

216
When trial is not necessary Kinds of trials

Generally: Trial on the Trial of substantive issue in

Trial is necessary when there are issues to be merits a case (Black’s Law
tried as a result of the specific denials of the Dictionary, 5th Edition, p.
material allegations in the complaint.
782)
Inverted Trial Is a kind of trial in which the
accused admitted the crime
Trial is NOT necessary when the alleged legal but interposes an
dispute turns out to be not a genuine issue since exculpatory defense, and
it does not touch any material fact involved in the the burden of jurisdiction is
case. now on him and he will be
the first to present evidence
Ex. When the only controversy is the amount of Trial in Is a kind of trial conducted
absentia after the accused has been
damages and not whether or not the claiming
arraigned and he was duly
party is entitled to damages notified of the trial and his
failure to appear thereat is
Specifically, trial is not necessary in a civil unjustified.
case: New Trial or It is an application for a
1. Where the pleadings of the parties tender no Trial de Novo relief requesting that the
issue at all, a judgement on the pleadings judge set aside the
may be directed by the court (Rule 34, Sec. judgment and order a new
1) trial on the basis that the
2. Where from the pleadings, affidavits, trial was improper or unfair
deposition and other papers, there is actually, due to specified prejudicial
no genuine issue the court may render a errors that occurred.
summary judgement (Rule 35, Secs. 1-2) Public trial A trial held in public, in the
3. Where the parties have entered into a presence of the public, or in
compromise or an amicable settlement either a place accessible and open
during the pre-trial or while the trial is in to the attendance of the
progress (Rule 18; Art. 2028, Civil Code of the public at large, or of a
Philippines) person who may properly
4. Where the complaint has been dismissed with admitted. (Black's Law
prejudice, or when the dismissal has the Dictionary, Fifth edition, p.
effect of an adjudication on the merits (Rule 781)
17, Sec. 5; Rule 7, Sec. 5 (last par.)) Speedy trial a trial conducted according
5. Where the case falls under the operation of to the law of criminal
the Rules on Summary Procedure. procedure and the rules and
6. Where the parties agree, in writing, upon the regulations, free from
facts involved in the litigation, and submit the vexatious, capricious delays.
case for judgement on the facts agreed upon, Joint or When actions involving a
without the introduction of evidence. If, consolidated common question of law or
however, there is no agreement as to all the trial fact are pending before the
facts in the case, trial may be held only as to court, it may order a joint
the disputed facts. (Rule 30, Sec. 6) (Riano, hearing or trial of any or all
Civil Procedure: The Bar Lecture Series), Vol. the matters in issue in the
I, 2022 Edition, pp. 535-537) actions; it may order all the
actions consolidated; and it

217
 may make such orders
concerning proceedings
therein as may tend to avoid
unnecessary costs or delay.
Separate trial The court, in furtherance of
convenience or to avoid
prejudice, may order a
separate trial of any claim,
cross-claim, counterclaim,
or third-party complaint, or
of any separate issue or of
any number of claims, cross-
claims, counterclaims, third-
party complaints or issue.
Trial by By written consent of both
commissioner 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. As
used in these Rules, the
word "commissioner"
includes a referee, an
auditor and an examiner.
Impartial is a trial conducted by an
trial disinterested judge without
favouring any party
Alternate An alternate trial is one
Trial where parties take turns in
presenting their witnesses
respecting the first factual
issue or related issues
stated in the order of trial.
The party who bears the
burden of proving the
affirmative of the issue
under consideration shall be
the first to present a
witness.
Face-face A face-to-face trial is one
Trial wherein witnesses from the
contending sides appear
together before the court,
sit face-t o-face around a
table in a non-adversarial
environment, and answer
questions from the court as
well as the parties’ counsels
respecting the factual issue
under consideration.
(Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book I, 2020, pp. 992-996)
Burden of proof in civil cases
It is a basic rule in civil cases that the party having
the burden of proof must establish his case by a
preponderance of evidence, which simply means
evidence which is of greater weight, or more
convincing than that which is offered in
opposition to it. However, although the evidence
adduced by the plaintiff is stronger than that
presented by the defendant, a judgment cannot
be entered in favor of the former, if his evidence
is not sufficient to sustain his cause of action. The
plaintiff must rely on the strength of his own
evidence and not upon the weakness of the
defendant's. (Heirs of Cruz-Zamora v. Multiwood
International, Inc., G.R. No. 146428, January 19,
2009)
1. SCHEDULE OF TRIAL (SEC. 1)
The parties shall strictly observe the scheduled
hearing as agreed upon and set forth in the pre-
trial order. (Rule 30, Sec. 1)
Continuous trial dates for both plaintiff and
defendant
The schedule of trial dates, for both plaintiff and
defendant, shall be continuous and within the
following period:
Presentation of Evidence
Evidence to When shall Period for
be be set presentation
presented
Initial Not later than Within 3
presentation 30 calendar months (or 90
218
 of plaintiff’s days after the calendar days) Note: Trial dates may be shortened
evidence termination which shall depending on the number of witnesses to be
of the pre- include the presented.
trial data of JDR, if (Sec. 1, Rule 30)
conference necessary
Initial Not later than Within 3 Period for court’s Decision
presentation 30 calendar months (or 90
of days after the calendar days)
defendant’s court’s ruling Period: 90 calendar days
evidence on plaintiff’s
formal offer Reckoning point: From the submission
of evidence of the case for
Presentation Set by the It shall not resolution
of evidence court exceed 90
on the 3rd ( calendar days The court shall decide and serve copies of its
etc.) party decision to the parties within a period not
claim, exceeding ninety (90) calendar days from
counterclaim, the submission of the case for resolution, with or
or cross- without memoranda. (Rule 30, Sec. 1[c])
claim
Presentation Set by the It shall be
of the court completed Note: Postponement of trial is a prohibited
parties’ within a motion: Postponement of presentation of parties’
rebuttal period of witnesses at a scheduled date is prohibited,
evidence thirty (30) except if it is based on acts of God, force
(If deemed calendar days. majeure, or duly substantiated physical inability
necessary) of the witness to appear and testify. (Rule 18,
(Rule 30, Sec. 1[a])
Sec. 7)

Shortened Trial Dates

Calendaring of Cases

The trial dates may be shortened depending on

Clerk of Court shall give preference to habeas
the number of witnesses to be presented.
corpus cases, election cases, special civil actions,
and those required by law to be preferred (Rule
Conditions; Periods for presentation of
20, Sec.1)
evidence

Session hours
General Rule Exception
The presentation of If there are no third
• From 8:30 AM to 2:00 PM from Monday to
evidence of all parties (fourth-etc.)- party
Friday (AM No. 3-99)
shall be terminated claim, counterclaim,
• Hearing on motions shall be held only on
within 10 months or or cross-claim, the
Fridays, pursuant to Sec. 8 of Rule 15 (Rule
300 calendar days. presentation of
evidence shall be
30, Sec. 4)
• Court Calendars: posted outside of their
terminated within 6
months or 180 court rooms at least 1 day before the
scheduled hearing pursuant to OCA Circular
calendar days.
No. 250-2015 (Rule 30, Sec. 4)

219
 is not a matter would be granted. (Ibid;
2. ADJOURNMENT AND POSTPONEMENTS of right Spouses Sibay vs Spouses
Bermudez, G.R. No.
When A court may adjourn a trial from 198196, July 17, 2017)
day to day and to any stated Grant or denial As a rule, the grant or
time of a motion for denial of a motion for
How As expeditious and convenient postponement postponement is
transaction of business may addressed to the sound
require discretion of the court
which should always be
Period; General rule: No power to predicated on the
Limitations adjourn trial for a longer period consideration that more
on the than 1 month for each than the mere convenience
authority adjournment, nor more than 3 of the courts or of the
to adjourn months in all parties, the ends of justice
and fairness should be
Exception: When authorized in served thereby.
writing by the Court
Administrator, Supreme Court. Furthermore, this
Effect Party who caused the discretion must be
postponement Is warned that exercised intelligently.
the presentation of its evidence (Milwaukee Industries vs.
must still be terminated on the Court of Tax Appeals, G.R.
remaining dates previously No. 173815, Novs. 24,
agreed upon. 2010; Go-Bangayan vs.
(Rule 30, Sec. 2) Bangayan, Jr. G.R. No.
201061, July 3, 2013;
Spouses Sibay vs Spouses
Principles on Motion for Postponement: Bermudez, G.R. No.
198196, July 17, 2017)
Motion for A motion for Whoever If a party is given 5 days to
postponement, postponement intended for causes the present his evidence them
prohibited delay is prohibited except if postponement moved for a
it is based on acts of God, must bear the postponement, such party
force majeure, or physical loss in time will lose 1 day and would
inability. (Agravante vs. still need to complete his
Patriarca, G.R. No. L- presentation of evidence
48324, March 14, 1990) on the remaining 4 days.
Should not be A motion for (Riano, Civil Procedure :
filed in the last postponement should not The Bar Lecture Series,
minute be filed in the last hour Vol. I, 2022 Edition, p.
especially when there is no 540)
reason why it could not
have been presented 3. REQUISITES OF MOTION TO POSTPONE
earlier. (Republic vs. TRIAL FOR ILLNESS OF PARTY OR
Sandiganbayan, G.R. No. COUNSEL
123997. January 20, 1999)
A motion for Party asking for The party desiring to postpone hearing or trial
postponement postponement has no right must comply with the following:
to expect that his motion

220
(1) The motion shall be in writing stating the
grounds upon which it is based and, if
necessary, be accompanied by supporting
affidavits or sworn certification;
(2) And if the motion is grounded on illness of a
party or counsel, it must be accompanied by
affidavit or sworn certification that the
presence of such party or counsel at the trial
is indispensable and that the character of
his or her illness is such as to render his or
her non-attendance excusable; (Rule 30,
Sec. 3)
(3) The motion for postponement, whether
written or oral, shall, at all times, be
accompanied by the original official
receipt from the office of the clerk of court
evidencing payment of the postponement
fee under Section 21(b) Rule 141. (Rule 15,
Sec. 12)
NOTE: Absence of evidence can no longer be
used as a basis for postponement of trial
under the new rules.
Order of trial
General Rule: The trial shall be limited to the
issues stated in pre-trial order and shall proceed
as follows:
(1) Party: Plaintiff
Presentation of evidence in chief, in
support of the complaint
(2) Party: Defendant
Presentation of evidence in support of
his or her defense, counterclaim, cross-
claim and third party complaint
(3) Party: third-party defendant, if any
Presentation of evidence in support of
his or her defense, counterclaim, cross-
claim and third party complaint
(4) Party: fourth-party, and so forth, if any
Presentation of evidence of the material
facts pleaded by them
(5) Party: against whom any counterclaim,
or cross-claim has been pleaded
Presentation of evidence in chief, in
support of their defenses, in order to be
prescribed by the court
(6) Rebutting evidence
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;
(7) Submitted for Decision
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.
Exception: Separate trial under Rule 31, Sec. 2,
and unless the court for special reasons otherwise
directs.
Note: The court shall determine the relative
order of presentation of evidence if several
defendants or 3rd party defendants (etc.) have
separate defenses appearing by different
counsel. (Rule 30, Sec. 5)
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)
221
 the trial shall be held as to the disputed facts in
The "offer of evidence" as used in Sec. 35 of the such order as the court shall prescribe. (Rule 30,
Rules of Court must be understood to mean Sec. 7).
presentation or introduction of evidence. Hence,
a document or article is not evidence when it is Agreed Statement of Facts
simply marked for identification, it must be
formally offered as evidence. (People vs. When all facts are When only some
Whipkey, 12590-CR, February 6, 1973) agreed upon facts are agreed
upon
Rule on offer of evidence The parties may agree, If the parties agree
in writing, upon the only on some of the
facts involved in the facts in issue, trial
The rules of procedure and jurisprudence do not litigation, and submit shall be held as to the
sanction the grant of evidentiary value to the case for judgment disputed facts in such
evidence which was not formally on the facts agreed order as the court
offered. (Catacutan v. People, G.R. No. 175991, upon, without the shall prescribe. (Sec.
August 31, 2011) introduction of 7, Rule 30)
evidence.
Note:
General Rule Exception
An agreed statement of facts is conclusive on
The court shall Where the evidence the parties, as well as on the court. Neither of
consider no evidence has been identified by the parties may withdraw from the agreement,
which has not been testimony duly nor may the court ignore the same. (McGuire
formally offered. The recorded and that it v. Manufactures Life, G.R. L-3581, September
purpose for which the has been 21, 1950)
evidence is offered incorporated. (Star
must be specified. Two (SPV-AMC), Inc.
vs Howard Ko, G.R. Suspension of action
No. 1855454, March
23, 2011) The suspension of actions shall be governed by
Note: The mere fact that a particular document is the provisions of the Civil Code and other laws.
identified and marked as an exhibit does not (Rule 30, Sec. 8).
mean that it has already been offered as part of
the evidence of a party, except when it has been
Reception of evidence
identified by testimony duly recorded and must
be incorporated in the record of the case.
(Commissioner Internal Revenue vs. United General Rule Exception
Salvage and Towage [Phils.], Inc., G.R. No. The judge of the court In default or ex parte
197515, July 2, 2014) where the case is hearings, and in any
pending shall case where the
When Introduction of Evidence not personally receive the parties agree in
evidence to be writing, the court may
necessary
adduced by the delegate the
parties reception of evidence
The parties to any action may agree, in writing, to its clerk of court
upon the facts involved in the litigation, and who is a member of
submit the case for judgment on the facts agreed the bar.
upon, without the introduction of evidence. If the
parties agree only on some of the facts in issue,

222
Note: The clerk of court shall have no power to
rule on objections to any question or to the
admission of exhibits, which objections shall be
resolved by the court upon submission of his or
her report and the transcripts within ten (10)
calendar days from termination of the hearing.
(Rule 30, Sec. 9)
Q. CONSOLIDATION OR SEVERANCE
(RULE 31)
Consolidation
Consolidation, in the context of legal proceedings,
is a procedural tool that permits individual cases
that involve common questions of fact or law
to be jointly heard and resolved by a court
or tribunal. (Office of the Ombudsman vs
Chipoco, G.R. No. 231345, Aug. 19, 2019)
It is a procedural device, granted to the court as
an aid in deciding how cases in its docket are to
be tried, so that the business of the court may be
dispatched expeditiously while providing justice
to the parties. (Republic v. Heirs of Oribello, G.R.
No. 199501, March 06, 2013)
Rationale
To have all cases, which are intimately related
acted upon by one branch of the court to avoid
the possibility of conflicting decisions being
rendered and, in effect, prevent confusion,
unnecessary costs and delay.
It is an action sought to avoid multiplicity of suits;
guard against oppression and abuse; clear and
congested dockets, and to simplify the work of
the trial court in order to attain justice with the
least expense and vexation to the parties’
litigants. (Puncia vs. Toyota Shaw/Pasig, Inc.,
G.R. No. 24399, June 28, 2016)
Kinds of Consolidation
(1) Quasi-consolidation: 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
(2) Actual 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.
(3) Consolidation for trial: where several
actions are ordered to be tried together, but
each retains its separate character,
and requires the entry of a separate
judgement.
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.
(Republic vs. Heirs of Oribello, G.R. No.
199501, March 6, 2013; Neri vs.
Sandiganbayan, G.R. No. 202243, August 7,
2013)
When Consolidation is Proper
When actions involving common question of
law or fact are pending before the court. (Rule
31, Sec. 1)
Generally, consolidation applies only to cases
pending before the same judge and not to cases
pending in different branches of the same court
or in different courts. Yet in appropriate instances
and in the interest of justice, cases pending in
different branches of the court or in different
courts may be consolidated, consistent with the
223
rule in our jurisdiction that leans toward
permitting consolidation of cases whenever
possible and irrespective of the diversity of the
issues for resolution. (Bank of Commerce vs. Hon.
Estela Perlas-Bernabe, etc., et al., G.R. No.
172393, October 20, 2010)
The Rules do not distinguish between cases filed
before the same branch or judge and those that
are pending in different branches or before
different judges of the same court, in order that
consolidation may be proper, as long as the cases
involve the resolution of questions of law or facts
in common with each other. (Active Woods
Products Co. Inc. vs. CA, G.R. No. 86602, Feb. 5,
1990)
Requisites for Consolidation
(1) There must be 2 or more actions pending
before a court;
(2) The action must involve common
questions of fact or law;
(3) The actions must involve the same parties
and subject matter (Rule 31, Sec. 1)
Court’s action
The court may:
(a) Order a joint hearing or trial of any or all
matters in issue in the actions;
(b) Order all the action consolidated; and
(c) Make such orders concerning proceedings
therein as may tend to avoid unnecessary
cost or delay. (Rule 31, Sec. 1)
When Consolidation is NOT Proper
When consolidation is not mandatory
Where a case has been partially tried before
one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. (PCGG vs.
Sandiganbayan, G.R. No. 102370-71, June 15,
1992)
Appeal from consolidated cases
Since each action does not lose its distinct
character by reason of the consolidation,
severance of one action from the other is
not necessary to appeal the judgment
already rendered in one action. There is no
rule or law prohibiting appeal of a judgement or
part of a judgment in once case which is
consolidated with other cases. Further, severance
is within the sound discretion of the court for
convenience of to avoid prejudice. It is not
mandatory under the Rules of Court that the
court sever one case from the other cases
before a party can appeal an adverse ruling
on such case. (Republic vs. Heirs of Oribello,
G.R. No. 199501, March 6, 2013)
Consolidation for appeal
There is no fixed deadline beyond which
consolidation may not be affected. Where cases
are considered consolidated from the time they
are tried and decided jointly, there is no
necessity for either party to ask for a formal
consolidation of said cases for purposes of
appeal. (Sideco vs. Paredes, G.R. No. 48569,
Oct. 23, 1942)
Severance
The court may order a separate trial of any
claim, cross-claim, counterclaim, or 3rd party
complaint, or of any separate issue. (Rule 31,
Sec. 2)
When severance is proper
224
In furtherance of convenience, or to avoid
prejudice. (Rule 31, Sec. 2)
When a separate trial of claims is conducted
by the court under this section, it may render
separate judgments on each claim. (Rule 36,
Sec. 5)
In an expropriation proceedings against
owners of 11 adjacent lots, it is not improper
to conduct separate trial as against one of the
owners if his defense is personal and peculiar to
him. (Mun. of Binan vs. Garcia, G.R. No. 69260,
Dec. 22, 1989)
Separate Trial, Discretionary
The text of the rule grants to the trial court the
discretion to determine if a separate trial of any
claim, cross-claim, counter-claim, or 3rd party
complaint, or of any separate issue or of any
number of claims, cross-claims, counterclaims, 3rd
party complaints or issues should be held,
provided that the exercise of such discretion is in
furtherance of convenience or to avoid prejudice
to any party. (MBTC vs. Sandoval, G.R. No.
169677, Feb. 18, 2013)
R. DEMURRER TO EVIDENCE (RULE 33)
A demurrer to evidence is a motion to dismiss on
the ground of insufficiency of evidence. It is a
remedy available to the defendant, to the effect
that the evidence produced by the plaintiff is
insufficient in point of law, whether true or not,
to make out a case or sustain an issue. The
question in a demurrer to evidence is whether the
plaintiff, by his evidence in chief, had been able
to establish a prima facie case. (Republic vs. De
Borja, G.R. No. 187448, January 9, 2017)
Nature of Demurrer to Evidence
Demurrer to evidence authorizes a judgment on
the merits of the case without the defendant
having to submit evidence on his part, as he
would ordinarily have to do, if plaintiff's evidence
shows that he is not entitled to the relief sought.
Demurrer, therefore, is an aid or instrument for
the expeditious termination of an action, similar
to a motion to dismiss, which the court or tribunal
may either grant or deny. (Uy v. Chua, G.R. No.
183965, September 18, 2009)
Issue
Whether the plaintiff, by his evidence in chief, had
been able to establish a prima facie case.
(Republic vs. De Borja, G.R. No. 187448, January
9, 2017)
Ground for Demurrer to Evidence
After the plaintiff has completed the presentation
of his or her evidence, the defendant may move
for dismissal on the ground:
Insufficiency of evidence, dismissal on the
ground that upon the facts and the law, the
plaintiff has shown no right to relief. (Rule 33,
Sec. 1)
Note: Res judicata is an inappropriate ground for
sustaining a demurrer to evidence, even as it
stands as a proper ground for a motion to
dismiss.
A demurer may be granted if, after the
presentation of plaintiff’s evidence, it appears
upon the facts and the law that the plaintiff has
shown no right to relief. In contrast, the grounds
for res judicata present themselves even before
the presentation of evidence, and it should be at
that stage that the defense of res judicata should
be invoked as a ground for dismissal. (Republic
vs. Tuvera, G.R. No. 148246, Feb. 16, 2007)
225
Effect Of Denial
The defendant shall have the right to present
his or her evidence. (Rule 33, Sec. 1)
The order denying the demurrer to evidence
shall not be the subject of an appeal or petition
for certiorari, prohibition, or mandamus before
judgment. (Rule 33, Sec. 2)
It is interlocutory and unappealable. (Gubat,
Rules of Civil Procedure Annotated, 2021 Edition,
pp. 455)
Notes: The party who files a demurrer to
evidence that is subsequently denied, in an
election case, cannot insist on the right to present
evidence. The provisions of the Rules of Court
governing demurrer to evidence does not apply
to an election case. (Gementiza vs. COMELEC,
G.R. No. 140884, March 6, 2001)
Remedy Against The Denial
Remedy of the defendant is to proceed to trial,
and thereafter, appeal from the decision on
the merits. (Gubat, Rules of Civil Procedure
Annotated, pp. 455, 2021)
Effect Of Grant
The court shall dismiss the complaint for
insufficiency of evidence.
A dismissal on the basis of a demurrer to evidence
is similar to a judgment; it is a final order ruling
on the merits of a case. (Republic vs. De Borja,
G.R. No. 187448, January 9, 2017)
Effect of Reversal of Grant of Demurrer on
Appeal
If the defendant’s demurrer is granted by the
trial court by dismissing the complaint, and the
order of dismissal is reversed on appeal, the
movant loses his right to present evidence
in his behalf and he shall have been deemed
to have elected to stand on the
insufficiency of plaintiff’s case and
evidence. In such event, the appellate court
which reversed the order of dismissal will proceed
to render judgment on the merits on the basis of
plaintiff’s evidence. Thus, a remand of the case is
not only frowned upon but is also logically
unnecessary. (Rule 33, Sec. 1; Radiowealth
Finance Co. vs. Del Rosario, G.R. No. 138739,
July 6, 2000)
Action On Demurrer To Evidence
A demurrer to evidence shall be subject to the
provisions of Rule 15. (Rule 33, Sec. 2)
Being subject to the provisions of Rule 15, it
follows that a demurrer to evidence is considered
an allowable litigious motion. Rule 15
requires that there must be proof of service to
the other party who shall have 5 calendar days
to file an opposition. The court shall then
resolve the motion within 15 calendar days
from the receipt of such opposition, or upon
expiration of the period to file opposition. (Rule
15, Sec. 5)
Demurrer to Evidence vs. Motion to Dismiss
Demurrer to
Motion to Dismiss
Evidence
When Filed
Generally, before the
After the plaintiff has
filing of an answer or
completed the
responsive pleading
presentation of his or
her evidence during
But the Rules do not
trial (Rule 33, Sec. 1)
provide for a specific
period (see Rule 9,
Sec. 1)
226
 Ground to show that he is insufficiency of
Grounded on Grounds independent entitled to relief, evidence. (Rule 119,
insufficiency of of evidence upon the facts and Sec. 23)
evidence, or on the the law. (Rule 33,
ground that upon the Sec. 1)
facts and the law the Leave of court requirement
plaintiff has shown no Not required May be filed with or
right to relief. (Rule without leave of court
33, Sec. 1) (Rule 119, Sec. 23)
If denied If granted
Defendant should Defendant should file Order of dismissal is Oder of dismissal is
present his or her his or her answer, appealable (Rule 33, not appealable
evidence. proceed with to trial Sec. 1) because of the
and, in the event of an constitutional policy
The order denying the adverse judgment, against double
demurrer to evidence interpose an appeal, jeopardy (dismissal =
shall not be subject of assigning as errors the acquittal of the
an appeal or petition grounds stated in the accused)
for certiorari, motion to dismiss. If denied
prohibition or Defendant may Accused may adduce
mandamus before If there is grave abuse proceed to present his evidence only if the
judgment (Rule 33, of discretion, Petition his evidence (Rule demurrer is filed with
Sec. 2) for Certiorari. 33, Sec. 1) leave court. He cannot
(Carniyan vs. Home present his evidence if
Guaranty Corporation, he filed the demurer
G.R. No. 228516, without leave of court.
August 14, 2019) (Rule 119, Sec. 23)
If granted Court’s initiative
Remedy of the Remedy of the The court cannot, The court can, on its
aggrieved party is aggrieved party is on its own initiative, own, make a
appeal appeal since the order make a demurrer. demurrer. (Rule 119,
of dismissal is a final (Rule 33, Sec. 1) Sec. 23)
If on appeal the order order (Medina vs.
granting the demurrer Spouses Lozada, G.R. S. JUDGEMENTS AND FINAL ORDERS
was reversed, the No. 185303. August
defendant shall be 01, 2018)
Meaning of Judgment
deemed to have
waived the right to
present evidence A judgment is a final ruling by a court of
(Rule 33, Sec. 1) competent jurisdiction regarding the rights of the
parties or other matters submitted to it in an
Demurrer to Evidence in Civil Cases vs. in action or a proceeding. (Macahilig vs. Heirs of
Criminal Case Garcia, G.R. No. 141423, November 15, 2000)

Civil case Criminal case Judgment on the Merits

(Rule 33) (Sec. 23, Rule 119)
Basis A judgment is "on the merits" when it amounts to
Anchored upon the Predicated upon a legal declaration of the respective rights and
failure of the plaintiff prosecution’s

227
duties of the parties, based upon the disclosed
facts. (Luzon Development Bank vs. Conquilla,
G.R. No. 163338. September 21, 2005)
Requisites for a Valid Judgment
(a) Court or tribunal must be clothed with
authority (Acosta vs. COMELEC, G.R. No.
131488, Aug. 3, 1998)
(b) Court must have jurisdiction over the
parties and the subject matter (Acosta vs.
COMELEC, G.R. No. 131488, Aug. 3, 1998)
(c) Parties must have been given an
opportunity to adduce evidence on their
behalf (Acosta vs. COMELEC, G.R. No.
131488, Aug. 3, 1998)
(d) Evidence must have been considered by
the tribunal in deciding the case. (Acosta vs.
COMELEC, G.R. No. 131488, Aug. 3, 1998)
(e) Judgment must be in writing, personally
and directly prepared by the judge
(Corpus vs. Sandiganbayan, G.R. No.
162214, November 11, 2004)
(f) Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court (Rule 36. Sec.1; Sec. 14, Art.
VIII, 1987 Constitution); (Riano, Civil
Procedure: The Bar Lecture Series, Vol. I,
2022 Edition, pp. 552-553)
Judgment distinguished from Resolution
Resolutions of the Supreme Court, denying
petitions to review decisions of the Court of
Appeals, are not "decisions" within the purview of
the Constitution. Accordingly, a petition to review
the decision of the Court of Appeals is not a
matter of right, but of sound judicial discretion;
and so, there is no need to fully explain the
Court's denial. (Novina vs. Court of Appeals, G.R.
No. L-21098, May 31, 1963)
Judgment distinguished from Interlocutory
Orders
An interlocutory order is one which does not
finally dispose of the case, and does not end
the court's task of adjudicating the parties'
contentions and determining their rights and
liabilities as regards each other, but obviously
indicates that other things remain to be done by
the court (Heirs of Josefina Gabriel v. Cebrero,
G.R. No. 222737, November 12, 2018)
Interlocutory orders are not decisions or
judgments within the constitutional definition. It
was, thus, held that judgments, as referred to in
Sec. 1 of Rule 36, do not include resolutions
which are interlocutory orders (Amargo v. Court
of Appeals, G.R. No. L-31762, September 19,
1973)
Interlocutory orders are those that determine
incidental matters that do not touch on the merits
of the case or put an end to the proceedings.
The proper remedy toquestion an improvident
interlocutory order is a petition for certiorari
under Rule 65, not Rule 45. A petition for review
under Rule 45 is the proper mode of redress to
question final judgment. An order staying the
execution of the writ of possession is
an interlocutory order. Clearly, this order cannot
be appealed. A petition forcertiorari was
therefore the correct remedy. (Silverio Jr. v.
Filipino Business Consultants Inc., G.R. No.
143312, August 12, 2005)
Memorandum decisions
The law does not degine the memorandum
decision and simply suggests that the court may
adopt by reference the findings of fact and the
conclusions of law stated inthe decision, order
or resolution on appeal before it. The decision
of the appellate court actually reproduces the
findings of fact or the conclusions of law of the c
ourt below, it is not a memorandum decision as
envisioned in the above provision. The distinctive
features of the memorandum decision are, first,
it is rendered by an appellate court, and second,
228
it incorporates by referencethe findings of fact or An extension of the period to render a decision
the conclusions of law contained in the decision, may be set by the Supreme Court upon request
order or ruling under review. (Francisco v. by the judge concerned on account of heavy
Permskul, G.R. No. 81006, May 12, 1989) caseload or by other reasonable excuse.
Without an extension granted by the court, a
delay in the disposition of cases is tantamount
Rendition of Judgment to gross inefficiency on the part of the judge.
(Arap vs. Mustafa, A.M. No. SCC-01-7, March
The mere pronouncement of the judgment in 12, 2002)
open court with the stenographer taking note
thereof does not, therefore, constitute a rendition Parts
of the judgment. It is the filing of the signed Judgment Decision
decision with the clerk of court that constitutes (a) Opinion of (a) Statement of the case
rendition. While it is to be presumed that the the court – (b) Statement of facts
contains the (c) Issues or assignment
judgment that was dictated in open court will be
findings of of errors
the judgment of the court, the court may still fact and (d) Court ruling, in which
modify said order as the same is being put into conclusions each issue is, as a rule,
writing. And even if the order or judgment has of law separately considered
already been put into writing and signed, while it (b) Disposition and resolved, and
has not yet been delivered to the clerk for filing, of the case – (e) Dispositive portion
it is still subject to amendment or change by the final and
actual The ponente may also opt
judge. It is only when the judgment signed by the
disposition of to include an introduction
judge is actually filed with the clerk of court that the rights or a prologue as well as an
it becomes a valid and binding judgment. Prior litigated epilogue, especially in
thereto, it could still be subject to amendment (dispositive cases in which
and change and may not, therefore, constitute part) controversial or novel
the real judgment of the court. (Ago v. Court of (c) Signature of issues are involved.
the judge (Velarde vs. Social Justice
Appeals, G.R. No. L-17898, October 31, 1962)
Society, G.R. No. 159357,
April 28, 2004)
Period within which to render a Decision
Rules as regards to Judgment penned by a
Supreme Court Within 24 months from judge
the date of their
submission for decision
Judgment It is not necessary for the
Court of Appeals Within 12 months from
penned by validity of
and all lower the date of their
a judge the judgment that it be
collegiate courts submission for decision
who did rendered by
All other lower Within 3 months from
not hear the judge who heard the case.
courts the date of their
the The rule is settled that the
submission for decision
evidence validity of a judgment is not
Note: A case is deemed submitted for
rendered erroneous solely
resolution upon the filing of the last pleading,
because the judge who heard
brief or memorandum required by the Rules of
the case was not the same
Court or by the court. (Art. VIII, Sec. 15,
judge who rendered the
Philippine Constitution)
decision. In fact, it is not
necessary for the validity of a

229
 judgment that the judge who
penned the decision should
actually hear the case in its
entirety, for he can merely rely
on the transcribed
stenographic notes taken
during the trial as the basis for
his decision. (Kummer v.
People, G.R. No. 174461,
September 11, 2013)
Judgment A judgment promulgated after
penned by the judge who signed the
a judge decision has ceased to hold
who had office is not valid and binding.
ceased to This is so because "when a
be a judge judge, retired all his authority
to decide any case, i.e., to
write, sign and promulgate the
decision thereon also 'retired'
with him. In other words, he
had lost entirely his power and
authority to act on all cases
assigned to him prior to his
retirement." (City of Taguig v.
City of Makati, G.R. No.
208393, June 15, 2016)
Judgment The Judge who pens the
penned by decision of a case heard by him
a judge before he was assigned or
who was transferred to another district
transferred or branch of the court of equal
jurisdiction is an incumbent
Judge, albeit assigned to a
different branch at the time the
decision was promulgated.
Under the Court’s Resolution of
10 February 1983, Rule 135 of
the Rules of Court and Section
9 thereof, what is essential is
that the Judge who pens the
decision of a case heard by him
before he was assigned or
transferred to another district
or branch of the court of equal
jurisdiction is an incumbent
Judge, i.e., in this case, a
Judge of the same court
(Regional Trial Court), albeit
assigned to a different branch
at the time the decision was
promulgated. There is no
reason why the rule and
Resolution of the Court should
not apply to a case where a
Presiding Judge who resigned
after a case tried by him had
already been submitted for
decision, and was, thereafter,
re-appointed as Presiding
Judge of another regional
district and branch of the RTC.
(Spouses Marchadesch v. Vda.
De Yepes, G.R. No. 151160,
November 11, 2004)
Special Forms of Judgment
Rendered against the defendant
for his failure to answer to the
Judgment complaint within the time fixed
By Default by the rules (Veluz vs. Justice of
Peace, G.R. No. 16253, Dec. 10,
1921)
Judgment rendered in favor of a
party to an action, on motion
therefor, where an answer fails
Judgment
to tender and issue, or
on the
otherwise admits the material
Pleading
allegations of the adverse
party’s pleadings (Rule 34, Sec.
1)
Is one granted upon motion of a
party for an expeditious
settlement of the case, it
appearing from the pleadings,
depositions, admissions and
affidavits that there are no
Summary
important questions or
Judgment
issues of fact posed and,
therefore, the movant is
entitled to a judgment as a
matter of law. (Republic vs.
Sandiganbayan, G.R. No.
152154, July 15, 2003)
A judgment which a court may
Several
render, in an action against
Judgment
several defendants, against one
s
or more of them leaving the
230
 action to proceed against the
others. (Rule 36, Sec. 4)
A judgment where a court may
render, in an action where more
than one claim for relief is
presented, disposing of a
particular claim upon a Upon
Separate
determination of the issues
Judgment
material to such claim and all
counterclaims arising out of the
transaction or occurrence which
is the subject matter of the
claim. (Rule 36, Sec. 5)
Requires the performance of
any other act than the payment
Special
of money, or the sale or delivery
Judgment
of real or personal property
(Rule 39, Sec. 9)
Directs a part to execute a
Judgment
conveyance of land, or to deliver
For
deeds or other documents, or to
Specific
perform any other specific act
Facts
(Rule 39, Sec. 10)
Judgment or final resolution of a
court in an appealed case
adopting by reference the
Memoran
findings of fact and conclusion
dum
of law contained in the decision
Judgment
or final order to appeal from
(Sec. 24 Interim Rules and
Guidelines, Jan. 11, 1983)
Where the provision and terms
of which are settled an agreed
upon by the parties to take
Judgment
action, and which is entered in
On
the record by the consent and
Consent
sanction of the court (Republic
vs. Bisaya Land Trans. Co., G.R.
No. L-31490, Jan. 6, 1978)
Rendered to enter or record
such judgment as had been
formerly rendered but has not
been entered as thus rendered
Judgment
(Cardoza vs. Singson, G.R. No.
Nunc Pro
59284, Jan. 12, 1990)
Tunc
Powe of a court to make such
entries is restricted to placing
upon the record evidence of
judicial action which has been
actually taken (Briones-Vasquez
vs. CA, G.R. No. 144882, Feb. 4,
2005)
Rendered by a court against a
Judgment party upon his petition or
consent (Manufacturer’s Bank &
Confessio Trust Co. vs. Woodworks, Inc.,
n G.R. No. L-29453, Dec. 23,
1970)
Rendered by a court based on
the agreement of the parties, by
Judgment making reciprocal concessions,
Upon to avoid a litigation or put an
Compromi end to one already commenced
se (United Housing Corp. vs.
Dayrit, G.R. No. 76422, Jan. 22,
1990)
Clarificato Clarifies a vague or ambiguous
ry judgment
Judgment
Doctrines related to Judgment
Res Judicata The principle states that an
existing final judgment or
decree rendered on the
merits, without fraud or
collusion, by a court of
competent jurisdiction,
upon any matter within its
jurisdiction, is conclusive
of the rights of the parties
or their privies, in all other
actions or suits in the same
or any other judicial
tribunal of concurrent
jurisdiction on the points
and matters in issue in the
first suit. (Monterona vs.
Coca-cola Bottlers, G.R.
No.209116, January 14,
2019)
Judicial The decisions of the
Precedence Supreme Court form par
the legal system. Hence,
every court must take
cognizance of the
decisions of the Supreme
231
 Court. Said decisions are
proper subjects of
mandatory judicial notice.
(Heirs of Canque vs. Court
of Appeals, G.R. No.
119184. July 21, 1997)
Stare Decisis it holds that a point of law,
once established by the
Court, will generally be
followed by the same court
and by all courts of lower
rank in subsequent cases
involving a similar legal
issue. (De la Cruz v.
Ochoa, Jr., G.R. No.
219683, January 23, 2018)
Immutability Immutability of judgments
of Judgments is the fundamental
principle that a judgment
that has become final and
executory is unalterable.
The judgment may no
longer be modified in any
respect, even if the
modification is meant to
correct what is perceived
to be an erroneous
conclusion of fact or law,
regardless of whether the
modification is attempted
to be made by the court
rendering it or by the
highest court of the land
(Multinational Village
Homeowners' Association
v. Gacutan, G.R. No.
188307, August 2, 2017)
Doctrine of the Whatever is once
law of the case irrevocably established as
the controlling legal rule or
decision between the same
parties in the case
continues to be the law of
the case, whether correct
on general principles or
not, so long as the facts on
which such decision was
predicated continue to be
the facts of the case before
the court (Riano, Civil
Procedure: The Bar
Lecture Series, Vol. I, 2022
Edition, p. 576)
Conclusiveness Any right or fact or matter
of Judgment in issue directly
adjudicated or necessarily
involved in the
determination of an action
before a competent court
in which judgment is
rendered on the merits is
conclusively settled by the
judgment therein and
cannot be litigated again
between the parties, and
their privies, whether or
not the claim, demand,
purpose or subject matter
of the two causes of
actions is the same. (Sps.
Ocampo vs. Heirs of
Dionisio, G.R. No.
191101, October 1, 2014)
1. JUDGMENT ON THE PLEADINGS
(RULE 34)
a) GROUNDS
Where an answer:
(a) fails to render an issue, or otherwise
(b) admits the material allegations of the
adverse party’s pleading
the court may, on motion of that party, direct
judgement on such pleading. (Rule 34, Sec. 1)
Note: The court may, motu proprio, include in the
pre-trial order that the case be submitted for
judgment on the pleadings should there be a valid
ground (Rule 18, Sec. 10)
The rendition of a judgment on the pleadings is
proper when an answer fails to tender an issue,
or otherwise admits the material allegations
of the adverse party's pleading. It is a form
of judgment that is exclusively based on the
232
submitted pleadings without the introduction of Any action of the court on a motion for judgment
evidence since the factual issues are on the pleadings shall not be subject of an appeal
uncontroverted. or petition for certiorari, prohibition or
mandamus. (Rule 34, Sec. 2)
An answer would fail to tender an issue if it does
not deny the material allegations in the complaint Litigious nature
in the complaint or admits said material
allegations of the adverse party's pleadings by A motion for a judgment on the pleadings is
confessing the truthfulness thereof and/or considered as a litigious motion, as such, there
omitting to deal with them at all. If an answer must be:
specifically denies the material averments (1) Proof of service to the other party
of the complaint and/or asserts affirmative (2) 5 calendar days to file an opposition
defenses, i.e., allegations of new matters which,
while admitting the material allegations of the The motion shall be resolved by the court within
complaint expressly or impliedly, would fifteen (15) calendar days from its receipt of the
nevertheless prevent or bar recovery opposition thereto, or upon expiration of the
by the plaintiff, a judgment on the pleadings period to file such opposition. (Rule 15, Sec. 5)
would be improper. (Boongaling v. Banco San
Juan, G.R. No. 214259, November 29, 2022, J. Resolving the motion
Hernando)
General Rule Exception
The concept of a judgment on the pleadings will A judgment on the The court may motu
pleadings cannot be proprio or on motion
not apply when no answer is filed. It will come
rendered by the court render judgment on
into operation when an answer is served and filed motu proprio. It can the pleadings if it is
but the same fails to tender an issue or admits be done where there apparent that the
the material allegations of the adverse party's is a prior motion to answer fails to tender
pleading (Sec. 1, Rule 34, Rules of Court, as the effect filed by the an issue, or otherwise
amended by AM. No. 19-10-20-SC). claiming party (Sec. 1, admits the material
Rule 34, Rules of allegations of the
Court, as amended by adverse party's
b) ACTION ON MOTION FOR JUDGMENT
AM. No. 19-10-20- pleadings. Otherwise,
ON THE PLEADINGS
SC). the motion shall be
subject to the
If it is apparent Judgment on the pleading provisions of Rule 15
in the answer may be rendered by the of these Rules.
that there court, motu propio, or on
exists a ground motion (Rule 34, Sec. 2) Court’s action
for Judgment cannot be subject
on the pleading of an appeal or
Judgment on the pleading petition for
If grounds not may be rendered only by certiorari,
apparent in the motion of the party, prohibition or
answer subject to the provisions mandamus
of Rule 15 (Rule 34, Sec.
2) Any action of the
court on a motion for

233
 judgment on the
pleadings shall not be
subject of an appeal
or petition for
certiorari, prohibition
or mandamus." (Sec.
2, Rule 34, Rules of
Court, as amended by
A.M. No. 19-10-20-
SC)
Necessity of motion
The court cannot motu proprio render such
judgment in the absence of a motion for
judgment on the pleadings. (De Luna vs. Abrigo,
G.R. No. L-60783, Jan. 18, 1990)
Motion can be made orally. The rule does not
require that the motion for judgment on the
pleadings must be in writing. (Bringas vs.
Hernando, G.R. No. L-55397, Feb. 29, 1988)
Note: The court may, motu proprio, include in the
pre-trial order that the case be submitted for
judgment on the pleadings should there be a valid
ground (Rule 18, Sec. 10)
Action on motion for judgment
The court may motu proprio or on motion render
judgment on the pleadings if its apparent that the
answer fails to render an issue, or otherwise
admits of the material allegations of the adverse
party’s pleadings. (Rule 34, Sec. 2)
Ex-parte judgment
Where the answer admits all the material
averments of the complaint, is one that may be
considered ex parte when, upon the particular
facts presented and laid before the court, the
plaintiff is entitled to the judgment. (Dino vs.
Valencia, G.R. No. L-43886, July 19, 1989)
Effect of denial of motion
The trial court shall proceed with the action.
Being interlocutory, the denial is not subject to
appeal. (Gubat, Rules of Civil Procedure
Annotated, p. 458, 2021)
Partial judgment on the pleadings
The court may render judgment on the pleadings
or a summary judgment as justice may require if
at the pre-trial it finds that facts exist upon which
a judgment on the pleading or a summary
judgment is made.
Thus, it may render a partial judgment on the
basis of the “stipulation of facts” entered into by
the parties during the pre-trial if facts found upon
which judgment on the pleadings or summary
judgment may be made. (Phil Virgina Tobacco
Adm. vs. De los Angeles, G.R. Nos. L-30085-87.
December 26, 1974)
When judgment on the pleadings is not
proper:
(1) Actions for declaration of nullity
(2) Annulment of marriage or
(3) Legal separation
In the above actions, the material facts
alleged in the complaint shall always be proved.
(Rule 34, Sec. 1)
Remedy against the judgment itself
The remedy is ordinary appeal. But when the trial
court gravely abused its discretion in rendering a
decision without conducting a hearing to allow
the parties to present their evidence, the
aggrieved party may avail of the special civil
action for certiorari despite the availability of the
remedy of appeal. (Gaw vs. CA, G.R. No. L-60783,
October 31, 1990)
234
Judgment on pleadings vs. Judgment by important questions or issues of fact posed
Default and, therefore, the movant is entitled to a
judgment as a matter of law. (Republic vs.
Judgment on Judgment by Sandiganbayan, G.R. No. 152154, July 15, 2003)
pleadings default
When proper Summary Summary Judgment
It appears from the When the defendant Judgment for for Defending party
pleadings (incl. those fails to answer within Claimant (Sec. 1) (Sec. 2)
of defendant) that the reglementary As to subject of action
there is no period A party seeking to A party against whom
genuine issue recover upon a a claim, counterclaim,
between parties claim, counterclaim, or cross-claim is
(Rule 34, Sec. 1) or crossclaim or to asserted or a
Required to introduce new evidence obtain a declaratory declaratory relief is
Yes – may require the relief sought
claimant in the When to file
No
discretion of the court After the pleading in At any time
to submit evidence answer thereto has
Ex parte motion for judgment been served
May be ex parte Must be with notice to How to file
when all the material the defending party By motion with supporting affidavits,
averments of the depositions, or admissions for a summary
complaint are judgment in his/her favor or any part thereof.
admitted
(Gubat, Rules of Civil Procedure Annotated, pp. Note: Rule 15 applies since motion for
457-458, 2021) Summary Judgment is a litigious motion.

2. SUMMARY JUDGMENTS (RULE 35) Grounds

Summary judgment, also called accelerated (1) There exists no genuine issue as to any
judgment, is a procedural device that allows material fact, except as to the amount of
parties to avoid long litigation and delays, where damages, AND
the pleadings show that there are no genuine (2) The moving party is entitled to judgment as
a matter of law.
issues of fact to be tried. A genuine issue of fact
is "such issue of fact which requires the
Genuine Issue meaning
presentation of evidence as distinguished from a
sham, fictitious, contrived, or false claim." As
A ‘genuine issue’ is an issue of fact which requires
such, an issue of fact is genuine if it requires
the presentation of evidence as distinguished
presentation of evidence to be resolved. (Aljem's
from a sham, fictitious, contrived or false claim.
Credit Investors Corp. v. Spouses Bautista, G.R.
When the facts as pleaded appear uncontested or
No. 215175, April 25, 2022, J. Hernando)
undisputed, then there is no real or genuine issue
or question as to the facts, and summary
One granted upon motion of a party for an
judgment is called for. (Adolfo vs. Adolfo, G.R.
expeditious settlement of the case, it
No. 201427, March 18, 2015)
appearing from the pleadings, depositions,
admissions and affidavits that there are no

235
When a party moves for a summary judgment,
the trial court is duty-bound to examine the
motion and the supporting documents, as well as
the corresponding opposition thereto, to
determine if there are genuine issues of fact that
should be resolved by the trial court. (Aljem's
Credit Investors Corp. v. Spouses Bautista, G.R.
No. 215175, April 25, 2022, J. Hernando)
When to render: judgment sought shall be
rendered forthwith if the pleadings, supporting
affidavits, depositions and admissions on file,
show that, except as to the amount of damages,
there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law (Rule 35, Sec. 2)

Procedure When Summary Judgment is improper

(1) To initiate: Motion for Summary
judgment
When to The claiming party shall file a
file motion for summary judgment
after the pleading in answer to
his/her claim has been served.
The defending party may file a
motion for summary judgment at
any time.
Contents • Supporting affidavits
of the • Depositions
motion • Admissions
• Specific law relied upon
Note: The court may, motu proprio, include in the
pre-trial order that the case be submitted for
summary judgment should there be a valid
ground (Rule 18, Sec. 10)
Where the pleadings tender vital issues the
resolution of which calls for the
presentation of evidence. (Guevarra vs CA,
G.R. No. L-49017 and L-4902, Aug. 30, 1983)
Test to determine if Summary Judgment is
proper
Whether or not the pleadings, affidavits and
exhibits in support of the motion are sufficient
to overcome the opposing papers and to
justify a finding as a matter of law that there
is no defense to the action or the claim is
clearly meritorious. (Estrada vs. Consolacion,
G.R. No. L-40948, June 29, 1976)
Burden of Proof

(2) Comment by the adverse party A party who moves for summary judgment has
the burden of demonstrating clearly the absence
When to Adverse party may file a comment of any genuine issue of fact, or that the issue
file within a non-extendible period of posed in the complaint is so patently
five (5) calendar days from unsubstantial as not to constitute a genuine issue
receipt of the motion. for trial, and any doubt as to the existence of such
Contents • Opposing affidavits an issue is resolved against the movant. (Go vs.
of the • Depositions
CA, G.R. No. 120040, Jan. 29, 1996)
motion • Admission

Defendant must show that he has plausible

(3) Hearing
ground of defense, something fairly arguable and
Discretionary upon the court. of a substantial character (Alcantara vs. Boneo,
G.R. No. 39828, Oct. 5, 1990)
(4) Judgment

236
Affidavits and Attachments
As a general rule, trial is not necessary. However,
The motion shall attach affidavit and supporting when judgment is not rendered upon the whole
papers which must be based on personal case and for all the reliefs sought, trial shall be
knowledge. It shall set forth facts that would be made only on the controverted facts. Facts
admissible in evidence, and show affirmatively ascertained shall be deemed established and shall
that the affiant is competent to testify to the no longer be tried. (Rule 35, Sec. 4)
matters stated therein. Certified True Copy of all
papers or parts referred to in the affidavit shall be Remedy against the judgment itself
attached and served. (Rule 35, Sec. 5)
It is a final decision in a legal suit which can be
When there is bad faith in the affidavit, the court rectified by means of an appeal. (Aqualyn Corp.
shall order the party or counsel to pay the other vs CA, GR No. 99046, Sept. 28, 1992)
party, and may also be guilty of contempt, after
hearing. (Rule 35, Sec. 6) Judgment on the Pleadings (Rule 34) vs.
Summary Judgment (Rule 35)
Summary Judgment after Pre-Trial
Judgment on the Summary
The trial court may render summary judgment as Pleadings Judgment
justice may require, if at the pre-trial it finds that (Rule 34) (Rule 35)
facts exist which would warrant such judgment . When proper
"where an answer Will be granted "if the
(Arradaza vs. CA, G.R. No. 50422, Feb. 8, 1989)
fails to tender an pleadings, supporting
issue, or otherwise affidavits,
But a summary dismissal of the case without admits the material depositions, and
trial on the misconception that there are not allegations of the admissions on file,
factual issues between the contending parties is adverse party’s show that, except as
plainly without basis in fact and in law – and with pleading." to the amount of
grave abuse of discretion since it amounted to damages, there is no
Not available in: genuine issue as to
capricious and whimsical action. (Tano vs.
(a) Actions for any material fact and
Gironella, G.R. No. L-41714, Oct. 29, 1976) declaration of that the moving party
nullity of is entitled to a
Conduct of hearing marriage judgment as a matter
(b) Annulment of of law." (Rule 35, Sec.
The conduct of hearing lies within the within the marriage 2)
(c) Legal separation
discretion of the court.
(Rule 34, Sec. 1)
Basic distinction
The hearing is for the purpose of determining The existence or their sham or fictitious
whether the issues are genuine or not, not appearance of character
to receive evidence on the issues set up in the ostensible issues in
pleadings. (Carcon Dev’t. Corp. vs. CA, G.R. No. the pleadings In the case of a
L-41714, Oct. 29, 1976) summary judgment,
In a proper case for issues apparently
judgment on the exist-i.e. facts are
When trial is necessary
pleadings, there is no asserted in the

237
ostensible issue at all complaint regarding Motion shall only Motion shall attach:
because of the failure which there is as yet allege that the answer - Supporting
of the defending no admission, fails to tender an affidavits
party’s answer to disavowal or issue, or otherwise - Depositions
raise an issue. qualification; or admits the material - Admissions
specific denials or allegations of the - Specific law relied
affirmative defenses adverse party’s upon
are in truth set out in pleading (Rule 34, Which should all be in
the answer-but the Sec. 1) good faith (Rule 35,
issues thus arising Sec. 5)
from the pleadings Period to file comment / opposition
are sham, fictitious or 5 calendar days from Non-extendible 5
not genuine, as receipt (Rule 15, Sec. calendar days from
shown by affidavits, 5) receipt (Rule 35, Sec.
depositions, or 3)
admissions (Adolfo vs. Hearing
Adolfo, G.R. No. No hearing required, Not required, unless
201427, March 18, but discretionary court orders conduct
2015) upon the court (Rule of a hearing (Rule 35,
Basis 15, Sec. 6) Sec. 4)
Based exclusively Based not only on Trial
upon the pleadings pleadings but also No trial Trial is not necessary
without introduction upon the affidavits, when judgment is not
of evidence depositions and rendered upon the
admissions of the whole case, and there
parties showing that, are controverted facts
except as tot eh (Rule 35, Sec. 4)
amount of damages, Remedy on courts action on the motion
there is no genuine Not subject to appeal, petition for certiorari,
issue (Wood prohibition or mandamus
Technology Corp. vs Remedy on the Judgment itself
Equitable Banking Ordinary appeal
Corp., G.R. No.
153867, Feb. 17,
a) Effect of Order Denying a Motion for
2005)
Summary Judgment
How commenced
On motion of the On motion of the
claiming party; claiming party; No remedy against action of the Court on
motion for summary judgment
Motu proprio by the Motu proprio by the
court if the ground is court if the ground is Any action of the court on a motion for summary
apparent on the apparent on the judgment shall not be subject of an appeal or
answer; answer; petition for certiorari, prohibition or mandamus
(Rule 35, Sec. 3)
In Pre-Trial Order, the In Pre-Trial Order, the
court may order the court may order the
case Judgment on the case Judgment on the Rule to be observed in case judgment is
Pleading should there Pleading should there not rendered in the whole case
be a valid ground be a valid ground
Content of Motion

238
If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs
sought and a trial 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 is not in
controversy, and direct such further
proceedings in the action as are just. (Rule 35,
Sec. 4)
Rule if the case is not fully adjudicated on
motion
The court shall render separate judgments if
necessary when some facts existed without
controversy, while others were controverted.
Section 4 of Rule 35 pertains to a situation in
which separate judgments were necessary
because some facts existed without controversy,
while others were controverted. However, there
is nothing in this provision or in the Rules that
prohibits a subsequent separate judgment after a
partial summary judgment on an
entirely different subject matter had earlier been
rendered. There is no legal basis for petitioners'
contention that a judgment over the Swiss
accounts bars a motion for summary judgment
over the Arelma account. (Marcos, Jr. v. Republic,
G.R. Nos. 189434 & 189505, April 25, 2012)
Partial summary judgment
It applies when for some reason there can be no
full summary judgment. Trial should deal only
with the facts not yet specified or established.
3. RENDITION AND ENTRY OF
JUDGMENTS AND FINAL ORDERS
Rendition of Judgment
It is the filing of the decision, judgment or order
with the clerk of court, NOT the date of writing
the decision or judgment, nor the signing thereof
or even the promulgation thereof. (Echaus vs. CA,
G.R. No. 57343. July 23, 1990)
How rendered
A judgment or final order determining the merits
of the case shall be in writing personally and
directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of
the court (Rule 36, Sec. 1)
Thus, a Judgment is rendered at the time of filing
of the Judgment with the clerk of court.
Period for rendition
(a) All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
(b) Unless reduced by the SC, within 12 months
for lower collegiate courts and within 3
months for all other lower courts. (Sec. 15,
Art. VIII, 1987 Constitution)
When a case is deemed submitted for
resolution
A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
Rules of Court or by the court itself.
(Sec.15, Art. VIII, 1987 Constitution)
Extension of the period
An extension of the period may be granted by the
Supreme Court upon request by the judge
concerned on account of heavy caseload or by
239
other reasonable excuse. Without an extension, a
delay in the disposition of cases is tantamount to
gross inefficiency on the part of the judge. (Arap
vs. Mustafa, SCC-01-7, Mar. 12, 2002)
Entry of Judgments and Final Orders
Promulgation is the process by which a decision
is published, officially announced, made known to
the public or delivered to the COC for filing,
coupled with notice to the parties or their counsel.
(2 Herrera 151, 2007 Ed., Neria v. Commissioner
of Immigration, G.R. No. L-24800, 1968)

Entry of Judgment and Final Orders Distinguished from Promulgation of

Meaning Refers to the physical act Judgment
performed by the clerk of court in
entering the dispositive portion of Process by which a decision is published, officially
the judgment in the book of
announced, made known to the public or
entries of judgment after the same
has become final and executory. delivered to the clerk of court for filing, coupled
(Riano, Civil Procedure: The Bar with notice to the parties or their counsel. (Lindo
Lecture Series, Vol. I, 2022 Edition vs. COMELEC, G.R. No. 95016, Feb. 11, 1991)
p. 584)
When When Judgment is already Promulgation vs. Render vs. Entry
shall be final in the sense that no appeal
entered was taken from the decision of the
Promulgation Render Entry
trial or appellate court within the
reglementary period (People vs. Done by reading Done by Done by the
Daniel, G.R. No. L-40330, Nov. 20, the judgment in filing with act of the
1978) the presence of the clerk of clerk of
the accused and court the court in
If no appeal, or motion for new any judge of the judgment or entering the
trial or reconsideration is filed court in which it final order dispositive
within the time provided in was rendered. determining portion of
the Rules, the judgment or final the merits the
order shall forthwith be entered by of the case judgment in
the clerk in the book of entries of the book of
judgments. (Rule 36, Sec. 2) entries of
judgment
How The record shall contain:
after the
entered (a) the dispositive part of the
same has
judgment or final order and
become
(b) it shall be signed by the clerk,
final and
(c) with a certificate that such
executory.
judgment or final order has
become final and executory. The judgment is The The
(ibid.) not yet final and judgment is judgment
executory not yet final shall already
Date of The date of finality of the
and be final and
entry judgment or final order shall be
executory executory
deemed to be the date of its entry.
(ibid.) Usually in Applies to Applies to
criminal action both civil both civil
and criminal and criminal
Promulgation of judgment
action action

240
Conflict between disposition and opinion of filing of a motion for clarificatory judgment and
the court not to assail the judgment as void. (Riano, Civil
Procedure: The Bar Lecture Series, Vol. I, 2022
A judgment has two parts, namely: Edition, p. 555)
(a) the body of the judgment or ratio decidendi,
and Amendment of Judgment
(b) the dispositive portion of the judgment or
fallo.
A court has plenary power to alter, modify or even
set aside, its own decision, and even order new
The body of the decision, called the ratio
trial, at any time before the decision
decidendi, is not the part of the judgment that is
becomes final, or before an appeal from
subject to execution but the fallo because it is the
that decision has been perfected. (Francisco
latter which constitutes the judgment of the
vs. Bautista, G.R. No. 44167, Dec. 19, 1990)
court.

Once the judgment has become final and

As jurisprudence instructs: "The operative part in
executory upon the lapse of the reglementary
every judgment is the dispositive portion or the
period for appeal, the court can no longer
fallo" (Santos Yllana Realty Corporation v. Deang,
amend, modify, much less set aside the
G.R. No. 190043, June 21, 2017; Riano, Civil
same especially if in fact it has been partly
Procedure: The Bar Lecture Series, Vol. I, 2022
executed regardless of where the modification is
Edition, p. 554).
attempted to be made by the court rendering it
or by the highest court of the land. (Alba Patio de
General rule Exception
Makati vs. NLRC, G.R. No. 85393, Sept. 5, 1991)
The general rule is that Where the
where there is a conflict inevitable
between the dispositive conclusion from Supplemental Decision
portion or fallo of the the body of the
decision and the body of decision is that A supplemental decision does not take the place
the decision, the fallo there was a or extinguish the existence of the original. As its
controls. This rule rests on mistake in the
very name denotes, it only serves to bolster or
the theory that the fallo is dispositive
adds something to the primary decision. A
the final order while the portion, the body
opinion in the body is of the decision supplement exists side by side with the original.
merely a statement will prevail. It does not replace that which it supplements
ordering nothing. (Esquivel vs. Alegre, G.R. No. 79425 April 17,
(United Coconut Chemicals, Inc. vs. Valmores, 1989)
G.R. No. 201018, July 12, 2017)
Obiter dictum
Ambiguity in the judgment; clarificatory
judgment It is an opinion expressed by a court, which is not
necessary to the decision of the case before it. It
Where the judgment is difficult to execute is neither enforceable as a relief nor a source of
because of ambiguity in its terms, it is suggested judicially actionable claim. (M. De Leon, Remedial
that the remedy one should avail of, for the Law Reviewer-Primer, 2021 Edition, p. 223)
removal of the ambiguity in the judgment, is the

241
Final Judgment and Orders Rule grave injustice would
result from an
Effect of Final Judgment application of the
General Rule Exceptions Rules (Almuete vs.
Once a decision or (a) Correction of clerical People, G.R. No.
order becomes final errors (Filipinas 179611, Mar. 15,
and executory, it is Palmoil Processing, 2013)
removed from Inc. vs. Dejapa, G.R.
the power or No. 167332, Feb. 7, (g) When there are
jurisdiction of 2011) grounds for
the court which (b) Nunc pro tunc entries annulment of
rendered it to (Filipinas Palmoil judgment or petition
further alter or Processing, Inc. vs. for relief (Gochan vs.
amend it. (Siliman Dejapa, G.R. No. Mancao, G.R. No.
University vs. 167332, Feb. 7, 182314, Nov. 12,
Fontelo-Paalan, 2011) 2013)
G.R. No. 170948, (c) Whenever Remedies
June 16, 2007) circumstances Before judgment After judgment has
transpire after finality becomes final become final and
of the decision, and executory executory
rendering its (a) Motion for New (h) Petition for relief
execution unjust and Trial or from judgment
inequitable (Apo (b) Motion for under Rule 38
Fruits Corp. vs. Land Reconsideration (i) Direct action to
Bank of the Phils., (Rule 37) annul and enjoin the
G.R. No. 164195, Oct. (c) Appeals enforcement of the
12, 2010) judgment under
(d) In cases of special Rule 47 (where the
and exceptional alleged defect is not
nature, when it is apparent on its face
necessary in the or from the recitals
interest of justice to contained in the
direct modification in judgment) or;
order to harmonize (j) Direct action, as
the disposition with certiorari, or by
the prevailing collateral attack
circumstances against the
Industrial Timber challenged
Corp. vs. Ababon, judgment which is
G.R. No.164518, Jan. void upon its face
25, 2006) row here the nullity
(e) In case of void of the judgment is
judgments (FGU apparent from its
Insurance vs. RTC own recitals.
Makati, G.R. No. (Sentinel Insurance
161282, Feb. 23, Co. v. Ca G.R. No.
2011) 52482, February 23,
(f) Where there is a 1990)
strong showing that a In case of Ambiguity

242
 A party may file a motion for clarificatory their rendition and shall not be stayed by an
judgment (Almendras vs. Del Rosario, G.R. No. appeal taken therefrom (Sec. 4, Rule 39, Rules of
L-20158, July 29, 1968) Court).
• Correction of clerical errors or mistakes
(Cardoza vs. Singson, G.R. No. 59284, Jan.
Thus, the remedies against a judgment would
12, 1990)
• Supply an omission that made the necessarily refer to those remedies (a) before a
judgment ambiguous (Republic Surety & judgment becomes final and executory, and (b)
Ins. Co., Inc. vs. IAC, G.R. Nos. 71131-32, after the same becomes executory. (Riano, Civil
July 27, 1987) Procedure: The Bar Lecture Series, Vol. I, 2022
• Clarify an ambiguity (Partosa-Jo vs. CA, Edition, p. 587)
G.R. No. 82606, Dec. 18, 1992)
1. MOTION FOR NEW TRIAL OR
RECONSIDERATION (RULE 37)
T. POST JUDGEMENT REMEDIES
Grounds
(A) Remedies BEFORE Finality of Judgment
(1) Motion for New Trial / Motion for
Reconsideration Motion for New Trial Motion for
(2) Appeal Reconsideration
(a) Ordinary Appeal (Rules 40 and 41) (a) Fraud, accident, (a) The damages
(b) Petition for Review (Rules 42 and 43) mistake or excusable awarded are
(c) Petition for review on certiorari (Rule negligence which excessive;
45) ordinary prudence (b) The evidence
could not have is insufficient
(B) Remedies AFTER Finality of Judgment guarded against and to satisfy the
(1) Petition for certiorari by reason of which decision or final
(2) Petition for relief from judgment such aggrieved party order; or
(3) Petition for annulment of judgment has probably been (c) The decision or
(4) Collateral attack of judgment impaired in his final order is
rights; or contrary to
A judgment becomes executory upon the (b) Newly discovered law. (Rule 37,
evidence, which he Sec. 1)
expiration of the period to appeal from a
could not, with
judgment or order that finally disposes of the reasonable diligence,
action or proceeding, if no appeal has been duly have discovered and
perfected. A judgment also becomes executory produced at the trial,
after an appeal taken from the judgment or order and which if
has been finally resolved (Sec. 1, Rule 39, Rules presented would
probably alter the
of Court).
result. (Rule 37, Sec.
1)
On the other hand, within the period for appeal,
reckoned from the notice of the judgment or final
order, the said judgment or final order is not yet
executory except those judgments which, under
the Rules, are immediately executory, like those
provided for under Sec. 4 of Rule 39 of the Rules
of Court. Such judgments are enforceable after

243
Motion for New Trial
Fraud Where fraud is the ground, the
fraud must be extrinsic or
collateral.
Extrinsic fraud refers to acts
outside the trial. The extrinsic or
collateral fraud that invalidates a
final judgment must be such
that it prevented the
unsuccessful party from fully
and fairly presenting his case or
defense and the losing party
from having an adversarial trial
of the issue.
Extrinsic fraud can be
committed by a counsel against
his client when the latter is
prevented from presenting his
case to the court as when the
lawyer connives to defeat or
corruptly sells out his client’s
interest. (Duremdes v. Jorilla,
G.R. No. 234491, February 26,
2020)
Accident It is an event beyond the control
of the party.
There is accident when there is
an actual surprise incident
preventing one from attending
the trial.
Mistake Mistake as a ground means
mistake of fact and not
mistake of law.
A wrong choice in legal strategy
or mode of procedure will not be
considered a mistake for
purposes of granting a motion
for new trial.
Mistake as a ground also does
not apply and was never
intended to apply to a judicial
error which the court might have
committed in the trial since such
error may be corrected by
means of an appeal. (Duremdes
v. Jorilla, G.R. No. 234491,
February 26, 2020)
Mistake can be of such nature as
to cause substantial injustice to
one of the parties. It may be so
palpable that it borders on
extrinsic fraud. (City of Dagupan
v. Maramba, G.R. No. 174411,
July 2, 2014)
Excusable Excusable negligence as a
Negligence ground for a motion for new trial
requires that the negligence be
so gross that ordinary diligence
and prudence could not have
guarded against it.
This excusable negligence must
also be imputable to the party-
litigant and not to his or her
counsel whose negligence binds
his or her client. The binding
effect of counsel's negligence
ensures against the resulting
uncertainty and tentativeness of
proceedings if clients were
allowed to merely disown their
counsels' conduct.
Nevertheless, this rule has been
relaxed on several occasions
such as:
(1) where the reckless or gross
negligence of counsel
deprives the client of due
process of law;
(2) when the rule's application
will result in outright
deprivation of the client's
liberty or property; or
(3) where the interests of
justice so require.
Certainly, excusable negligence
must be proven. (City of
Dagupan v. Maramba, G.R. No.
174411, July 2, 2014)
Newly When the ground invoked in
Discovered seeking for a new trial is newly
Evidence discovered evidence,
jurisprudence has laid down the
following standards, also known
244
 as the Berry rule, before the Procedures in the First the Writ of Habeas
same may be granted, thus: Level Courts). Data), the motion for
(1) the evidence was reconsideration that is
discovered after trial; The motion is also prohibited is one
(2) such evidence could not prohibited in actions directed against an
have been discovered and for unlawful detainer interlocutory order or
produced at the trial even and forcible entry interim relief order.
with the exercise of (Sec. 13[3] Rule 70, The rule does not
reasonable diligence; Rules of Court), such proscribe the filing of
(3) it is material, not merely actions being a motion for
cumulative, corroborative, governed by the Rules reconsideration of the
or impeaching; and on Summary final judgment or
(4) the evidence is of such Procedure (Sec. 3, order that grants or
weight that it would Rule 70, Rules of denies a writ of
probably change the Court) amparo (Mamba v.
judgment if admitted. Bueno, G.R. No.
191416, February 7,
If the alleged newly discovered 2017). The same rule
evidence could have been very applies in a petition
well presented during the trial for a writ of habeas
with the exercise of reasonable data.
diligence, the same cannot be A motion for A motion for
considered newly discovered. reconsideration of a reconsideration of a
(Baritua v. People, G.R. No. judgment is judgment is allowed
228202, July 7, 2021) prohibited under Sec. (Sec. 1, Rule 2, Part
2(d), Rule II of the II, Rules of Procedure
Note: A Motion for New Trial shall include all Rules on Expedited for Environmental
grounds then available and those not so included Procedures in the First Cases).
Level Courts (A.M.
shall be deemed waived. (Rule 37, Sec. 5)
No. 08-8-7-SC).
(Riano, Civil Procedure: The Bar Lecture Series,
Instances when Motion for
Vol. I, 2022 Edition, p. 588)
Reconsideration, allowed or prohibited
When to file
The motion for reconsideration referred to under
Rule 37 is one that is directed against a judgment
The motion for new trial or reconsideration shall
or a final order. It is not the motion for
be filed within the period for taking an
reconsideration of an interlocutory order which
appeal. (Rule 37, Sec. 1)
normally precedes a petition for certiorari under
Rule 65.
Kind of Period to File
Appeal
Prohibited Allowed
Notice of Fifteen (15) days from notice of
Motion for In a petition for a writ
reconsideration in of amparo (Sec. Appeal the judgment or final order. (Rule
cases covered by 11[k], The Rule on 40, Sec. 2)
summary procedure the Writ of Amparo) Record on Thirty (30) days from notice of the
(Sec. 2, Rule II, Rules and habeas data (Sec. Appeal judgment or final order. (Rule 40,
on Expedited 13[k], The Rule on Sec. 2)

245
 (a) the nature or
The period for filing a motion for new trial or character of the
reconsideration is non-extendible. (Bolos v. fraud, accident,
Bolos, G.R. No. 186400, October 20, 2010) mistake, or
excusable
negligence on
This rule, however, admits of exceptions based which the motion
on a liberal reading of the rule, so long as the for new trial is
movant is able to prove the existence of cogent based;
reasons to excuse its non-observance. (Gonzales (b) the facts
v. Serrano, G.R. No. 175433, March 11, 2015) constituting the
movant’s good and
substantial and
Contents valid defenses are
valid causes of
Motion for New Motion for action; and
Trial Reconsideration (c) the evidence of
(1) The motion shall be (1) The motion which he intends to
made in writing shall be made in present if his
stating the ground writing stating the motion is granted.
or grounds ground or grounds (Nuguid vs. Carino,
therefor. (Rule 37, therefor. G.R. No. L-12379,
Sec. 2) June 31, 1958)
(2) A motion for
The motion shall reconsideration The requisite affidavit
include all shall point out of merit may be
grounds then specifically the dispensed with when:
findings or (a) the judgment is null
available and
conclusions of the and void;
those not so judgment or final (b) the judgment is
included shall be order which are procedurally
deemed waived. not supported by defective; and
(Rule 37, Sec. 5) the evidence or (c) the defendant was
which are contrary unreasonably
(2) A motion for new to law, making deprived of his day
trial shall be proved express reference in court.
in the manner to the testimonial
provided for proof or documentary This may be rebutted
of motions. (Rule evidence or to the
by affidavits. (Rule 37,
37, Sec. 2) provisions of law
alleged to be Sec. 2)
contrary to such
(3) Affidavit of Merits (4) A motion for new
findings or
conclusions. (Rule trial on the ground
For FAMEN grounds, 37, Sec. 2) of newly discovered
the affidavit of merit evidence shall be
shall state: supported by
affidavits of the
witnesses by whom

246
 such evidence is A pro forma motion for new trial or
expected to be reconsideration shall not toll the reglementary
given, or by duly period of appeal. (Rule 37, Sec. 2)
authenticated
NOTE: This rule does not apply in criminal
documents which
are proposed to be cases. (People vs. Colmenares, G.R. No. L-
introduced in 13284, February 29, 1960)
evidence. (Rule 37,
Sec. 2) Notice requirement
Pro-Forma Motion
A motion for new trial is A motion for A written notice of the motion for new trial or
considered pro forma reconsideration was reconsideration shall be served by the movant
when it does not considered pro- upon the adverse party. (Rule 37, Sec. 2)
comply with the above- forma in the
mentioned following instances: A motion for new trial or reconsideration that
requirements, or when: (a) it was a second does not comply with the requirements of notice
(a) it is based on the motion for of hearing and proof of service does not likewise
same grounds as reconsideration,
toll the reglementary period of appeal. (Rule 37,
that raised in a or
Sec. 2)
preceding motion (b) it did not comply
for new trial or with the rule that
reconsideration the motion must Second Motion
already denied; or specify the
(b) it contains the findings and Motion for New Motion for
same arguments conclusions Trial Reconsideration
and manner of alleged to be
contrary to law or A second motion for No party shall be
discussion
appearing in the not supported by new trial, based on allowed a second
prior opposition to the evidence a ground not motion for
the granted motion (Rule 37, Sec. 2), existing nor reconsideration of a
to dismiss. (Rule or available when the judgment or final order.
37, Sec. 2) (c) it failed to first motion was (Rule 37, Sec. 5)
substantiate the
made, may be filed
alleged errors, or
(d) it merely alleged within the time
that the decision herein provided
in question was excluding the time
contrary to law, during which the
or first motion had
(e) the adverse been pending. (Rule
party was not
37, Sec. 5)
given notice
thereof. (PNB vs.
Paneda, When Second Motion for Reconsideration
G.R.No.149236, could be allowed
February 14,
2007)
Effect of Pro-Forma Motion

247
Note: PAL's Second Motion for Reconsideration and competent to mere supplemental
of the Decision of July 22, 2008 establish the issues, decision which does not
could be allowed in the higher interest of justice. shall be used at the supplant the original but
new trial without only serves to add
The conditions that must concur in order for the retaking the same. something to it.
Court to entertain a second motion for (Rule 37, Sec. 5) (Esquivel vs. Alegre,
reconsideration are the following, namely: G.R. No. 79425, April
(1) The motion should satisfactorily explain why 17, 1989)
granting the same would be in the higher
interest of justice; Partial New Trial or Reconsideration
(2) The motion must be made before the ruling
sought to be reconsidered attains finality;
(3) If the ruling sought to be reconsidered was If the grounds for a motion under this Rule
rendered by the Court through one of its appear to the court to affect the issues as to only
Divisions, at least three members of the a part, or less than all of the matter in
Division should vote to elevate the case to controversy, or only one, or less than all, of the
the Court En Banc; and parties to it, the court may order a new trial or
(4) The favorable vote of at least two-thirds of
grant reconsideration as to such issues if
the Court En Banc's actual membership must
severable without interfering with the judgment
be mustered for the second motion for
reconsideration to be granted. (Flight or final order upon the rest. (Rule 37, Sec. 7)
Attendants and Stewards Association of the
Philippines v. Philippine Airlines, Inc., G.R. Effect of Order for Partial New Trial
Nos. 178083 & A.M. No. 11-10-1-SC
(Resolution), March 13, 2018) When less than all of the issues are ordered
retried, the court may either enter a judgment or
Effect as to grant
final order as to the rest, or stay the enforcement
of such judgment or final order until after the new
Motion For New Motion For
trial. (Rule 37, Sec. 8)
Trial Reconsideration
If a new trial is If the court finds that a) REMEDY AGAINST DENIAL
granted in excessive damages
accordance with the have been awarded or Remedy against Order denying a Motion
provisions of this that the judgment or for New Trial or Reconsideration
Rule, the original final order is contrary to
judgment or final the evidence or law, it General Rule Exceptions
order shall be may amend such An order denying An appeal from an order
vacated, and the judgment or final order a motion for new denying a motion for
action shall stand accordingly. (Rule 37, trial or reconsideration of an
for trial de novo; Sec. 3) reconsideration is order of dismissal of a
not appealable, complaint is effectively an
but the recorded The amended judgment
the remedy being appeal of the order of
evidence taken is in the nature of a new
an appeal from dismissal itself (Quelnan
upon the former judgment which the judgment or vs. VHF Philippines, G.R.
trial, in so far as the supersedes the original final order. (Rule No. 145911, July 7, 2004;
same is material judgment. It is not a 37, Sec. 9) Mendiola vs. Court of

248
 Appeals, G.R. No. can be an order denying the motion for a new
159746, July 18, 2012). trial or reconsideration.

Order denying motion for
reconsideration of a
decision was not an
interlocutory order
because it completely
disposed of a particular
matter. Hence, the order
can be appealed
(Republic vs. Ortigas and
Company Limited
Partnership, G.R. No.
171496, March 3, 2014).
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, pp. 228-229)
b) FRESH-PERIOD RULE
In an ordinary appeal under Rules 40 and 41 a
party is now given a fresh 15 days from the denial
of motion for reconsideration or new trial within
which to file notice of appeal.
In Neypes v. Court of Appeals, the Supreme Court
ruled that the adverse party has a fresh period of
fifteen (15) days within which to file the notice
of appeal in the Regional Trial Court, counted
from receipt of the order dismissing a
motion for a new trial or motion for
reconsideration.
The fresh period of 15 days becomes significant
only when a party opts to file a motion for new
trial or motion for reconsideration. The new 15-
day period may be availed of only if either
motion is filed; otherwise, the decision becomes
final and executory after the lapse of the original
appeal period. (Neypes vs. CA, G.R. No. 141524
September 14, 2005)
This rule applies only to judicial appeals and not
to administrative appeals. Hence, this rule applies
to criminal cases. (Yu v. Tatad, G.R. No. 170979,
February 9, 2011)
Prohibited Pleading
A motion for new trial, or for reconsideration of a
judgment on the merits in cases covered by the
Rules on Expedited Procedures in the First Level
Courts shall not be allowed. (Rules on Expedited
Procedures in the First Level Courts, Rule II, Sec.
2, A.M. No. 08-8-7-SC, as amended, effective
April 11, 2022)
2. APPEALS
a) NATURE OF RIGHT TO APPEAL

The Rules provides: “The appeal shall be taken
within fifteen (15) days from notice of the
judgment OR final order appealed from”
The use of the disjunctive word "or" signifies
disassociation and independence of one thing
from another. It should, as a rule, be construed
in the sense in which it ordinarily implies. Hence,
the use of "or" in the above provision supposes
that the notice of appeal may be filed within 15
days from the notice of judgment or within 15
days from notice of the "final order," which we
Appeal is the remedy available to a litigant
seeking to reverse or modify a judgment on the
merits of a case. The right to appeal is not
constitutional or natural, and is not part of due
process but is a mere statutory privilege. Thus, it
must be availed in keeping with the manner set
by law and is lost by a litigant who does not
comply with the rules. (Cortal v. Inaki A.
Larrazabal Enterprises, G.R. No. 199107, August
30, 2017)
It is basic that appeal is not a matter of right.
Parties wishing to appeal must comply with the

249
rules, otherwise they lose their opportunity to
appeal (Kumar v. People, G.R. No. 247661, June
15, 2020):
Rules of procedure are required to be followed,
except only when, for the most persuasive of
reasons, they may be relaxed to relieve the
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying
with the procedure prescribed. (Gabriel v. Court
of Appeals, G.R. No. 149909, October 11, 2007)
b) JUDGEMENTS AND FINAL ORDERS
SUBJECT TO APPEAL
An appeal may be taken from a judgment or final
order that completely disposes of the case, or of
a particular matter therein when declared by
these Rules to be appealable. (Rule 41, Sec. 1)
Section 1 of Rule 41 enunciates the final
judgment rule by providing that an appeal "may
be taken from a judgment or final order that
completely disposes of the case, or of a particular
matter therein when declared by these Rules to
be appealable." In the context of the final
judgment rule, Section 1 of Rule 109 does not
limit the appealable orders and judgments in
special proceedings to the final order or judgment
rendered in the main case, but extends the
remedy of appeal to other orders or dispositions
that completely determine a particular matter in
the case||| (Chipongian v. Benitez-Lirio, G.R. No.
162692, August 26, 2015)
Unappealable decisions, judgments or final
orders
The decision, judgment or final order of the
following are final, executory, and unappealable:
(1) the first level courts in cases covered by the
Rules on Small Claims (Revised Rules on
Small Claims Cases, Rule IV, Sec. 24, A.M.
No. 08-8-7-SC, as amended, effective April
11, 2022) and
(2) the Regional Trial Court on the appeal
covered by the Rules on Summary Procedure.
(Revised Rules on Summary Procedure, Rule
III, Sec. 2, A.M. No. 08-8-7-SC, as amended,
effective April 11, 2022)
c) MATTERS NOT APPEALABLE;
AVAILABLE REMEDIES
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
or duress, or any other ground vitiating
consent;
(f) An order of execution;
(g) A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an appeal
therefrom; and
(h) An order dismissing an action without
prejudice. (Rule 41, Sec. 1; Leviste
Management System, Inc. v. Legaspi Towers
200, Inc., G.R. Nos. 199353 & 199389, April
4, 2018)
Available remedies in matters not
appealable
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action under
Rule 65. (Leviste Management System, Inc. v.
Legaspi Towers 200, Inc., G.R. Nos. 199353 &
199389, April 4, 2018; A.M. No. 07-7-12-SC,
December 1, 2007)
250

At any rate, the remedy against an interlocutory
order, not subject of an appeal, is an appropriate
special civil action under Rule 65, provided that
the interlocutory order is rendered without or in
excess of jurisdiction or with grave abuse of
discretion. Only then is certiorari under Rule 65
allowed to be resorted to. (Crisologo vs. JEWM
Agro-Industrial Corporation, G.R. No. 196894,
March 3, 2014)
Remedy against an order of execution;
exceptions
It was held, however, that while an order of
execution is not appealable, the rule is not
absolute since a party aggrieved by an improper
or irregular execution is not without a remedy.
The Court emphasized that to rule that a special
civil action for certiorari constitutes the sole and
exclusive remedy to assail a writ or order of
execution would unduly restrict the remedy
available to a party prejudiced by an improper or
illegal execution, as when the writ of execution
varies the judgment, there is a change in the
situation of the parties, the writ of execution is
improvidently issued, the writ is defective in
substance, or is issued against the wrong party.
In these exceptional circumstances,
considerations of justice and equity dictate that
there be some mode available to the party
aggrieved of elevating the question to a higher
court. That mode of elevation may be either by
appeal, or by a special civil action for certiorari,
prohibition, or mandamus (Riano, Civil
Procedure: The Bar Lecture Series, Vol. I, 2022
Edition, p. 612 citing City Government of Makati
v. Odelia, G.R. No. 191661, August 13, 2013)
When appeal is available, certiorari will not
prosper, even if the ground invoked is grave
abuse of discretion (Butuan Development
Corporation vs. Court of Appeals, G.R. No.
197358, January 10, 2018)
d) DOCTRINE OF IMMUTABILITY OF
JUDGMENT
When a judgment attains finality, it becomes
immutable and unalterable, resisting even
correction due to perceived errors of law or fact.
Execution of the judgment becomes a matter of
course. (Gocolay v. Gocolay, G.R. No. 220606,
January 11, 2021)
It is a fundamental principle that a judgment that
lapses into finality becomes immutable and
unalterable. The primary consequence of this
principle is that the judgment may no longer be
modified or amended by any court in any manner
even if the purpose of the modification or
amendment is to correct perceived errors of law
or fact. This principle known as the doctrine of
immutability of judgment is a matter of sound
public policy, which rests upon the practical
consideration that every litigation must come to
an end. (Mercury Drug Corporation vs. Spouses
Huang, G.R. No. 197654, August 30, 2017)
Rationale
The doctrine of immutability and inalterability of
a final judgment has a two-fold purpose:
To avoid delay in the administration of justice and
thus, procedurally, to make orderly the discharge
of judicial business and
To put an end to judicial controversies, at the risk
of occasional errors, which is 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. (Social Security System vs. Isip, G.R. No.
165417, April 4, 2007)
251
Exceptions to the Doctrine of Immutability
of Judgment
The doctrine of immutability of judgment,
however, is not an ironclad rule. It is subject to
several exceptions, namely:
(1) The correction of clerical errors
Clerical errors or ambiguities in the dispositive
portion of a judgment may result from
inadvertence. These errors can be rectified
without violating the doctrine of immutability of
judgment provided that the modification does not
affect the substance of the controversy.
(2) The so-called nunc pro tunc entries
which cause no prejudice to any party
"Nunc pro tunc" is a Latin phrase that means
"now for then.” A judgment nunc pro tunc is
made to enter into the record an act previously
done by the court, which had been omitted either
through inadvertence or mistake. It neither
operates to correct judicial errors nor to "supply
omitted action by the court." Its sole purpose is
to make a present record of a "judicial action
which has been actually taken.
(3) Void judgments
The doctrine of immutability of judgment is
premised upon the existence of a final and
executory judgment. It is, therefore, inapplicable
where the judgment never attains finality, as in
the case of void judgments. Void judgments
produce "no legal or binding effect." Hence, they
are deemed non-existent. Parties may, therefore,
challenge them without running afoul of the
doctrine of immutability of judgment.
(4) Whenever circumstances transpire
after the finality of the decision
rendering its execution unjust and
inequitable.
One exception to the immutability of judgments
is when there exists a supervening event, or facts
which transpire after judgment has become final
and executory or to new circumstances which
developed after the judgment has acquired
finality, including matters which the parties were
not aware of prior to or during the trial as they
were not yet in existence at that time. A
supervening event renders the execution of the
judgment impossible or unjust, requiring new
relief to be granted as the new facts or
circumstances warrant.
For a supervening event to be an exception to the
execution of a final judgment, the following must
concur:
(1) the fact or circumstance must occur after the
judgment became final and executory; and
(2) the fact or circumstance must be shown to
affect or change the judgment's substance,
making its execution inequitable.
Conversely, the Supreme Court does not consider
to be supervening event facts and circumstances
that arose before the judgment became final and
executory, but were only raised after. Further, if
the fact or circumstance did not materially change
the parties' situation and did not materially affect
the execution of the judgment, it cannot be
considered a supervening event. An instance
would be the death of a party, as they may be
substituted by heirs. (Mercury Drug Corporation
vs. Spouses Huang, G.R. No. 197654, August 30,
2017; Gocolay v. Gocolay, G.R. No. 220606,
January 11, 2021)
252
Errors to be considered by the appellate
court
General The appellate court shall
Rule consider no error unless stated in
the assignment of errors. (Sec. 8,
Rule 51)
Exception The court may consider an error
not assigned as error or raised on
appeal provided the same falls
within any of the following
categories:
(a) It is an error that affects the
jurisdiction over the subject
matter;
(b) It is an error that affects
validity of the judgment
appealed from;
(c) It is an error which affects
the validity of the
proceedings;
(d) It is an error closely related
to or dependent on an
assigned error, and
properly argued in the brief
(Heirs of Marcelino Doronio
v. Heirs of Fortunato
Doronio, 541 SCRA 479);
and
(e) It is a plain and clerical
error (Sec. 8, Rule 51, Rules
of Court; Martires v. Chua,
694 SCRA 38, 52-53, March
20, 2013).
(Riano, Civil Procedure: The Bar Lecture Series,
Vol. I, 2022 Edition, p. 615)
e) MODES OF APPEAL (PERIOD,
PERFECTION, ISSUES TO BE RAISED)
(1) APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL
COURTS (RULE 40)
Procedure in the MTC
The appeal from judgement or final order of the
MTC may be taken to the RTC by ordinary appeal.
It is taken by filing a notice of appeal in the MTC
which rendered the judgment or final order
appealed from unless a record on appeal is
required. (Salazar, The Fundamentals of Civil
Procedure, p. 257, 2021)
NOTE: However, when the MTC renders
judgement in the exercise of its delegated
jurisdiction in cadastral and land registration
cases, its decision shall be appealable in the same
manner as decisions in the RTC. Hence, the
appeal shall be taken to the CA, not to the RTC
(Sec 34, Judiciary Reorganization Act, as
amended)
Appeal from MTC to RTC
How to By filing a notice of appeal to
appeal the MTC (the court which
rendered the judgment or final
order appealed from). (Rule 40,
Sec. 3)
Payment of appellate court
docket and other lawful fees to
the MTC (Rule 40, Sec 5).
Where to To the RTC exercising
appeal jurisdiction over the area to
which the MTC pertains. (Rule
40, Sec. 1)
When to Within fifteen (15) days from
appeal: (By notice to the appellant of the
notice of judgement or final order. (Rule
appeal) 40, Sec. 2)
When to Within thirty (30) days from
appeal: (By notice to the appellant of the
record on judgement or final order. (Rule
appeal) 40, Sec 2)
NOTE: The timely filing of a motion for new
trial or reconsideration interrupts the period to
appeal. Where a motion for new trial or
reconsideration is filed, the period to appeal (15-
days) shall be counted from the notice of the
order denying the said motion (Neypes vs. CA,
G.R. No. 141524, September 14, 2005).
In short, the 15-day period to appeal shall be
counted from the notice of the order denying the
253
said motion, not from the notice of the judgment on appeal filed in due
of the case itself. time. (Rule 41, Sec. 9)
Effect of perfection of appeal
Record on Appeal Court loses Court loses
jurisdiction over case jurisdiction only over
When A record on appeal is required upon perfection of the subject matter upon
required only in special proceedings and appeals filed in due approval of records on
in other cases of multiple or time and expiration of appeal filed in due
separate appeals (Rule 40, Sec. time to appeal of time and expiration of
3). other parties the time to appeal of
Purpose A record on appeal is also other parties. (Brual
required in special proceedings vs. Contreras, G.R.
requiring multiple appeals No. 205451, March 7,
since the original records of the 2022)
case should remain with the
trial court to enable it to Appeals from Orders dismissing case
proceed with the rest of the without trial; lack of jurisdiction
case which has a separate and
distinct issue.
General A dismissal on the ground of lack
Rule of jurisdiction is a dismissal
Difference of Notice of Appeal from Record without prejudice and is
on Appeal therefore, not appealable.
Exception However, Rule 40, Sec. 8 allows
Notice of Appeal Record on Appeal an appeal from an order of the
How made MTC dismissing a case due to
The appeal is taken by A record on appeal lack of jurisdiction. There are
filing a notice of shall be required only three (3) possible scenarios if the
appeal with the court in special proceedings dismissal in the MTC was due to
that rendered the and in other cases of lack of jurisdiction:
judgment or final multiple or separate Dismissal Effect
order appealed from appeals (Rule 40, Sec. Dismissed The case shall
and copies are served 3). without be remanded
on the adverse party conducting trial to the MTC for
(Rule 40, Sec. 3) on the merits further
When made and the RTC proceedings.
Within 15 days after Within 30 days from reverses such (Rule 40, Sec.
notice to the appellant notice of the dismissal. 8, 1st par.)
of the judgment or judgment or final Dismissed It shall not
final order appealed order. (Rule 40, Sec. without dismiss the
from. (Rule 40, Sec. 2) conducting trial appeal and
2) on the merits shall try the
When perfected and the RTC case on the
Deemed perfected as Deemed perfected as affirms such merits as if the
to him upon the filing to appellant with dismissal and same was
of the notice of appeal respect to the subject finds that it has originally filed
in due time. (Rule 41, matter upon the jurisdiction with it. (Rule
Sec. 9) approval of the record over the case. 40, Sec. 8, 2nd
par)

254
 Dismissed the The RTC shall (4) Upon the filing of the memorandum of the
case after not dismiss the appellee, or the expiration of the period to
conducting trial case on appeal do so, he case shall be considered submitted
on the merits, but shall for decision. The Regional Trial Court shall
but MTC lacks proceed to decide the case on the basis of the entire
jurisdiction review the record of the proceedings had in the court of
over the case. judgement origin and such memoranda as are filed
appealed from (Rule 40, Sec. 7)
if it has original
jurisdiction (2) APPEAL FROM THE REGIONAL TRIAL
over the same. COURTS (RULE 41)
(Rule 40, Sec.
8, 3rd par.) Appeals from the judgment or final order of the
Regional Trial Court vary depending on the
Procedure in the RTC nature of the judgment appealed from or
(1) Upon receipt of the complete record or the on the matters raised in the appeal itself
record on appeal, the clerk of court of the (Salazar, The Fundamentals of Civil Procedure,
Regional Trial Court shall notify the parties p. 257, 2021)
of such fact.
(2) Within fifteen (15) days from such notice, it Where to appeal
shall be the duty of the appellant to submit Ordinary In the RTC which rendered the
a memorandum which shall briefly discuss Appeal judgement appealed from.
the errors imputed to the lower court, a copy (Rule 41, Sec 2)
of which shall be furnished by him to the Petition To the CA (Rule 42, Sec 1)
adverse party. for
(3) Within fifteen (15) days from receipt of the Review
appellant's memorandum, the appellee may Appeal by To the SC (Rule 45, Sec 1)
file his memorandum. Failure of the Certiorari
appellant to file a memorandum shall be a
ground for dismissal of the appeal.

Salient Points - Modes of Appeal from the RTC

Mode of Appeal Jurisdiction exercised by the RTC; What to file
Issues to be raised
Ordinary Appeal to the CA in cases decided by the Notice of appeal
Appeal RTC in its original jurisdiction. (Rule 41,
Sec 2) Record on appeal if it involves a special
proceeding and other cases of multiple
May raise questions of fact and mixed appeals.
questions of fact and law
Petition for Appeal to the CA in cases decided by the Verified petition for review under Rule 42.
Review RTC in its appellate jurisdiction. (Rule
41, Sec 2)

Questions of law or of fact or both

Appeal by In all cases where only questions of law Verified petition for review on certiorari
Certiorari are raised or involved. (Rule 41, Sec 2) under Rule 45.
Period to appeal

255
 Ordinary Notice of appeal: Within fifteen (15) days from notice of the judgement, final order,
Appeal or resolution appealed.

Record on Appeal: Within thirty (30) days from notice of the judgement or final order
appealed from.

Habeas Corpus Case: Within 48 hours from notice of the judgement or final order
appealed from. (Rule 41, Sec 3)
Petition for Within fifteen (15) days from the notice of the judgement sought to be reviewed, or
Review of the denial of petitioner’s motion for new trial or reconsideration filed in due time
after judgement.

Upon proper motion, the CA may grant an additional period of fifteen (15) days. (Rule
42, Sec. 1)
Appeal by Within fifteen (15) days from the notice of the judgement appealed from, or of the
Certiorari denial of petitioner’s motion for new trial or reconsideration filed in due time after
judgement.

On motion duly filed, the SC may grant an extension of thirty (30) days within which
to file the petition. (Rule 45, Sec 2)
Perfection of appeal
Ordinary A party's appeal by notice of appeal is deemed perfected as to him upon the filing of
Appeal from the notice of appeal in due time.
the RTC`
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of
the other parties (Rule 41, Sec. 9).
Appeal by A party's appeal by record on appeal is deemed perfected as to him with respect to
Record on the subject matter thereof upon the approval of the record on appeal filed in due
Appeal time. In appeals by record on appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties (Rule 41, Sec. 9).

Reckoning point of reglementary period
Period for filing the appeal should be counted
from the date when the party’s counsel received
a copy of the judgment or final order because that
is the effective service of the decision. When a
party is represented by counsel, service of
process must be made on counsel, not on the
party (Fajardo vs. CA, G.R. No. 140356 March 20,
2001); Rule 13, Sec. 2)
(3) PETITION FOR REVIEW FORM THE
REGIONAL TRIAL COURT TO THE
COURT OF APPEALS (RULE 42)
Where the judgment or final order was rendered
by the RTC in its appellate jurisdiction, the proper
remedy is to file a Petition for Review to the CA
under Rule 42.
Issues to be raised
Such may be brought to the CA on questions of
fact, questions of law, or mixed questions of fact
and law.
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).

256
Petition for Review is not a matter of right but
discretionary on the CA.
Petition for Review from RTC to CA
Where to From RTC to the CA
appeal
When to (1) Within 15 days from notice
appeal 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 (1) Filing a verified Petition for
appeal 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).
Grounds for Outright Dismissal by CA (Motu
Proprio Dismissal)
(1) 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
(2) Patently without merit;
(3) Prosecuted manifestly for Delay; or,
(4) Questions raised are too unsubstantial to
require consideration (Rule 42, Sec. 4).
When perfected
Appeal is deemed perfected as to petitioner upon
the:
(1) Timely filing of the petition, and
(2) Payment of the corresponding docket and
lawful fees (Rule 42, Sec. 8[a])
(4) APPEALS FROM THE COURT OF TAX
APPEALS, CIVIL SERVICE
COMMISSION, AND QUASI-JUDICIAL
AGENCIES (RULE 43)
The remedy against decisions or final order of a
division of the CTA is to file a motion for
reconsideration to the same division. Thereafter,
the remedy is to file a Petition for Review under
Rule 43 to the CTA sitting En Banc.
The judgment or final order of the CTA En Banc
is the one which is appealable to the Supreme
Court by way of Petition for Review on Certiorari
under Rule 45 raising purely questions of law
(Salazar, The Fundamentals of Civil Procedure,
2021 Edition, p. 273).
Quasi-judicial agencies covered
These quasi-judicial agencies wherein this mode
of appeal may be taken are:
(a) Civil Service Commission
(b) Central Board of Assessment Appeals
(c) Securities and Exchange Commission
(d) Office of the President
(e) Land Registration Authority
(f) Social Security System
(g) Civil Aeronautics Board
(h) Intellectual Property Office
(i) National Electrification Administration
(j) Energy Regulatory Board
(k) National Telecommunications Commission
(l) Department of Agrarian Reform under R.A.
No. 6657
(m) Government Service Insurance System
(n) Employees Compensation Commission
(o) Agricultural Inventions Board
(p) Insurance Commission
257
(q) Board of Investments (i) where the issue of non-exhaustion of
(r) Philippine Atomic Energy Commission administrative remedies has been rendered
(s) Construction Industry Arbitration moot;
Commission (j) where strong public interest is involved; and
(t) Voluntary arbitrators authorized by law (k) in quo warranto proceedings. (Ejera vs.
(Rule 43, Sec. 1) Merto, G.R. No. 163109, January 22, 2014)

Issues to be raised Court of Tax Appeals

The appeal under Rule 43 may raise issues Where to First, file a Motion for
involving questions of fact, of law or mixed file Reconsideration to the same
questions of fact and law. It may only give division which rendered the said
due course to the petition if it shows on its face judgement, final order, or award
that the court or agency concerned has Second, file a petition for review
committed an error of fact and/or law that will to the CTA sitting en banc.
warrant a reversal or a review thereof (Rule 43,
Sec. 10) Last, file a petition for review on
certiorari under Rule 45 to the
If the petition is given due course, the CA may set SC raising purely questions of
the case for oral argument or require the parties law.
to submit memoranda within a period of fifteen When to Within fifteen (15) days from
(15) days from notice. The case shall be deemed file notice of judgement.
submitted for decision upon the filing of the last What to Verified petition for review on
pleading or memorandum required by these file certiorari. (Rule 45, Sec. 1)
Rules or by the court itself (Rule 43, Sec. 13)
Quasi-judicial Agencies
Doctrine of exhaustion of administrative
remedies does not apply in the following Where to Appeal may be taken to the CA
cases: file on questions of fact, of law, or
mixed questions of fact and law.
(a) where there is estoppel on the part of the (Rule 43, Sec. 3)
party invoking the doctrine; When to Within fifteen (15) days from
(b) where the challenged administrative act is file notice of the award, judgement,
patently illegal, amounting to lack of final order, or resolution. Or of
jurisdiction; the order denying the
(c) where there is unreasonable delay or official petitioner’s motion for new trial
inaction that will irretrievably prejudice the or reconsideration.
complainant;
(d) where the amount involved is relatively so Upon proper motion and the
small as to make the rule impractical and payment of the full amount of
oppressive; the docket fee before the
(e) where the question involved is purely legal expiration of the reglementary
and will ultimately have to be decided by the period, the Court of Appeals may
courts of justice; grant an additional period of
(f) where judicial intervention is urgent; fifteen (15) days only within
(g) where the application of the doctrines may which to file the petition for
cause great and irreparable damage; review. (Rule 43, Sec. 4)
(h) where the controversial acts violate due What to Appeal shall be taken by filing a
process; file verified petition for review in

258
 seven (7) legible copies with the
Court of Appeals, with proof of
service of a copy thereof on the
adverse party and on the court
or agency a quo. The original
copy of the petition intended for
the Court of Appeals shall be
indicated as such by the
petitioner. (Rule 43, Sec. 5)
Grounds for Outright Dismissal by CA of the
Petition (Motu Proprio Dismissal)
(1) Failure of the petition to comply with the
requirements on form (Rule 43, Sec. 7);
• 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
Patently without merit
(2) Prosecuted manifestly for Delay; or
(3) Questions raised are too unsubstantial to
require consideration (Rule 43, Sec. 8)
Effect of Appeal
The appeal shall not stay the award, judgment,
final order, or resolution sought to be reviewed
unless the Court of Appeals direct otherwise
(Rule 43, Sec. 12).
Thus, in order to stay the execution of the
appealed judgment, final order or resolution, the
petition shall contain a prayer for the issuance of
a temporary restraining order or any injunctive
relief. It is only when such application is granted
that the judgment, final order or resolution shall
be stayed (Salazar, The Fundamentals of Civil
Procedure, p. 278, 2021).
Unappealable decisions
The following decisions are unappealable:
(1) In administrative cases where respondent is
absolved of the charge;
(2) In case of conviction where penalty imposed
is public censure or reprimand or suspension
of not more than one month or a fine
equivalent to one month salary (Sec. 7, Rule
III, Admin Order No. 7)
Appeal from NLRC
Appeal from quasi-judicial agencies under Rule 43
does not apply to judgments or final orders issued
under the Labor Code (Rule 43, Sec. 2). The
remedy of a party aggrieved by the decision of
the NLRC is to file a motion for reconsideration
and, if denied, file a special civil action for
certiorari under Rule 65 within 60 days from
notice of the decision. In observance of the
doctrine of hierarchy of courts, this should be filed
with the CA (St. Martin Funeral Homes v. NLRC,
G.R. No. 130866, September 16, 1998)
Failure to comply
Failure to comply with the following is sufficient
ground for the CA to dismiss the appeal:
(1) Payment of docket and lawful fees
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of petition
(5) Documents which should accompany the
petition (Rule 43, Sec. 7)
(5) APPEALS BY CERTIORARI TO THE
SUPREME COURT (RULE 45)
Where the judgment was rendered by the
Regional· Trial Court while in the exercise of its
original jurisdiction, but the appeal taken
therefrom raises or involves pure questions of
law, the same shall be elevated to the Supreme
Court by way of appeal by certiorari – also known
as petition for review on certiorari.
Rule 45 also applies in cases decided by the Court
of Appeals, the Sandiganbayan, the Court of Tax
Appeals when the issue raises purely questions of
law (Rule 45, Sec. 1).
The mode of appeal prescribed in this Rule shall
be applicable to both civil and criminal cases,
except in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment (Rule 45, Sec. 9).
259

Rule 45
Where to Supreme Court
file
When to Within fifteen (15) days from
file 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.
On motion duly filed and served,
with full payment of the docket
and other lawful fees and the
deposit for costs before the
expiration of the reglementary
period, the Supreme Court may
for justifiable reasons grant an
extension of thirty (30) days
only within which to file the
petition. (Rule 45, Sec. 2)
What to Verified petition for review on
file certiorari.
The petition may include an
application for a writ of
preliminary injunction or other
provisional remedies and shall
raise only questions of law which
must be distinctly set forth. The
petitioner may seek the same
provisional remedies by verified
motion filed in the same action
or proceeding at any time during
its pendency. (Rule 45, Sec. 1)
Requisites for resorting to Rule 45
They are the following:
(1) The petition does not only exclusively raise
questions of law, but also that it distinctly
sets forth those legal issues;
(2) The petition is filed within fifteen (15) days
of notice of the adverse ruling that impels it;
(3) Docket and other lawful fees are paid;
(4) Proper service of the petition is made;
(5) All matters specified under Section. 4, Rule
45, as to the contents of the petition are
indicated, stated, or otherwise contained in
it;
(6) It is manifestly meritorious;
(7) The petition is not prosecuted manifestly for
delay; and
(8) The questions raised in the petition are of
such substance as to warrant consideration.
(Kumar vs. People, G.R. No 247661, June
15, 2020)
Grounds for Outright Dismissal
(1) Failure of the petition to comply with the
requirements on form (Rule 45, Secs. 4-5)
• 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
(2) Patently without merit;
(3) Prosecuted manifestly for Delay; or
(4) Questions raised are too unsubstantial to
require consideration (Rule 45, Sec. 5).
260
SUMMARY OF MODES OF APPEALS

Ordinary Appeal Petition for Review Appeal by Certiorari

(Rule 40 and 41) (Rules 41, 42, and (Rule 45)
43)
How to By notice of appeal or record By filing a petition for By filing a petition for
appeal on appeal. review. review on certiorari.
Where to From the MTC and MCTC to From the RTC to the CA, From the RTC to the SC
appeal the RTC, and from the RTC to a decision of the RTC on a pure question of
the CA in decisions of the RTC rendered in the exercise law, a decision of the
rendered in the exercise of of its appellate RTC rendered in the
their respective original jurisdiction. exercise of its original
jurisdictions jurisdiction.
From the MTC and MCTC to
the CA for decisions rendered
by the said courts in the
exercise of their delegated
jurisdiction, in which case the
MTC and MCTC acts as RTC.
Nature of Matter of right Matter of appellate Matter of appellate
appeal court’s discretion court’s discretion
Payment of Requirement for perfection of Requirement for Requirement for
appellate appeal paid to the Clerk of perfection of appeal paid perfection of appeal to
docket and Court of the MTC/RTC. to the Clerk of Court of be paid to the Clerk of
other lawful the MTC/RTC. Court of the appellate
fees court.
Name of Appellant – party appealing Petitioner – party Petitioner – party
parties Appellee – adverse party appealing Respondent – appealing Respondent –
adverse party adverse party.

Perfection of If filing of the notice of appeal Upon timely filing of a Upon timely filing of the
appeal as to is required, upon approval of petition for review and petition for review on
appellant the record on appeal in due payment of certiorari and payment of
time. corresponding docket docket and other lawful
and other lawful fees. fees.
When court In appeal by notice of appeal – Upon the perfection of Upon the perfection of
whose upon perfection of the appeal the appeal filed in due the appeal filed in due
decision is filed in due time and the time to appeal by the time to appeal by the
being expiration of its time to appeal other parties. other parties.
appealed of the other parties.
loses In appeal by record on appeal
jurisdiction – upon approval of the records
on appeal filed in due time and
the expiration of its time to
appeal of the other parties.
As to Question of fact, question of Question of fact, Only question of law.
question law and question of law, question
which may be question of fact and law. of fact and law.
raised

261
 (6) REVIEW OF JUDGMENTS OR FINAL
ORDERS OF THE COMMISSION ON
AUDIT AND COMMISSION ON
ELECTIONS (RULE 64)
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
on relation to the provisions of Rule 64. (Rule 64,
Sec. 2)
NOTE: It bears to stress that the review by the
Supreme Court of the judgments, final orders or
resolutions of the Commission of Elections
contemplated under Rule 64 refers to those
rendered by the Commission on Elections en banc
and not by a division thereof.
The decisions, orders or resolutions of a division
of the Commission on Election must be reviewed
by the COMELEC en banc through a motion for
reconsideration before the final en banc decision
may be brought to the Supreme Court on
certiorari. The pre- requisite filing of a motion for
reconsideration is mandatory since the rule
requires that there be no appeal, or any plain,
speedy and adequate remedy in the ordinary
course of law. (Sahali vs. COMELEC, G.R. No.
201796, Jenuary 15, 2013)
Remedy for Judgment, Final Orders, or
Resolution of the COMELEC OR COA
Where to Supreme Court
file
When to The petition shall be filed
file within thirty (30) days from
notice of the judgment or final
order, or resolution sought to
be reviewed.
The filing of a motion for new
trial or reconsideration of said
judgment or final order or
resolution, if allowed under the
procedural rules of the
Commission concerned, shall
interrupt the period for the
filing of such petition. If the
motion is eventually denied,
the aggrieved party may file
the petition within the
remaining period reckoned
from notice of denial. Such
period shall not be less than
five (5) days in any
NOTE: the fresh 15-day period
rule does not apply under this
remedy
What to file Petition for Certiorari under
Rule 65
Issues to be raised
Since the remedy is to file a petition for certiorari
under Rule 65, The ground upon which the
petition should be filed is only for grave abuse of
discretion. Such abuse of discretion must be
grave and not merely ordinary. The petition
should never be based on questions of facts since
this mode of review is not to correct the findings
of the commission but to determine whether it
committed grave abuse of discretion amounting
to lack of or in excess of its jurisdiction. Thus, the
remedy is limited only to errors of jurisdiction
caused by grave abuse of discretion. (Salazar,
The Fundamentals of Civil Procedure, p. 440,
2021)
Grounds for Outright Dismissal by Court of
Appeals of the Petition (Motu Proprio
Dismissal)
(1) Failure of the petition to comply with the
requirements on form (Rule 64, Sec. 5);
• 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
(2) Patently without merit;
(3) Prosecuted manifestly for Delay; or,
(4) Questions raised are too unsubstantial to
require consideration (Rule 64, Sec. 6).
Effect of Filing
The filing of the petition for certiorari shall not
stay the execution of the judgment or final order
or resolution sought to be reviewed, unless the
262
Supreme Court shall direct otherwise upon such
terms as it may deem just. (Rule 64, Sec. 8).
(7) DISMISSAL, REINSTATEMENT, AND
WITHDRAWAL OF APPEAL
The Court of Appeals may dismiss an appeal
brought before it on any of the following grounds:
(1) Failure of the record on appeal to show on
its face that the appeal was taken within
the period fixed by the Rules.
(2) Failure to file the notice of appeal or the
record on appeal within the period
prescribed by the Rules;
(3) Failure of the appellant to pay the docket
and other lawful fees;
(4) Unauthorized alterations, omissions or
additions in the approved record on
appeal;
(5) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
the Rules;
(6) Absence of specific assignment of errors in
the appellant's brief, or of page references
to the record;
(7) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(8) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with the orders, circulars, or
directive of the court without justifiable
cause;
(9) The fact that the order or judgment
appealed from is not appealable. Such
dismissal may be done by the Court of
Appeals on its own or upon motion of the
appellee. (Salazar, The Fundamentals of
Civil Procedure, p. 287, 2021)
Reinstatement of an Appeal
Reinstatement of an appeal is deemed just and
proper when it will serve the greater interest of
justice. (Sacdalan v. Court of Appeals, G.R. No.
128967, May 20, 2004)
When the interest of substantial justice far
outweighs whatever negligence appellant and her
counsel might have committed, their appeal may
be reinstated. (Id.)
Withdrawal of an Appeal
An appeal may be withdrawn as a matter of right
before the filing of the appellee's brief.
Thereafter, the withdrawal is subject to the
discretion of the court. (Salazar, The
Fundamentals of Civil Procedure, p. 288, 2021)
3. PETITION FOR RELIEF FROM
JUDGMENT (RULE 38)
Nature of the Petition
A petition for relief from judgment is a remedy
provided by law to any person against whom a
decision, judgment or final order is entered
through fraud, accident, mistake, or
excusable negligence (FAMEN) (Duremdes vs.
Jorilla, G.R. No. 234491, February 26, 2020).
It is a legal remedy whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing
or was prevented from taking an appeal because
of fraud, accident, mistake, or excusable
negligence (FAMEN) (Quelnan vs. VHF Phils.,
G.R. No. 138500 September 16, 2005).
It is similar to a motion for new trial on the
ground of fraud, accident, mistake, or excusable
negligence, the difference being that the
motion for new trial under Rule 37 is filed before
the judgment becomes final, while a petition for
relief under Section 1, Rule 38 presupposes a
final judgment or order. (Riguera, Primer-
Reviewer on Remedial Law, Civil Procedure, Vol.
I, 2022 Edition, , pp. 606-607).
263
Rule 38 is a special remedy, allowed only in
exceptional cases
This remedy is equitable in character, allowed
only in exceptional cases where there is no
other available or adequate remedy
provided by law or the rules. When a party
has another remedy available to him, which may
either be a motion for new trial or appeal from an
adverse decision of the trial court, and he was not
prevented by fraud, accident, mistake, or
excusable negligence from filing such motion or
taking such appeal, he cannot avail of the remedy
of petition for relief. (Duremdes vs. Jorilla, G.R.
No. 234491, February 26, 2020)
Therefore, a party who has filed a timely motion
for a new trial cannot file a petition for relief from
judgement after his motion has been denied.
When available
It is available only after the decision or final order
from which relief is sought has become final and
executory, and there is no more right to appeal.
M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 265)
When not available
Relief under Rule 38 will not be granted to a party
who seeks to be relieved from the effects of the
judgment when the loss of the remedy of law was
due to his own negligence, or a mistaken mode
of procedure for that matter; otherwise, the
petition for relief will be tantamount to reviving
the right of appeal which has already been lost
either because of inexcusable negligence or due
to a mistake of procedure by counsel (Fukuzumi
vs. Sanritsu Great International Corp., G.R. No.
140630, August 12, 2004).
Two instances when Petition for Relief
from judgment may be availed of
(1) When a judgment or final order has attained
finality or any other proceeding is thereafter
taken against the petitioner in through
fraud, accident, mistake, or excusable
negligence (Rule 38, Sec. 1).
(2) When the petitioner has been prevented
from taking an appeal by fraud, accident,
mistake, or excusable negligence (Rule 38,
Sec. 2).
In the first instance, the petitioner seeks to set
aside the judgment, final order or the proceeding.
In the second instance, the petitioner prays that
his or her appeal be given due course. (Salazar,
The Fundamentals of Civil Procedure, p. 335,
2021)
Fraud as a ground
The fraud that is a ground for the filing of a
petition for relief is "extrinsic" fraud. One case
refers to extrinsic fraud as "that fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or defense.
Such fraud concerns not the judgment itself but
the manner in which it was obtained. For
example, the petition of a defending party would
be justified where the plaintiff deliberately caused
with the process server's connivance the service
of summons on the defendant at the wrong
address and, thus, succeeded in getting a
judgment by default against him." (AFP Mutual
Benefit Association, Inc. vs. Regional Trial Court,
Marikina City, Branch 193, G.R. No. 183906,
February 14, 2011).
Where to file
The petition shall be filed in the same court and
in the same case, not in another or higher court.
(Rule 38, Secs. 1 and 2)
264
 entry, so it is included in
When to file “proceeding taken”.
M. De Leon, Remedial Law Reviewer-Primer,
(1) Within sixty (60) days after the 2021 Edition, p. 267)
petitioner learns of the judgment, final
order, or other proceeding to be set aside, Requisites for filing
AND
(2) Not more than six (6) months after such For the filing of a petition for relief to be proper,
judgment or final order was entered, or such
petitioner must satisfy the following
proceeding was taken (Rule 38, Sec. 3).
requirements:
Double period under Rule 38 is
jurisdictional (1) he or she has no adequate remedy available
to him, which is either a motion for new trial
or appeal from adverse decisions of the lower
The double period provided under Section 3, Rule court, and he was prevented by fraud,
38, is jurisdictional and must be strictly accident, mistake or excusable negligence
complied with. (Duremdes vs. Jorilla, G.R. No. from filing such motion or taking the appeal;
234491, February 26, 2020) and
(2) he or she must comply with the double period
They must be taken as absolutely fixed, set forth under Section 3, Rule 38 of the
Rules of Court. (Duremdes vs. Jorilla, G.R.
inextendible, and uninterrupted. (Salazar, The
No. 234491, February 26, 2020)
Fundamentals of Civil Procedure, p. 336, 2021)
Contents of the Petition
Reckoning point of the double period
The petition must be:
60-day period 6-month period
Ordinarily counted Counted from the time (1) Verified;
from the date of judgment or final order is (2) Accompanied with affidavits showing the
service of entered (meaning entry fraud, accident, mistake, or excusable
judgment or final or recording thereof by negligence relied upon, and
order the clerk of court in the (3) The facts constituting the petitioner's good
book of entries of and substantial cause of action or defense, as
judgment after the same the case may be (Rule 38, Sec. 3).
has become final and
executory), or
Answer to the Petition
proceeding taken.
If there is no If the clerk of court failed
indication of to enter judgment or If the petition is sufficient in form and substance
receipt of service final order in the book of to justify relief, the court in which it is filed, shall
by petitioner or his entries, the 6-month issue an order requiring the adverse parties to
counsel, it is his period is counted from answer the same within fifteen (15) days from
duty to show that the issuance of writ of
the receipt thereof. (Rule 38, Sec. 4)
he received it execution, as the “other
within the 60-day proceeding taken”
period. against the petitioner. A The order shall be served in such manner as the
judgment on court may direct, together with copies of the
compromise has no

265
petition and the accompanying affidavits. (Rule
38, Sec. 4) 4. ANNULMENT OF JUDGMENT (RULE 47)

Effect as to grant Rule 47 shall govern the annulment by the Court

After the filing of the answer or the expiration of
the period therefore, the court shall hear the
petition (Rule 38, Sec. 6):
(a) If the allegations are not true, the petition
shall be dismissed.
(b) If the allegations are true, it shall set aside
the judgment or final order or other
proceeding complained of upon such terms
as may be just and the case shall stand as if
such judgment, final order or other
proceeding had never been rendered, issued
or taken. The court shall then proceed to hear
and determine the case as if a timely motion
for a new trial or reconsideration had been
granted by it (Rule 38, Sec. 3).
Note: Where the denial of an appeal is set aside,
the lower court shall be required to give due
course to the appeal and to elevate the record of
the appealed case as if a timely and proper
appeal had been made (Rule 38, Sec. 7).
Preliminary injunction pending
proceedings
of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new
trial, appeal, petition for relief (Rule 38) or other
appropriate remedies are no longer available
through no fault of the petitioner (Riguera, Civil
Procedure Volume I, 7th 2022 Ed., p. 776).
It does not apply to criminal cases, nor does it
apply to judgments, final orders or resolutions of
other courts, tribunal or body. (Salazar, The
Fundamentals of Civil Procedure, p. 340, 2021)
Nature of the petition
A petition for annulment of judgment is a remedy
in equity so exceptional in nature that it may be
availed of only when other remedies are
wanting, and only if the judgment, final order,
or final resolution sought to be annulled was
rendered by a court lacking jurisdiction, or
through extrinsic fraud. (Spouses Hofer vs. Yu,
G.R. No. 231452, July 1, 2020)

Annulment of a judgment is an original action,

The court in which the petition is filed, may grant
which is separate and distinct and
such preliminary injunction as may be necessary
independent of the case where the judgment
for the preservation of the rights of the parties,
sought to be annulled is rendered. It is not a
upon the filing by the petitioner of a bond in favor
continuation or progression of the same case.
of the adverse party, conditioned that if the
Thus, regardless of the nature of the original
petition is dismissed or the petitioner fails on the
action, in the decision sought to be annulled, be
trial of the case upon its merits, he will pay the
it in personam, in rem or quasi in rem, the
adverse party all damages and costs that may be
respondent should be duly notified of the petition
awarded to him by reason of the issuance of such
seeking to annul the court's decision over which
injunction or the other proceedings following the
the respondent has a direct or indirect interest
petition; but such injunction shall not operate to
(Frias vs. Alcayde, G.R. No. 194262, February 28,
discharge or extinguish any lien which the
2018).
adverse party may have acquired upon the
property of the petitioner. (Rule 38, Sec. 5)

266
Annulment of judgment is an equitable relief not
because a party-litigant thereby gains another
opportunity to reopen the already-final judgment
but because a party-litigant is enabled to be
discharged from the burden of being bound by a
judgment that was an absolute nullity to begin
with. (Calubad v. Aceron, G.R. No. 188029,
September 2, 2020, J. Hernando)
An action for annulment of judgment is an
independent action where the judgment or
resolution sought to be annulled is rendered and
is not an appeal of the judgment or resolution
therein. (ibid.)
Purpose
The purpose of such action is to have the final
and executory judgment set aside so that there
will be a renewal of litigation (Sps. Teaño vs.
The Municipality of Navotas, G.R. No. 205814,
February 15, 2016).
Grounds
An action for annulment of judgment under Rule
47 may be based only on the following grounds:
(a) Extrinsic fraud
(b) Lack of jurisdiction. (Rule 47, Sec. 2)
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)
Additional ground
Jurisprudence also recognizes denial of due
process as an additional ground. Where a court
approved a commissioner's project of partition
when only three of the nine heirs were notified of
the meeting to discuss the project, the aggrieved
heirs could resort to Rule 47 in order to nullify the
court's order of approval. (Benatiro vs. Heirs of
Cuyos, G.R. NO. 161220, July 30, 2008; Thomas
vs. Trono, G.R. No. 241032 (Resolution), March
15, 2021)
Due process requires that those with interest to
the subject matter in litigation be notified and be
afforded an opportunity to defend their interests.
As guardians of constitutional rights, courts
cannot be expected to deprive persons of their
rights to due process while at the same time be
considered as acting within their jurisdiction.
Where the denial of the fundamental right of due
process is apparent, a decision rendered in
disregard of that right is void for lack of
jurisdiction. (Thomas vs. Trono, G.R. No. 241032
(Resolution), March 15, 2021)
Extrinsic Fraud
It annulment refers to any fraudulent act of the
prevailing party in litigation committed outside
the trial of the case where the defeated party
is prevented from fully exhibiting his side by
fraud or deception practiced on him by his
opponents like:
(a) by keeping him away from court;
(b) by giving him false promise of a
compromise; or
(c) where an attorney fraudulently or without
authority connives at his defeat. However,
mistake or gross negligence of a lawyer does
not amount to extrinsic fraud that would
warrant a grant for annulment (Cagayan
Economic Zone Authority vs. Meridien Vista
Gaming Corporation, G.R. No. 194962,
January 27, 2016; Sibal vs. Buquel, G.R. No.
197825, January 11, 2016).
It also refers to acts where the losing party never
had knowledge of the suit being kept in ignorance
by the acts of the other party (Baclaran Marketing
Corporation vs. Nieva and Sibulo, Jr., G.R. No.
189881, April 19, 2017).
267

Note: Fraud is considered intrinsic when the
other party was either present at the trial or was
a participant in the proceedings when such
instrument or testimony was presented in court
(Castro vs. Gregorio, G.R. No. 188801, October
15, 2014). The use of forged instruments or
perjured testimonies during trial is not an
extrinsic fraud. Such evidence does not preclude
a party's participation in the trial (Bobis vs. Court
of Appeals, G.R. No. 113796, December 14,
2000; Strait Times vs. Court of Appeals, G.R. No.
126673, August 28, 1998).
Lack of Jurisdiction
Lack of jurisdiction, as a ground for annulment of
judgment, refers to either lack of jurisdiction
over the person of the defending party or
over the subject matter of the claim. It does
not refer to cases where the court has personal
or subject- matter jurisdiction but acted beyond
such jurisdiction (Sps. Teaño vs. The Municipality
of Navotas, G.R. No. 205814, February 15, 2016).
Where the court has jurisdiction over the
defendant and over the subject matter of the
case, its decision will not be voided on the ground
of absence of jurisdiction (Republic vs. “G”
Holdings, Inc., G.R. No. 141241, November 22,
2005; Sebastian v. Cruz, G.R. No. 220940, March
20, 2017).
The petitioner must show not a mere grave abuse
of discretion but an absolute lack of
jurisdiction. The concept of lack of jurisdiction,
as a ground to annul a judgment, does not
embrace abuse of discretion (Republic vs. “G”
Holdings, Inc., G.R. No. 141241, November 22,
2005). A claim for grave abuse of discretion will
support a petition for certiorari under Rule 65 but
it will not support an action for annulment of a
judgment (Riano, Civil Procedure: The Bar
Lecture Series, Vol. I, 2022 Edition, p. 648)
When to file
Ground Period to File
Extrinsic Within four (4) years from its
Fraud discovery (Rule 47, Sec. 3)
Lack of Before it is barred by laches or
Jurisdiction estoppel (Rule 47, Sec. 3)
Where to file
An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional
Trial Court having jurisdiction over the former.
(Rule 47, Sec. 10)
An action to annul a judgment or final order of a
Regional Trial Court shall be filed in the Court of
Appeals having jurisdiction over the former. (Rule
47, Sec. 1)
The action is commenced by the filing of a
verified petition with the proper court. If it is the
judgment or final order of a Regional Trial Court
which is sought to be annulled, then the action
shall be filed with the Court of Appeals (Rule 47,
Sec. 1).
If it is that of a Municipal Trial Court, the verified
petition shall be filed with the Regional Trial Court
having jurisdiction over the former (Rule 47, Sec.
10).
Form and Contents of the Petition
(1) Verified petition, alleging therein:
(a) With particularity the facts and the law
relied upon;
(b) Petitioner’s good and substantial cause of
action or defense
268
(2) In 7 clearly legible copies, together with
sufficient copies corresponding to the Note: Prima facie determination is not available
number of respondents; in annulment of judgments or final orders of
MTCs before the RTC (Rule 47, Sec. 10).
(3) Certified true copy of the judgment or final
order or resolution shall be attached to the
original copy of the petition intended for the Effect of Judgment of Annulment
court and indicated as such by the petitioner;
Basis of
Effect
(4) Affidavits of witnesses or documents Annulment
supporting the cause of action or defense; Extrinsic Fraud The court may on motion
and order the trial court to try
the case as if a timely
(5) Certificate of non-forum shopping (Rule 47, motion for new trial had
Sec. 3) been granted therein (Rule
47, Sec. 7).
Non-party may file petition for annulment
Lack of A judgment of annulment
of judgment
Jurisdiction shall set aside the
questioned judgment or
A person who is not a party to the judgment may final order or resolution
sue for its annulment provided that he can prove: and render the same null
and void, without prejudice
(a) The judgment was obtained through fraud to the original action being
or collusion, and refiled in the proper court
(b) He would be adversely affected thereby (Rule 47, Sec. 7).
(Alaban vs. CA, G.R. No. 156021, September
23, 2005) Difference: When it is based on extrinsic fraud,
the original judgment was not tainted by
Action of the Court jurisdictional defects but by the deception which
then resulted in the prejudicial.
(a) Should the court find no substantial merit
in the petition, the same may be dismissed Effect on prescriptive period for refiling of
outright with specific reasons for such the original action
dismissal.
When From the filing of said
(b) Should prima facie merit be found in the suspended original action until the
petition, the same shall be given due finality of the judgment of
course and summons shall be served on the annulment
respondent (Rule 47, Sec. 5). When not Where the extrinsic fraud
suspended is attributable to the
Procedure plaintiff in the original
action (Rule 47, Sec. 8)
The procedure in ordinary civil cases shall be
Petition for Relief from Judgment vs
observed. Should a trial be necessary, the
Annulment of Judgment
reception of the evidence may be referred to a
member of the court or a judge of a Regional Trial
Court. (Rule 47, Sec. 6)

269
 Petition for Relief Annulment of said action. (Rivera vs. Velasco, G.R. No. 242837,
from Judgment Judgment October 5, 2022)
(Rule 38) (Rule 47)
When a judgment or May be based only on Collateral Attack Direct Attack
final order has the following
Done through an The object of an
attained finality or any grounds:
action which asks for action is to annul or
other proceeding is (a) Extrinsic fraud
a relief other than the set aside such
thereafter taken (b) Lack of
declaration of the judgment, or enjoin
against the petitioner jurisdiction.
nullity of the its enforcement
in through fraud, (Rule 47, Sec. 2)
judgment but (Hortizuela vs.
accident, mistake, or
requires such a Tagufa, G.R. No.
excusable negligence
determination if the 205867, February 23,
(Rule 38, Sec. 1).
issues raised are to 2015).
be definitively
When the petitioner
settled. (Imperial vs.
has been prevented
Aermes, G.R. No.
from taking an appeal
178842, January 30,
by fraud, accident,
2017)
mistake, or excusable
Proper only when the
negligence (Rule 38,
judgment, on its
Sec. 2).
face, is null and void,
When to file When to file as where it is patent
(1) Within sixty (60) (1) Extrinsic Fraud - that the court which
days after the Within four (4) rendered said
petitioner learns years from its
judgment has no
of the judgment, discovery (Rule jurisdiction. (Rivera
final order, or 47, Sec. 3) vs. Velasco, G.R. No.
other proceeding (2) Lack of 242837, October 5,
to be set aside, Jurisdiction - 2022)
AND Before it is
(2) Not more than barred by laches
six (6) months or estoppel (Rule Ways of attacking the validity of a
after such 47, Sec. 3) judgment or order of the court, which has
judgment or final become final and executory
order was
entered, or such How When to avail
proceeding was By a direct action or To annul and enjoin
taken (Rule 38, proceeding to annul enforcement of the
Sec. 3). the same judgment, where the
alleged defect is not
5. COLLATERAL ATTACK ON JUDGMENTS apparent on its face
or from the recitals
Definition of collateral attack contained in the
judgment (Rule 47).
A collateral/indirect attack is made when, in
By direct action, as The collateral attack
another action to obtain a different relief, an
certiorari, or by must be against a
attack on the judgment is made as an incident in collateral attack in challenged judgment
which is void upon its

270
 case of apparent face as where it is Oro Coliseum vs. Court of Appeals, G.R. No.
nullity patent that the court 129713, December 15, 1999; (Riano, Civil
which rendered said Procedure: The Bar Lecture Series, Vol. I, 2022
judgment has no Edition, p. 704).
jurisdiction or that the
nullity of the
judgment is apparent It is the fruit and end of the suit, and is the life of
from its own recitals. the law (Ayo vs. Violago-Isnani, A.M. No. RTJ-99-
1445, June 21, 1999; ibid)
By a Petition for Relief Must be taken in the
under Rule 38 same action or Part of Judgment to be Executed
proceeding in which
the judgment or order
(1) The dispositive portion (also called “fallo”) of
was entered
the judgment is that part which is subject to
(1 Regalado, 2010 Ed., 454-456)].
execution under Rule 39 of the Rules of
Court (Riano, Civil Procedure (The Bar
U. EXECUTION, SATISFACTION, AND Lecture Series), Vol. I, p. 704, 2022).
EFFECT OF JUDGMENTS (RULE 39) (2) Jurisprudence considers this portion of the
judgment as that which finally vests rights
Execution has been defined as a remedy upon the parties, sets conditions for the
afforded by law for the enforcement of a judgme exercise of those rights, and imposes the
corresponding duties and obligations.
nt, its object being to obtain satisfaction
Hence, if there is a conflict between the
the judgment on which the writ is issued. dispositive portion of the decision and the
body thereof, the dispositive portion controls
Being a remedy, it is thus optional on the winning irrespective of what appears in the body
litigant and may avail it in case the judgment (Globe Telecom, Inc. vs. Florendo-Flores,
cannot be enforced. In other words, a party G.R. No. 150092, September 27, 2002).
litigant may choose to have a judgment enforced
Difference Between Finality of Judgment
and if for some reason he cannot do so, he may
for Purposes of Appeal and for Purposes of
decide to avail of the coercive measure of
Execution
execution in order for the judgment to be
realized. A writ of execution was never meant to
be a prerequisite before a judgment may be For Purposes of For Purposes of
Appeal Execution
enforced. (Confederation of Coconut Farmers
Organizations of the Philippines, Inc. v. Aquino A "final" judgment or Execution of a final
III, G.R. No. 217965, August 8, 2017) order is one that finally and executory
disposes of a case, judgment is a
Writ of Execution is a judicial writ issued to an leaving nothing more matter of right. The
officer authorizing and requiring him to execute to be done by the Court issuance of which is
the judgment of the court (Pamantasan ng in respect thereto. a ministerial duty of
the court. A
Lungsod ng Maynila vs. IAC, G.R. No. L-65439,
Examples include: judgment is final and
July 31, 1986) executory when the
(1) an adjudication on law/rules do not
Its object being is to obtain satisfaction of the merits which, provide for an
judgment on which writ is issued (Cagayan de on the basis of the appeal or the period

271
 evidence presented to appeal has lapsed
to appeal if no appeal
at the trial, declares without an appeal
categorically what being taken, upon During that period, is perfected.
the rights and which execution execution of the
obligations of the shall issue as a judgment cannot be
parties are and matter of right yet demanded by the In such a situation,
which party is in the according to Sec. 1, winning party as a the prevailing party is
right; or Rule 39 (Calilung vs. matter of right. entitled to a writ of
(2) a judgment or Paramount
execution, and
order that Insurance
dismisses an action Corporation, G.R. issuance thereof is a
on the ground, for No. 195641, ministerial duty of the
instance, of res February 3, 2016). court.
judicata or
prescription. (Carniyan vs. Home Guaranty, G.R. No. 228516,
August 14, 2019)
Nothing more remains
to be done by the Court When Execution shall issue
except to await the
parties' next move Execution as a Matter of Right
(which among others,
may consist of the filing
of a motion for new General Execution of a judgment or final
trial or reconsideration, Rule order shall issue as a matter of
or the taking of an right, upon motion of the
appeal). (Denso vs. prevailing party in the court of
IAC Court, G.R. No. origin, when no appeal is taken
75000, February 27, therefrom or upon the lapse of
1987) the period to do so. (Salazar,
The Fundamentals of Civil
Procedure, p. 295, 2021)
Difference between final judgment and
Exceptions The following are
final and executory judgments immediately executory
without the expiration of the
Final Judgment Final and period to appeal:
(a) Judgments in actions for
Executory
injunction,
Judgments receivership,
accounting and
Final judgments finally Judgments become support, and such other
dispose of, adjudicate, final and executory by judgments, unless
or determine the operation of law. otherwise order by the
rights of the parties. court (Sec. 1, Rule 39).
(b) Judgments in an action for
forcible entry or
But such judgments Finality of judgment
unlawful detainer
are not yet final and becomes a fact upon rendered against the
executory pending the the lapse of the defendant (Sec. 19, Rule
period of appeal. reglementary period 39).

272
 (c) Decisions of the Regional • the writ has been improvidently issued,
Trial Court in civil cases or
governed by the Rules on • the writ was issued without authority, or
Summary Procedure • the writ was issued against the wrong
(Sec. 21, Rules on party.
Summary Procedure).
(d) The decision of the Labor How execution as a matter of right is done
Arbiter reinstating a
dismissed or separated
(a) If no appeal is perfected upon the expiration
employee (Labor Code,
of the period to appeal therefrom, on motion.
Art. 229).
(e) Awards, judgment, final
(b) If the appeal has been duly perfected and
order or resolution of
finally resolved, the execution may
quasi-judicial bodies
• Be applied for in the court of origin,
appealable to the Court of
• On motion of the judgment obligee,
Appeals (Feria and Noche,
• Submitting certified true copies of the
Civil Procedure Annotated,
judgment or judgments or final order or
2013 ed., Vol. 2, p. 127).
orders sought to be enforced and of the
(f) Discretionary execution
entry thereof, with notice to the adverse
(Rule 39, Sec. 2).
party (Rule 39, Sec. 1).
Note: Exception to No. 1 above: The appellate
The appellate court may, on motion in the same
court in its discretion may make an order
case, when the interest of justice so requires,
suspending, modifying, restoring or granting
direct the court of origin to issue the writ of
the injunction, receivership, accounting, or
execution. (Rule 39, Sec. 1)
award of support. The stay of execution shall
be upon such terms as to bond or otherwise as
Existence of a supervening event is an
may be considered proper for the security or
exception to execution as a matter of right
protection of the rights of the adverse party.
(Rule 39, Sec. 1)
A supervening event is a fact which transpires or
a new circumstance which develops after a
Other instances when a writ may be
judgment has become final and executory. This
quashed or stayed
includes matters which the parties were unaware
of prior to or during trial because they were not
(a) Payment or satisfaction of the judgment
yet in existence at that time.
debt constitutes a ground for the quashal of
a writ of execution although the sum given
by the debtor was less than the amount of To be sufficient to stay or stop the execution, a
the judgment debt if the judgment creditor supervening event must create a substantial
accepted the reduced amount as full change in the rights or relations of the parties
satisfaction of the money judgment. In such which would render execution of a final judgment
case, it is justified to recall the writ of
unjust, impossible or inequitable making it
execution;
(b) A writ of execution may also be set aside or imperative to stay immediate execution in the
quashed when it appears from the interest of justice. (Salazar, The Fundamentals of
circumstances of the case that: Civil Procedure, p. 295, 2021, citing Remington
• the writ is defective in substance; or

273
Industrial Sales Corp. vs. Maricalum Mining Corp.,
G.R. No. 193945, June 22, 2015)
Issuance of the writ of execution
General Rule: The issuance of the writ of
execution is the ministerial duty of the court.
Thus, it is compellable by Mandamus.
Exceptions: When the court may refuse
execution
(a) When the judgment has already been
executed by the voluntary compliance
thereof by the parties;
(b) When a judgment has been novated by the
parties;
(c) When a petition for review is filed and
preliminary injunction is granted; Also, when
execution of the judgment has been
enjoined by a higher court;
(d) When the judgment sought to be executed
is conditional or incomplete;
(e) When facts and circumstances transpire
which would render execution inequitable or
unjust;
(f) When execution is sought more than five (5)
years from its entry without it having been
revived;
(g) When execution is sought against property
exempt from execution;
(h) When refusal to execute the judgment has
become imperative in the higher interest of
justice (Riano, Civil : The Bar Lecture Series,
Vol. I, 2022 Edition, p. 708-709).
Note: A compromise agreement once approved
by final order of the court has the force of res
judicata between the parties and should not be
disturbed except for vices of consent or forgery.
Hence, a decision on a compromise agreement is
final and executory; it has the force of law and is
conclusive between the parties. It transcends its
identity as a mere contract binding only upon the
parties thereto, as it becomes a judgment that is
subject to execution in accordance with the Rules
(Sps. Martir vs. Sps. Verano, G.R. No. 170395;
July 28, 2006).
Discretionary Execution
The issuance of a writ of execution is
discretionary on the part of the court when it is
for the:
(a) Execution of a judgment or final order
pending appeal, or
(b) Execution of several, separate, or partial
judgments (Rule 39, Sec. 2).
Where motion filed
(a) In the trial court – while it has jurisdiction
over the case and is in possession of the
original record or record on appeal
(b) In the appellate court – after the trial
court has lost jurisdiction (Rule 39, Sec. 2).
Requisites for discretionary execution
Under Sec. 2 of Rule 39, for the trial court to allow
an execution even before the expiration of the
period for appeal or pending appeal, there must
be compliance of the following requisites:
(a) A motion filed by the prevailing party with
notice to the adverse party;
(b) Hearing of the motion for discretionary
execution;
(c) The motion must be filed in the trial court
while it has jurisdiction over the case and is
in possession of either the original record or
the record on appeal;
(d) There must be good reasons to justify the
discretionary execution; and
(e) The good reasons must be stated in a special
order.
274
Good reasons
Good reason does not necessarily mean
unassailable and flawless basis but at the very
least, it must be on solid footing. Dire financial
conditions of the plaintiffs supported by mere
self-serving statements as "good reason" for the
issuance of a writ of execution pending appeal
does not stand on solid footing. It does not even
stand on its own (NPC vs. Adiong, A.M No. RTJ-
07-2060, July 27, 2011).
Examples of good reasons:
(a) The goods subject of the judgment stands to
perish or deteriorate during the pendency of
the appeal (Yasuda vs. CA, G.R. No. 112569,
April 12, 2000).
(b) The award of actual damages is for an
amount fixed and certain, but not an award
for moral and exemplary damages (Radio
Communications Inc. vs. Lantin, G.R. No. L-
59311, January 31, 1985).
(c) Insolvency of a defeated party (Hacienda
Navarro vs. Labrador, G.R. No. L-45912, May
24, 1938).
(d) The prevailing party is of advanced age and
in a precarious state of health and the
obligation in the judgment is non
transmissible, being for support (David vs.
CA, G.R. No. 126556. July 28, 1997).
(e) Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation (Lao vs. Mencias, G.R. No. L-
23554, November 25, 1967).
(f) That the appeal was being taken for the
purpose of delay. (Rodriguez vs. CA, G.R.
No. L-12534, May 23, 1959)
Stay of discretionary execution
General An appeal perfected in due time
Rule stays the execution of a
judgment (Riano, Civil
Procedure : The Bar Lecture
Series, Vol. I, 2022 Edition, p.
709-710).
Exceptions There are, however,
judgments, the execution of
which is not stayed by a
pending appeal. These
judgments may be classified
into two general categories,
namely:
(a) Those judgments which by
express provision of the
rules are immediately
executory and are not
stayed by an appeal (Rule
39, Sec. 4).
(b) Those judgments that
have become the object of
discretionary execution
(Rule 39, Sec. 2).
Discretionary execution issued may be stayed
upon approval by the proper court of a sufficient
supersedeas bond –
(a) Filed by the party against whom it is
directed, and
(b) Conditioned upon the performance of the
judgment or order allowed to be executed in
case it shall be finally sustained in whole or
in part.
The bond may be proceeded against on motion
with notice to the surety (Rule 39, Sec. 3).
Supersedeas bond
General Rule: The filing of a supersedeas bond
is sufficient to stay the enforcement of a
discretionary execution (Rule 39, Sec. 3).
Exception: Where the needs of the prevailing
party are urgent, the Court can order immediate
execution despite such supersedeas bond
(Regalado, Civil Procedure Volume I, 2010 Ed., p.
466).
If judgment is reversed totally or partially, or
annulled, on appeal or otherwise The trial court
may, on motion, issue such orders of restitution
275
or reparation of damages as equity and justice
may warrant under the circumstances (Rule 39,
Sec. 5).
Restitution - The property itself must be returned
to the judgment debtor, if the same is still in the
possession of the judgment creditor, plus
compensation to the former for the deprivation
and use of the property (Regalado, Civil
Procedure Volume I, 2010 Ed., p. 467).
Remedy against discretionary execution
The remedy is certiorari by Rule 65.
Note: The fact that the losing party has also
appealed from the judgment does not bar
certiorari proceedings as the appeal could not be
an adequate remedy from such premature
execution (Jaca vs. Davao Lumber Co., G.R. No.
L-25771, March 29, 1982).
Remedy where the judgment subject to
discretionary execution isreversed or
annuled
The trial court may, on motion, issue such orders
of restitution or reparation of damages as equity
and justice may warrant under the circumstances
(Rule 39, Sec. 5)
Duration of the writ of execution
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 because
within that period, the writ may be enforced by
motion (Rule 39, Sec. 6).
Against whom issued
General Rule: Only real parties in interest in an
action are bound by judgment rendered therein
and by the writs of execution (Bayani vs. Yu, G.R.
No. 203076-77, July 10, 2019).
Exceptions: There are certain cases where the
writ may be issued against non-parties
(a) One who is privy to judgment debtor can be
reached by an order of execution and writ of
demolition (Vda. De Medina vs. Cruz, G.R.
No. L-39272, May 4, 1988).
(b) Issued against one who, not being originally
a blueparty to the case, submits his interest
to the court for consideration in the same
case and invites adjudication regarding said
interest (Jose vs. Blue, G.R. No. L-28646
November 29, 1971).
(c) Where non-parties voluntarily signed the
compromise agreement or voluntarily
appeared before court (Rodriguez vs.
Alikpala, G.R. No. L-38314, June 25, 1974).
Contents of a Writ of Execution
The writ of execution is issued in the name of the
Republic of the Philippines and shall state:
(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 should conform to the
dispositive portion of the decision to be executed
(Ex-Bataan Veterans Security Agency Inc vs.
NLRC, G.R. No. 121428, November 29, 1995)
Modes of execution
There are two modes of executing a final and
executory judgment, to wit:
276

1) Execution If the enforcement of the
by motion judgment is sought
within five years from
the date of its entry
2) Execution If the five-year period has
by elapsed and before it is
independent barred by the statute of
action limitations
(Rule 39, Sec. 6)
Suspension of the Five (5) Year Period for
Execution by Motion
While the general rule is that a judgment can no
longer be affected by mere motion after five (5)
years from the date of entry, delays in the
execution of the judgment that are due to the
fault of the debtor suspends the running of
the prescriptive period for the enforcement of the
judgment (Villareal vs. MWSS, G.R. No. 232202.
February 28, 2018).
Execution by Independent Action (Revival
of judgment)
An action for revival of judgment is an action with
the exclusive purpose of enforcing a judgment
which could no longer be enforced by a motion.
(Pineda v. Miranda, G.R. No. 204997, August 4,
2021, J. Hernando)
It is a procedural means of securing the execution
of a previous judgment which has become
dormant after the passage of 5 years without it
being executed upon motion of the prevailing
party (Saligumba vs. Palanog, G.R. No. 143365,
December 4, 2008)
The revival action is a new action altogether; it is
different and distinct from the original judgment
sought to be revived or enforced. It is a new and
independent action, wherein the cause of
action is the decision itself and not the
merits of the action upon which the judgment
sought to be enforced is rendered. The Court
agrees with the CA in citing Saligumba v.
Palanog, especially when it ruled that 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. (Pineda v. Miranda, G.R.
No. 204997, August 4, 2021, J. Hernando)
A revived judgment is deemed a new judgment,
separate and distinct from the original judgment.
The action to revive a judgment must be filed
within 10 years from the date the judgment
became final because an action to enforce a
judgment prescribes in 10 years from the finality
of the judgment (NCC, Art. 1144 in relation to Art.
1152).
The prescriptive period is to run from the date of
entry of the judgment (Olongapo City vs. Subic
Water and Sewerage Co., Inc., G.R No. 171626,
August 6, 2014).
Venue of an action to revive a judgment
The action for revival of judgment need not
necessarily be filed with the same court that
decided the case; it shall be filed in the Regional
Trial Court as one incapable of pecuniary
estimation (Anama vs. Citibank, G.R. No. 192048.
December 13, 2017).
The venue depends on whether the present
action for revival of judgment is a real action or a
personal action. If the action for revival of
judgment affects title to or possession of real
property, or interest therein, then it is a real
action that must be filed with the court of the
place where the real property is located. If such
action does not fall under the category of real
actions, it is then a personal action that may be
filed with the court of the place where the plaintiff
277
or defendant resides (Infante vs. Aran, G.R. NO.
156956, August 24, 2007).
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 (Rule 39,
Sec. 2[b])
(b) AFTER levy:
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 (Rule 39, Sec. 2[b])
Execution will be issued if the action is for the
recovery of real or personal property or any
lien thereon.
Execution will not be issue if the action is for
the recovery of a sum of money. The
judgment obligee must file a claim against
the estate of the judgment obligor under Rule
86 (Rule 39, Section 7).
Execution will continue even in money
judgment. The property may be sold for the
satisfaction of the judgment obligation, and
the officer making the sale shall account to
the corresponding executor or administrator
for any surplus in his hands (Rule 39, Section
7).

Effect of death of a party to execution

Execution in case of death of party

Party who Effect
died
(a) In case of the death of the judgment obligee, Judgment Will not prevent the execution
upon the application of his executor or obligee of judgment.
administrator, or successor in interest;
(b) In case of the death of the judgment obligor, Execution will be issued upon
against his executor or administrator or the application of the
successor in interest, if the judgment be for executor, administrator, or
the recovery of real or personal property, or successor in interest.
the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, Judgment Death of the Will not prevent
after execution is actually levied upon any of obligor execution of judgment
his property, the same may be sold for the
satisfaction of the judgment obligation, and Execution shall be issued
the officer making the sale shall account to against his executor,
the corresponding executor or administrator administrator, or successor in
for any surplus in his hands. (Rule 39, Sec. interest (Rule 39, Sec. 7).
7).

In case of death of judgment obligor: When a Writ of Possession may be issued

(a) BEFORE levy: Writ of Possession may be issued under the

following instances:
(1) In Land registration proceedings;

278
(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)
Return of writ of execution
(1) Judgment satisfied within 30 days
The writ of execution shall be returnable to
the court issuing it immediately after the
judgment has been satisfied in part or in full
(Rule 39, Sec. 14).
(2) Judgment NOT satisfied within 30 days
(a) The officer shall report to the court and
state the reason therefore.
(b) The officer shall make a report to the
court every 30 days on the proceedings
taken thereon until the judgment is
satisfied in full, or its effectivity expires.
(c) The returns or periodic reports shall set
forth the whole of the proceedings taken,
and shall be filed with the court and
copies thereof promptly furnished the
parties (Rule 39, Sec. 14).
The writ continues to be effective during
such period of time that the judgment
may be enforced by motion within five
(5) years (Rule 39, Sec. 6).
Report on the Action Taken on a Writ of
Execution
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)
Effect of a Decision Left Unexecuted or
Delayed Indefinitely
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).
Execution of Judgments For Money
If the award is for payment of money, execution
is enforced by:
(a) Immediate payment on demand; or
(b) Satisfaction by levy; or
(c) Garnishment of debts and credits (Rule 39,
Sec. 9).
Note: Levy can only be made under Sec. 9 of
Rule 39.
Immediate Payment On Demand
Procedure if the judgment obligee or his
authorized representative is not present to
receive payment
279
(a) The judgment obligor shall deliver the
aforesaid payment to the executing sheriff.
Note: In no case shall the executing sheriff
demand that any payment by check be made
payable to him.
(b) The executing sheriff shall turn over all the
amounts coming into his possession within
the same day to the Clerk of Court of the
court that issued the writ, or if the same is
not practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the RTC of the locality.
(c) The Clerk of Court shall thereafter arrange for
the remittance of the deposit to the account
of the court that issued the writ whose Clerk
of Court shall then deliver said payment to
the judgment obligee in satisfaction of the
judgment.
(d) The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall
be retained by the COC for disposition as
provided by law (Rule 39, Sec. 9[a])
Satisfaction by Levy
Levy is the act whereby:
(a) A sheriff/officer sets apart or appropriates;
(b) For the purpose of satisfying the command of
the writ;
(c) A part or the whole of the judgment debtor’s
property. (Fiestan vs. CA, G.R. No. 81552,
May 28, 1990).
Condition before resort to satisfaction by
levy
Resorted to only if the judgment obligor cannot
pay all or part of the obligation in cash, certified
bank check or other mode of payment acceptable
to the judgment obligee (Rule 39, Sec. 9[b])
Procedure
(a) The officer shall levy upon the properties of
the judgment obligor of every kind and
nature whatsoever which may be disposed
of for value and not otherwise exempt from
execution.
(b) The officer shall give the judgment obligor
the option to choose which property or part
thereof may be levied upon, sufficient to
satisfy the judgment.
If the judgment obligor does not exercise the
option, the officer shall first levy on the personal
properties, if any, and then on the real properties
if the personal properties are insufficient to
answer for the judgment (Rule 39, Sec. 9[b])
Note: The sheriff shall sell only a sufficient portion
of the personal or real property of the judgment
obligor which has been levied upon and only so
much of the personal or real property as is
sufficient to satisfy the judgment and lawful fees
(Rule 39, Sec. 9[b])
How the levy is done
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either
real or personal property, may be levied upon in
like manner and with like effect under a writ of
attachment (Rule 39, Sec. 9[b])
“Break-open” order
An order from the court authorizing the sheriff to
destroy, demolish or remove improvements on
property subject of execution (Rule 39, Sec.
10[d])
A special order of demolition is an order from the
court authorizing the sheriff to destroy, demolish
or remove improvements on property subject of
execution. It is issued upon hearing and
reasonable notice. Without one, the sheriff
cannot destroy, demolish, or remove any
improvements on the property (Guario vs.
Ragsac, A.M. No. P-08-2571, August 27, 2009);
see Rule 39, Sec. 20[d]
280

A writ of execution directing the sheriff to cause
the defendant to vacate is in the nature of a
habere facias possessionem and authorizes the
sheriff, without need of securing a “break-open”
order, to break open the premises where there is
no occupant therein (Arcadio vs. Ylagan, A.M. No.
2734, July 30, 1986).
Note: The rationale is that the writ of execution
itself is essentially an order to place the prevailing
party in possession of the property. If the
defendant refuses to surrender possession of the
property to the prevailing party, the sheriff or
other proper officer should oust him. No express
order to this effect needs to be stated in the
decision (Guario vs. Ragsac, A.M. No. P-08-2571,
August 27, 2009).
Garnishment of Debts and Credits
Garnishment is the act of appropriation by the
court when the property of the debtor is in the
hands of third persons.
The process of levying shall be called
garnishment if the property involved is money,
stocks, or other incorporeal property in the hands
of third persons. (Rule 39, Sec. 9[c])
Note: Garnishment merely sets apart such funds
but does not constitute the creditor as owner of
the garnished property (De la Rama vs. Villarosa,
G.R. No. L-19727, June 29, 1963).
What may be garnished
The officer may levy on –
(a) Debts due the judgment obligor and
(b) Other credits, including
• Bank deposits
• Financial interests
• Royalties
• Commissions and
• Other personal property not capable of
manual delivery in the possession or
control of third parties (Rule 39, Sec.
9[c])
Procedure
(a) Notice shall be served upon the person owing
such debts or having in his possession or
control such credits to which the judgment
obligor is entitled.
Note: The garnishment shall cover only such
amount as will satisfy the judgment and all
lawful fees.
(b) The garnishee shall make a written report to
the court within 5 days from service of the
notice of garnishment stating whether or not
the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment.
If not, the report shall state how much funds
or credits the garnishee holds for the
judgment obligor.
Note: Upon service of the writ of
garnishment, the garnishee becomes a
“virtual party” or “forced intervenor” to the
case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply
with its orders and processes (BPI vs. Lee,
G.R. No. 190144, August 1, 2012).
(c) The garnished amount in cash, or certified
bank check issued in the name of the
judgment obligee, shall be delivered directly
to the judgment obligee within 10 working
days from service of notice on said garnishee
requiring such delivery, except the lawful
fees which shall be paid directly to the court.
(d) In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees
who shall be required to deliver the amount
281
 due; otherwise, the choice shall be made by Manner of Court can appoint some
the judgment obligee. Execution other person at the
expense of the disobedient
(e) The executing sheriff shall observe the same party and the act done shall
procedure under Sec. 9(a), Rule 39 with have the same effect as if
respect to delivery of payment to the the required party
judgment obligee (Rule 39, Sec. 9[d]). performed it (Rule 39, Sec.
10[a])
Garnishment vs. Attachment Sale of Real or Personal property
Manner of Sell such property and
Execution apply the proceeds in
Attachment Garnishment
conformity with the
Refers to corporeal Refers to money, judgment (Rule 39, Sec.
property in the stocks, credits and 10[b])
possession of the other incorporeal Delivery or restitution of real properties
judgment debtor property which are Effect Officer shall demand the
not in possession of losing party to peaceably
the judgment debtor vacate the property within
3 working days, and
(Caja vs. Nanquil,
restore possession to the
A.M. no. P-04-1885. judgment oblige; otherwise
September 13, the officer shall oust such
2004). disobedient party.
Manner of If no demolition is involved
Execution and the party refuses to
deliver, a writ of execution
Execution of judgment for Specific Acts (Rule directing the sheriff to
39, Sec. 10) cause the defendant to
vacate is in the nature of a
Specific Acts habere facias possesionem
and authorizes the sheriff
(a) Conveyance, delivery of deeds, or other
to break open the premises
specific acts vesting title.
where there is no occupant
(b) Sale of real or personal property.
therein (not contempt).
(c) Delivery or restitution of Real property.
(d) Removal of improvements on property
If demolition is involved,
subject of execution; and
there must be a special
(e) Delivery of Personal property
order (Rule 39, Sec. 10[c])
Removal of improvements
Summary of effects in case of refusal of Effect the officer shall not
judgment debtor, and the manners of destroy, demolish or
execution, for each specific act remove improvements
except upon special order
Conveyance, delivery of deeds, or other of the court.
specific acts vesting title Manner of Obligee must file a motion
Effect May direct the act to be Execution and upon special order of
done by someone at the the court, the officer may
cost of the disobedient destroy, demolish or
party.

282
 remove the improvements
(Rule 39, Sec. 10[d])
Delivery of personal property
Effect officer shall take
possession of the same and
forthwith deliver it to the
party entitled to satisfy any
judgment for money as
therein provided.
Manner of The officer shall take
Execution possession and deliver to
the party entitled thereto
(Rule 39, Sec. 10[e])
General Rule: Refusal by the judgment debtor
to comply with judgment of the court is not a
ground to be cited in contempt of court. (Pascua
vs. Heirs of Simeon, G.R. No. L-47717 May 2,
1988).
Exceptions:
(1) Refusal to perform a particular act or special
judgments under Rule 39, Sec. 11;
(2) In case of the provisional remedy of support
pendente lite under Rule 61 even if the
decision is not a special judgment and
requires the latter to pay money.
Execution of Special Judgments
Special Judgment is one which can only be
complied with by the judgment obligor because
of his/her personal qualifications or
circumstances (Sia vs. Arcenas, G.R No. 209672-
74, January 14, 2015).
When judgment requires the performance of any
act, other than for money and delivery of
property, the writ of execution shall be served
upon the party required to obey the same and
such party may be punished for contempt by
imprisonment, if he disobeys. (Rule 39, Sec. 11).
Requisites:
(1) The judgment requires performance of any
act other than payment of money, or the
sale or delivery of real or personal property.
(2) A certified copy of the judgment shall be:
(a) Attached to the writ of execution; and
(b) Served by the office upon the party
against whom the judgment is rendered
or upon any other person required
thereby, or by law, to obey the same
(Rule 39, Sec. 11).
A judgment granting a petition for mandamus is
a special judgment, since a writ of mandamus is
a command directed to an inferior court, tribunal,
or board, or to some corporation or person,
requiring the performance of a particular duty,
and which duty results from the official station of
the party to whom the writ is directed, or from
operation of law (National Housing vs. Abayari,
G.R. No. 166508, October 2, 2009)
Failure to comply with special judgment under
Rule 39, Section 11 is punishable by contempt by
imprisonment. This is an exception to the rule
that contempt is not a remedy to enforce a
judgment. (Rule 39, Sec. 11).
Effect of Levy on Third Persons
Levy creates a lien in favor of the judgment
obligee over the right, title and interest of the
judgment obligor in such property at the time of
the levy, subject to liens and encumbrances then
existing (Rule 39, Sec. 12).
Note: The power of the court in executing
judgments extends only over properties
unquestionably belonging to the judgment debtor
(Corpuz vs. Pascua, A.M. No. P-11- 2972,
September 28, 2011).
A duly registered levy on attachment or execution
is preferred over a prior unregistered sale. Under
the Torrens system, the auction sale of property
retroacts to the date the levy was registered;
283
now, under Secs. 51 and 2 of P.D. 1529, the act
of registration is the operative act to convey or
affect the land insofar as third persons are
concerned (Du vs. Stronghold Insurance Co. Inc.,
G.R. No. 156580, June 14, 2004)
Remedy of a third person whose property
has been levied for execution
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).
Lien
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
(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 (Sy vs. Discaya, G.R. No. 86301,
January 23, 1990)
• 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,
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 (Power
Sector Assets and Liabilities Management
Corporation (PSALM) vs. Maunlad Homes,
Inc., G.R. No. 215933, February 8, 2017)
For a third-party claim to be sufficient
(1) Must be filed by a person other than the
(2) defendant or his agent, at any time before
sale.
(3) Must be under oath or supported by affidavit
stating the claimant’s title to, o right of
possession of, the property, an grounds
therefor.
(4) Must be served upon the officer making levy
and a copy thereof upon the judgment
creditor (Rule 39, Sec. 16).
Effect of third-party claim
The officer shall not be bound to keep the
property, unless such 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 (Rule 39, Sec. 16).
284
Properties Exempt from Execution
General Rule: The following property, and no
other, shall be exempt from execution:
(a) The judgment obligor's Family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith;
(b) Ordinary tools and implements personally
used by him in 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 specially Exempt by law. (Rule 39,
Sec. 13)
Examples of properties specially exempt by law:
(a) Property mortgaged to the DBP (Sec. 26, CA
458);
(b) Savings of national prisoners deposited with
the postal savings bank (Act. No. 2489);
(c) benefits from private retirement systems of
companies and establishments with
limitations (R.A. 4917);
(d) Laborer’s wages except for debts incurred
for food, shelter, clothing and medical
attendance (Art. 1708, CC);
(e) Benefit payments from SSS (Sec. 16, R.A.
1161, as amended)
Exception: No article or species of property
mentioned in Sec. 13, Rule 39 (enumerated
above) shall be exempt from execution issued
upon a:
(a) Judgment recovered for its price or
(b) Judgment of foreclosure of a mortgage
thereon (Rule 39, Sec. 13)
The exemptions must be claimed, otherwise they
are deemed waived. It is not the duty of the
sheriff to set off the exceptions on his own
initiative (Herrera vs. Mcmicking, G.R. No. L-
5329, December 21, 1909).
Note: The above Rule clearly enumerates what
properties are exempt from execution.
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).
Proceedings where property is claimed by third
persons; in relation to third party claim in
attachment and replevin
285
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:
(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).
On spouses
A spouse who was not a party to the suit but
whose conjugal property is being executed
because the other spouse is the judgment obligor
is not considered a stranger to the suit and
cannot file a separate action to question the
execution since they could have easily questioned
the execution in the main case itself.
The institution of a separate action was allowed
when the property was the exclusive or
paraphernal property of a spouse who was not a
party to the case the judgment wherein was
sought to be executed. In such a situation, the
aggrieved spouse was deemed to be a stranger
to that main action (Sps. Ching vs. CA, G.R. No.
118830, February 24, 2003).
Duty of the Officer
General Rule Exception
The officer shall NOT When the judgment
be bound to keep the obligee, on demand of
property. 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
(Rule 39, Sec. 16)
Notes:
• In case of disagreement as to such value, the
same shall be determined by the court issuing
the writ of execution. (Rule 39, Sec. 16)
• 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. (Rule
39, Sec. 16)
• 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. (Rule
39, Sec. 16)
• 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 39, Sec. 16).
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 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).
286

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).
Accion Reinvindicatoria
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. (Rule 39, Sec. 16)
Procedure
He must institute an action, distinct and separate
from that which the judgment is being enforced,
with the court of competent jurisdiction
• In such action, the validity and sufficiency of
title of the claimant will be resolved.
• A writ of preliminary injunction against the
sheriff may be issued (Rule 39, Sec. 16)
Sale of Property
No Sale if Judgment and Costs Paid
At any time before the sale of property on
execution, the judgment obligor may prevent the
sale by paying the amount required by the
execution and the costs that have been incurred
therein. (Rule 39, Sec. 18)
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. (Rule 39, Sec. 19)
Persons Disqualified to Participate in the
Sale:
(a) Officer conducting the sale and his
deputies.
(b) Judge who issued the writ of execution;
(c) The guardian, the property of the person
or persons who may be under his
guardianship;
(d) Agents, the property whose administration
or sale may have been entrusted to them,
unless the consent of the principal has
been given;
(e) Executors and administrators, the property
of the estate under administration;
(f) Public officers and employees, the property
of the State or of any subdivision thereof,
or of any government-owned or controlled
corporation, or institution, the
administration of which has been intrusted
to them; this provision shall apply to
judges and government experts who, in
any manner whatsoever, take part in the
sale;
(g) Justices, judges, prosecuting attorneys,
clerks of superior and inferior courts, and
other officers and employees connected
with the administration of justice, the
property and rights in litigation or levied
upon an execution before the court within
whose jurisdiction or territory they exercise
their respective functions; this prohibition
includes the act of acquiring by assignment
and shall apply to lawyers, with respect to
the property and rights which may be the
object of any litigation in which they may
take part by virtue of their profession.
(h) Any others specially disqualified by law.
(NCC, Art. 1491).
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
287
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)
Adjournment of Sale
With written consent of the judgment obligor and
obligee or their duly authorized representatives:
The officer may adjourn the sale to any date and
time agreed upon by them.
Without such written consent: The officer may
adjourn the sale from day to day if it becomes
necessary to do so for lack of time. (Rule 39, Sec.
22)
Conveyance to Purchaser of Personal
Property Capable of Manual Delivery
When the purchaser pays the purchase price, the
officer making the sale must deliver the property
to the purchaser and, if desired, execute and
deliver to him/her a certificate of sale. (Rule 39,
Sec. 23)
Conveyance to Purchaser of Personal
Property NOT Capable of Manual Delivery
When the purchaser pays the purchase price, the
officer must execute and deliver a certificate of
sale. The certificate conveys to the purchaser all
the rights which the judgment obligor had in the
property as of the date of the levy on execution
or preliminary attachment. (Rule 39, Sec. 24).
Rules on Redemption
The right of a judgment debtor or redemptioner
to buy back from the purchaser of the property
sold at public auction by virtue of a writ of
execution at anytime within the reglamentary
period. (M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, p. 289)
(1) Personal Property - no right because the sale
is absolute.
(2) Real Property - right is given. (Rule 39, Sec.
27).
Who May Redeem
Only the following may redeem:
(1) Judgment obligor or his successor-in-
Interest within 1 year from the date of
registration of the Certificate of Sale; or,
(2) A creditor (redemptioner) having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold, within 1 year
from the date of registration of the
Certificate of Sale or within 60 days from the
last redemption by another redemptioner.
(Rule 39, Sec. 27)
Note: The purchaser is not entitled to the rents,
fruits or income of the property pending the
redemption and shall belong to the judgment
debtor until the expiration of his period of
redemption (Rule 39, Sec. 32).
288
Time and manner of successive Redemption price
redemptions
(a) By the judgment debtor or first
redemptioner:
Who When (1) Purchase price,
(2) 1% interest thereon up to time of
By the If exercising redemption redemption,
judgment ahead of mere redemptioner: (3) Any amount of assessments or taxes
obligor Within 1 year from the date which purchaser may have paid after
of registration of the purchase and interest on such last
certificate of sale. named amount at the same rate, and
(4) If the purchaser is also a creditor having
By first Within 1 year from the date a prior lien to that of a redemptioner,
other than the judgment under which
redemptioner of registration of the
such purchase was made, the amount of
certificate of sale. such other lien, also with interest.

By all Within 60 days from

subsequent last redemption. (Rule 39,
redemptioners Sec. 28)
Note: There is no extension or interruption of
redemption period. (Rule 39, Sec. 28)
Proof necessary
(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.
(b) By all subsequent redemptioners:
(1) Amount paid on last redemption,
(2) 2% interest thereon,
(3) Any amount of assessments or taxes
which purchaser may have paid after
purchase as well as interest on such last
named amount at the same rate, and
(4) The amount of any liens held by said last
redemptioner prior to his own, also with
interest. (Rule 39, Sec. 28).
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 the
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).

289
If redemption is made by the judgment
obligor
(1) No further redemption is allowed, and
(2) He is restored to his estate. (Rule 39,
Sec. 29)
Payment of redemption price may be made
to the:
(1) Purchaser or redemptioner, or
(2) For him to the officer who made the sale
(Rule 39, Sec. 29)
Duties upon redemption
The person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption.
(a) Acknowledged before a notary public or
other officer authorized to take
acknowledgments of conveyances of real
property.
(b) Filed and recorded in the registry of deeds
of the place in which the property is situated,
and
(c) The registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale. (Rule 39, Sec. 29)
Effect if no redemption is made
(a) If no redemption be made within 1 year from
the date of the registration of the certificate
of sale, the purchaser is entitled to a
conveyance and possession of the property;
or,
(b) If so redeemed whenever 60 days have
elapsed and no other redemption has been
made, and notice thereof given, and the
time for redemption has expired, the last
redemptioner is entitled to the conveyance
and possession.
Rights of the Judgment Obligor
(1) Remain in possession of the property
(cannot be ejected) (Rule 39, Sec. 31).
(2) Collect rent and profits (Rule 39, Sec. 32).
(3) Make necessary repairs (Rule 39, Sec. 31).
(4) Use in the ordinary course of husbandry
(Rule 39, Sec. 31).
(5) Use it in the same manner in which it was
previously used (Rule 39, Sec. 31).
Documents which the sheriff executes in
case of real property
(1) Certificate of sale
(2) Deed of conveyance
Certificate of sale
• Contents:
o A particular description of the real property
sold;
o The price paid for each distinct lot or
parcel;
o The whole price paid by him; and
o A statement that the right of redemption
expires one year from the date of the
registration of the certificate of sale
• Must be registered in the registry of deeds of
the place where the property is situated. (Rule
39, Sec. 25) - From registration of said
certificate, the 1 year redemption period starts
(Rule 39, Sec. 28)
• 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. (Reyes vs. Noblejas, G.R. No. L-
23691, November 25, 1967)
• 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. (Heirs of Jarque vs.
Jarque, G.R. No. 196733. November 21, 2018)
• 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
290
 property sold. (Reyes vs. Noblejas, G.R. No. L- judgment obligor to the property at the time
23691, November 25, 1967) of levy.

• If the lien of the creditor is prior to the
judgment under which the property was sold,
he is not a redemptioner (Cayton vs. Zeonnix
Trading Corporation, G.R. No. 169541,
October 9, 2009)
• The right of redemption is transferable and
may be sold voluntarily, but said right cannot
be levied upon by the judgment creditor
(Cayton vs. Zeonnix Trading Corporation, G.R.
No. 169541, October 9, 2009)
Certificate of Sale Where Property is
Claimed by Third Person
• 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 (Sps. Gallent vs. Velasquez,
G.R. No. 203949, April 6, 2016).

The certificate of sale must make express Judgment Obligor vs. Redemptioner
mention of the existence of such third-party
claim. (Rule 39, Sec. 26) Judgment Redemptioner
Obligor
Deed of Conveyance One against whom One who has a lien by
• Executed upon the expiration of the period to the judgment is by virtue of an
redeem. executed or his attachment judgment,
successor in judgment, or mortgage
Note: The purchaser or redemptioner shall be Interest (Rule 39, on the property sold,
substituted to and acquire all the rights, title, Sec. 27). SUBSEQUENT to the
interest and claim of the judgment obligor to lien under which the
the property as of the time of the levy. property was sold.
May redeem within May redeem:
• Executed by the officer making the sale. 1 year from the Within 1 year from the
date of registration date of registration of
Under the expiration of the right of
of the certificate of the certificate of sale if
redemption (Rule 39, Sec. 33)
sale (Rule 39, Sec. he is the first
28) redemptioner, or
• The Deed of Conveyance transfers to the
purchaser whatever rights the judgment
debtor had in the property. Within 60 days from
• The purchaser is entitled to a conveyance and the last redemption, if
possession of the property if there is no he be a subsequent
redemption. redemptioner,
provided that the
• The purchaser is substituted to and acquires judgment debtor has
all the rights, title, interest and claims of the not exercised his right

291
 of redemption. (Rule Recovery of Purchase prince if sale not
39, Sec. 28) effective

The purchaser can recover the purchase price

from the judgment obligor in the following
situations:

(1) When the purchaser or his successor in

interest fails to recover possession of
property; or
(2) If the purchaser is evicted due to:
• Irregularities in the proceedings
Once he redeems, Further redemption is concerning the sale;
no further allowed, even after • Reversal or setting aside of judgment;
redemption is lapse of 1 year, as long • Fact that the property was exempted from
allowed. as each redemption is execution; and
made within 60 days • Third person has vindicated his claim to the
property (Rule 39, Sec. 34).
after the last
foreclosure. (Rule 39,
The purchaser may, on motion in the same action
Sec. 28)
or in a separate action,

Note: The period within which to redeem the

property sold is not suspended by the institution
of an action to annul the foreclosure sale
(Landrito vs. Court of Appeals, G.R. No. 133079,
August 9, 2005).
Offer to Redeem
(a) Recover from the judgment obligee the price
paid, with interest, or so much thereof as
has not been delivered to the judgment
obligor; or
(b) Have the original judgment revived in his
name for the whole price with interest, or so
much thereof as has been delivered to the
judgment obligor.

a) Redemption cannot be affected by an offer to
redeem.
b) The offer to redeem must be accompanied
with a bona fide tender or delivery of the
redemption price.
c) 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).
Note: The judgment so revived shall have the
same force and effect as an original judgment
would have as of the date of the revival and no
more. (Rule 39, Sec. 34)
Remedy of judgment creditor if the
execution is returned unsatisfied
1. He may cause examination of the judgment
debtor as to his property and income (Rule
39, 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

292
 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 (Rule 39, Sec. 38).
Payment by Installment by Judgment
Debtor
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 (Rule
39, Sec. 40).
Appointment of a receiver for properties
that may be subject to execution
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 (Rule 39, Sec. 42).
Remedy of judgment creditor when the
persons indebted to the judgment debtor
deny their debt or claim an adverse interest
over the judgment debtor’s properties
The court may authorize the judgment creditor to
institute an action to recover the property, forbid
its transfer and may punish disobedience for
contempt (Rule 39, Sec. 43).
Claims against surety
A case may be filed against the surety provided
the principal is informed about it.
Examination of judgment obligor when
judgment is unsatisfied
When applicable
When the return of the writ issued against
property of a judgment obligor shows that
judgment remains unsatisfied. (Rule 39, Sec. 36)
Procedure
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
(a) Requiring such judgment obligor to appear
and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a specified
time and place; and
(b) Proceedings may thereupon be had for the
application of the property and income of the
judgment obligor towards the satisfactions
of the judgment. (Rule 39, Sec. 36)
When judgment obligor not required to
appear/ be examined
(a) When he is required to appear before a court
or commissioner outside the province or city
in which such obligor resides or is found.
(Rule 39, Sec. 36).
(b) After the lapse of the five years within which
a judgment may be enforced by motion.
(Umali vs. Coquia, G.R. No. L- 46303, May 9,
1988)
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. (Rule 39, Sec. 36)
Order for payment in fixed monthly
installments
If upon investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are
more than necessary for the support of his family,
the court may order that:
293
 (a) He pay the judgment in fixed monthly
installments, and
(b) Upon his failure to pay any such
installment when due without good
excuse, may punish him for indirect
contempt. (Rule 39, Sec. 40).
Examination of obligor of judgment obligor
When applicable
a. 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
b. Upon proof that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him (Rule
39, Sec. 37).
Procedure
The court may, by an order
a. 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
b. Be examined concerning the same. (Rule 39,
Sec. 37).
Effect of order
The service of the order shall
a. Bind all credits due the judgment obligor and
all money and property of the judgment
obligor in the possession or in the control of
such person, corporation, or juridical entity
from the time of service, and
b. 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)
When alleged obligor denies debt or claims
property
The court may
(a) Authorize the judgment obligee to institute
an action against such person or
corporation for the recovery of such
interest or debt
(b) Forbid a transfer or other disposition of
such interest or debt within 120 days from
notice of the order, and
(c) May punish disobedience of such order as
for contempt. (Rule 39, Sec. 43)
Entry of satisfaction of judgment
Satisfaction of a judgment shall be entered by the
Clerk of Court in the court docket, and in the
execution book, upon the:
(a) Return of a writ of execution showing the full
satisfaction of the judgment, or
(b) Filing of an admission to the satisfaction of
the judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by his
counsel unless a revocation of his authority
is filed, or
(c) Endorsement of such admission by the
judgment obligee or his counsel on the face
of the record of the judgment (Rule 39, Sec.
44).
The court may order the entry of satisfaction
even if the judgment was satisfied in fact or
otherwise than upon execution:
(a) With admission of satisfaction by the
judgment obligee or counsel, or
● On demand of the judgment obligor,
such persons must execute and
acknowledge, or indorse, the admission.
● After notice and upon motion, the court
may order such persons to do so.
(b) Without admission of satisfaction (Rule 39,
Sec. 45)
294
Effect of Judgments or Final Orders
Immutability of judgments
A final and executory decision is
immutable. A decision or order becomes final and
executory if the aggrieved party fails to appeal or
move for a reconsideration within 15 days from
his or her receipt of the court's decision or order
disposing of the action or proceeding. (Taningco
v. Fernandez, G.R. No. 215615, December 9,
2020, J. Hernando)
Thus, a judgment that has become final is
immutable and unalterable and can no longer be
modified in any respect even if the modification
is meant to correct an erroneous conclusion of
fact or of law, and whether the modification is
made by the court that rendered the decision or
by the highest court of the land. In addition,
controversies cannot drag on indefinitely because
fundamental considerations of public policy and
sound practice demand that the rights and
obligations of every litigant must not hang in
suspense for an indefinite period of time.
It serves a two-fold purpose, namely:
(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 why
the courts exist. (Calubad v. Aceron, G.R. No.
188029, September 2, 2020, J. Hernando)
The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may be
as follows:
(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
which was actually and necessarily included
therein or necessary thereto. (Rule 39, Sec.
47).
The doctrine is grounded on public policy and
sound practice which must not simply be
ignored. It is adhered to by the courts to end
litigations albeit the presence of errors.
The orderly administration of justice requires
that, at the risk of occasional errors, the
judgments/resolutions of a court must reach a
point of finality set by the law. The noble purpose
is to write finis to dispute once and for all. This is
a fundamental principle in our justice system,
without which there would be no end to
litigations. Utmost respect and adherence to this
principle must always be maintained by those
who exercise the power of adjudication. Any act,
which violates such principle, must immediately
295
be struck down. Indeed, the principle of
conclusiveness of prior adjudications is not
confined in its operation to the judgments of what
are ordinarily known as courts, but extends to all
bodies upon which judicial powers had been
conferred.
The only exceptions to the rule on the
immutability of final judgments are:
(1) the correction of clerical errors,
(2) the so-called nunc pro tunc entries which
cause no prejudice to any party, and
(3) void judgments. (Taningco v. Fernandez,
G.R. No. 215615, December 9, 2020, J.
Hernando)
Res Judicata
Res judicata means 'a matter adjudged; a thing
judicially acted upon or decided; a thing or matter
settled by judgment.' It lays the rule that an
existing final judgment or decree rendered on the
merits, without fraud or collusion, by a court of
competent jurisdiction, upon any matter within its
jurisdiction, is conclusive of the rights of the
parties or their privies, in all other actions or suits
in the same or any other judicial tribunal of
concurrent jurisdiction on the points and matters
in issue in the first suit. (Angono Medics Hospital,
Inc. v. Agabin, G.R. No. 202542, [December 9,
2020, J. Hernando)
same thing and under the same title and in
the same capacity;
The judgment or decree of a court of
competent jurisdiction concludes the
litigation between the parties and their
successors or privies and bars a new action
or suit involving the same cause of action. M.
De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 292)
(b) Conclusiveness of judgment
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
which was actually and necessarily included
therein or necessary thereto.
Any right, fact or matter in issue which has
been directly adjudicated upon or is
necessarily involved in the determination of
the action by a competent court is
conclusively settled by the judgment or final
order and cannot be litigated again by the
parties and their privies. (M. De Leon,
Remedial Law Reviewer-Primer, 2021
Edition, pp. 292-293)

Two concepts of Res Judicata Conclusiveness of

Res Judicata
Judgment
(a) Bar by prior judgment There is identity of Only identity of parties
parties, subject and subject matter.
The judgment or final order is, with respect matter and cause
to the matter directly adjudged or as to any of action.
other matter that could have been raised in The first judgment The first judgment is
relation thereto, conclusive between the is an ABSOLUTE conclusive only as to
parties and their successors in interest by title BAR to all matters matters directly
subsequent to the commencement of the directly adjudges adjudged and actually
action or special proceeding, litigating for the and those that litigated in the first
action, the second

296
 might have been action can be
adjudged. prosecuted (Samson
vs. Spouses Gabor,
G.R. no. 182970. July
23, 2014).
Elements of Res Judicata
The elements of res judicata are:
(1) the judgment sought to bar the new action
must be final;
(2) the decision must have been rendered by a
court having jurisdiction over the subject
matter and the parties;
(3) the disposition of the case must be a
judgment on the merits; and
(4) there must be as between the first and
second action, identity of parties, subject
matter, and causes of action.
Should identity of parties, subject matter, and
causes of action be shown in the two cases,
then res judicata in its aspect as a 'bar by prior
judgment' would apply. If as between the two
cases, only identity of parties can be shown, but
not identical causes of action, then res
judicata as 'conclusiveness of judgment'
applies. ||| (Angono Medics Hospital, Inc. v.
Agabin, G.R. No. 202542, December 9, 2020, J.
Hernando)
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)
Absolute identity of parties in Res Judicata
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 (Crucillo vs.
Office of the Ombudsman, G.R. No. 159876, June
26, 2007).
Ultimate test to ascertain the identity of
causes of action
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 (Perez vs. CA, G.R
No. 157616. July 22, 2005).
Collateral Estoppel or Estoppel by Verdict
Res judicata under the concept of conclusiveness
of judgment is embodied in the third paragraph
of Section 47, Rule 39 of the Rules of Civil
Procedure. Otherwise known as "preclusion of
issues" or "collateral estoppel," the doctrine of
conclusiveness of judgment bars the relitigation
of any right, fact, or matter in issue directly
adjudicated or necessarily involved in the
determination of an action before a competent
297
court in which judgment is rendered on the merits
and conclusively settled by the judgment therein.
This applies to the parties and their privies
regardless of whether the claim, demand,
purpose, or subject matter of the two actions is
the same. Thus, 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 or their privies will be
final and conclusive in the second if that same
point or question was in issue and adjudicated in
the first suit.
Conclusiveness of judgment applies where there
is identity of parties in the first and second cases,
but there is no identity of causes of action. Simply
put, conclusiveness of judgment bars the
relitigation of particular facts or issues in another
litigation between the same parties on a different
claim or cause of action.
Here, the rule on conclusiveness of judgment
also applies because the determination of who
participated in the illegal strike subject of the
return-to-work order, and who defied the return-
to-work order has long been declared settled
in Airline Pilots. In this case, it is undisputed that
all petitioners signed PAL's logbook for return to
work returnees/return to work compliance. They
are thus covered by the Court's finding that those
who participated in the strike had lost their
employment. Hence, this question cannot be
raised again here.
Furthermore, although the parties are not exactly
the same, the concept of conclusiveness of
judgment still applies because jurisprudence does
not dictate absolute identity but only substantial
identity of parties. There is substantial identity of
parties when there is a community of interest
between a party in the first case and a party in
the second case, even if the latter was not
impleaded in the first case. As this Court
explained in Rodriguez, ALPAP and petitioners
"share an identity of interest from which flowed
an identity of relief sought, namely, the
reinstatement of the terminated ALPAP members
to their former positions." (Almagro v. Philippine
Airlines, Inc., G.R. No. 204803, September 12,
2018)
Note: Void judgment cannot be invoked as res
judicata but avoidable one can.
Enforcement and effect of foreign
judgments or final orders
Enforcement:
By filing an action based on said judgment; the
foreign judgment is presumed to be valid and
binding. (Rule 39, Sec. 48)
A valid judgment rendered by a foreign tribunal
may be recognized insofar as the immediate
parties the underlying cause of action are
concerned so long as it is convincingly shown
that:
(a) There has been an opportunity for a fair
hearing before a court of competent
jurisdiction;
(b) Trial upon registered proceedings has been
conducted, and
(c) There is nothing to indicate either a
prejudice in court and in the system of laws
under which it is sitting or fraud in procuring
the judgment. (Philippine Aluminum v. Fasgi
Enterprises, G.R. No. 137378, October 12,
2000)
The judgment may be repelled by evidence of:
(a) Want of Jurisdiction;
(b) Want of Notice to the party
(c) Collusion;
(d) Fraud; or
(e) Clear mistake of law or fact (Rule 39, Sec.
47).
298
Purpose
(a) To avoid repetitive litigation on claims and
issues,
(b) Prevent harassment of the parties, and
(c) Avoid undue imposition on the courts.
(Regalado, Civil Procedure Vol. I, 2010 Ed.
p. 536)
Note: A foreign judgment on the mere strength
of its promulgation is not yet conclusive, as it can
be annulled on the grounds of want of
jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. It is likewise
recognized in Philippine jurisprudence and
international law that a foreign judgment may be
barred from recognition if it runs counter to public
policy (Republic vs. Gingoyon, GR 166429, June
27, 2006).
Basis: Philippine Rule on Recognition and
Enforcement of Foreign Judgment
(1) It is based on comity
(2) As vested right
(3) As an obligation. The judgment of a court of
competent jurisdiction over the defendant
imposes a duty or obligation on him to pay
the same for which judgment is given, which
the courts in the country are bound to
enforce.
(4) On the doctrine of res judicata (SCRA
Annotation on Enforcement and Recognition
of Foreign Judgments by Jorge R. Caquia)
Effects of foreign judgments
Nature Effect
In judgments Judgment is conclusive
against a specific upon the
thing (in rem) title to the thing
In judgments Judgment is presumptive
against a person evidence of a right as
(in personam) between parties and
their successors-in interest
by a subsequent title
The case of Fujiki vs. Marinay
(G.R. No. 196049, June 26, 2013)
The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not apply
in a petition to recognize a foreign judgment
relating to the status of a marriage where one of
the parties is a citizen of a foreign country.
For Philippine courts to recognize a foreign
judgment relating to the status of a marriage
where one of the parties is a citizen of a foreign
country, the petitioner only needs to prove the
foreign judgment as a fact under the Rules of
Court. x xx However, the effect of a foreign
judgment is not automatic. To extend the effect
of a foreign judgment in the Philippines,
Philippine courts must determine if the foreign
judgment is consistent with domestic public
policy and other mandatory laws. A petition to
recognize a foreign judgment declaring a
marriage void does not require relitigation under
a Philippine court of the case as if it were a new
petition for declaration of nullity of marriage.
Philippine courts cannot presume to know the
foreign laws under which the foreign judgment
was rendered. They cannot substitute their
judgment on the status, condition and legal
capacity of the foreign citizen who is under the
jurisdiction of another state. Thus, Philippine
courts can only recognize the foreign judgment
as a fact according to the rules of evidence.
Section 48(b), Rule 39 states that a foreign
judgment or final order against a person creates
a "presumptive evidence of a right as between
the parties and their successors in interest by a
subsequent title." Moreover, Section 48 of the
Rules of Court states that "the judgment or final
order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact."
299
Presumption of regularity Nature of Provisional Remedies

A foreign judgment is presumed to be valid and Provisional remedies are temporary, auxiliary and
binding in the country from which it comes, until ancillary remedies available to a litigant for the
a contrary showing, on the basis of a protection of his rights while the main action is
presumption of regularity of proceedings and the pending. They are writs and processes which are
giving of due notice in the foreign forum. not main actions and they presuppose the
existence of a main action.
(Asiavest Merchant Bankers vs. CA, G.R. No.
110263, July 20, 2001) They are provisional because they constitute
temporary measures availed of during the
Courts are not allowed to delve into the pendency of the action. They are ancillary
merits of a foreign judgment because they are mere incidents in and are
dependent upon the result of the main action.
(M. De Leon, Remedial Law Reviewer-Primer,
The Regional Trial Court can recognize the
2021, pp. 296-297, citing Regalado, F., Remedial
foreign judgment in a proceeding for cancellation Law Compendium, Vol. 8th Ed., pg. 616).
or correction of entries in the Civil Registry under
Rule 108 of the Rules of Court, since the Such remedies are dependent for their
recognition of a foreign judgment only requires application upon the existence of a principal
proof of fact of the judgment. (Asiavest Merchant action. The dismissal of a principal action or its
Bankers vs. CA, G.R. No. 110263, July 20, 2001) resolution will render the provisional remedies
therein ineffective (Riano, Civil Procedure, Vol. II,
2016 Ed., p.1).
IV. PROVISIONAL REMEDIES
NOTE: Injunction can be a main action if it seeks
A. NATURE, PURPOSE, AND
to permanently enjoin the defendant through a
JURISDICTION OVER PROVISIONAL
REMEDIES final injunction (not preliminary) issued by the
court and contained in the judgment (Salvador v.
Definition Patricia, Inc., G.R. No. 195834, November 9,
2016)
Provisional remedies are remedies to which
the parties may resort to for the preservation or
PROVISIONAL SPECIAL CIVIL
protection of their rights or interest, during the
pendency of the litigation. (Riguera, Primer- REMEDIES ACTIONS
Reviewer on Remedial Law, 2022 Ed., p. 800)
Provisional remedies These are ordinary
“Provisional” means temporary, preliminary or also known as civil proceedings;
tentative. (Tan vs. Adre, A.M. No. RTJ-05-1898, ancilliary or what makes them
January 31, 2005) auxiliary remedies, special are the distinct
are writs and peculiarities inherent
processes available in their very nature
during the pendency not found in ordinary
of the action which civil actions
may be resorted to by

300
a litigant to preserve Preliminary Injunction (Rule 58)
and protect certain
at any stage of the (1) Action for injunction,
rights and interests
action or whether coupled with
pending rendition,
proceeding prior to other prayers
and for purposes of (2) Forcible entry and
the judgment or
the ultimate effects, of unlawful detainer
final order
a final judgment in the
case. Receivership (Rule 59)

They are provisional These are actions in at any stage of the (1) Receivership action
because they themselves, but action or (2) Real action involving
constitute temporary possessing special proceeding and title to or possession of
measures availed of matters that require realty
even after final
during the pendency special procedures (3) Foreclosure of
judgment therein. mortgage
of the action, and they (De Fiesta v. Llorente,
(4) Dissolution of
are ancillary because 25 Phil. 544). corporation
they are mere
incidents in and are Replevin (Rule 60)
dependent upon the
at the (1) Recovery of possession
result of the main
commencement of of personal property
action. (United Alloy (2) Recovery of personal
the action or at
Phils. Corp. v. United property subject of
any time before
Coconut Planters chattel mortgage as a
answer preliminary step to
Bank, G.R. No.
179257, November extrajudicial
foreclosure
23, 2015)
Support Pendente Lite (Rule 61)
Provisional Remedies Under the Rules of
at any stage of the (1) Support, whether as
Court the main case or as one
action and even
for the first time on of several causes of
WHEN IN WHAT PRINCIPAL action
appeal BUT before
(2) Criminal actions where
AVAILABLE ACTION the final judgment the civil liability
in said case on includes support of the
Preliminary Attachment
appeal offspring as a
(Rule 57) consequence of the
crime, i.e. rape,
At the (1) Recovery of liquidated
seduction
commencement of sum of money
(2) Recovery of possession (M. De Leon, Remedial Law Reviewer-Primer,
action or at any
time but before
of property unjustly or 2021, pp. 297-298)
fraudulently taken,
entry of final detained or converted
judgment

301
Note: The enumerations in the Rules of Court are
not exclusive. (Lorenzo Shipping Corp. v. Villarin,
G.R. Nos. 175727 & 178713, 2019)
Other Provisional Remedies
(1) Interim Reliefs in a petition for a Writ
of Amparo
(a) Witness Protection Order (WPO) (RA
6981; Rule on the Writ of Amparo);
(b) Inspection Order (IO) (AM 07-9-12,
Rule on Writ of Amparo);
(c) Production Order (PO) (AM 07-9-12,
Rule on Writ of Amparo);
(d) Temporary Protection Order (TPO)
(AM 07-9-12, Rule on Writ of
Amparo);
(2) Provisional Remedies issued by a
Family Court
(a) Temporary Protection Order (TPO)
(RA 9262, Anti-Violence Against
Women and Their Children)
(b) Hold Departure Order (Criminal cases
under Circular 39-97 and Family cases
under AM 02-11-12);
(c) Temporary Visitation Rights (AM 02-
11-12, Rule on Provisional Orders);
(d) Guardian Ad Litem of Child (AM 02-1-
19, Rule on Involuntary Commitment
of Children);
(e) Temporary Custody of Child (AM 01-
1-19 and AM 02-11-12);
(f) Spousal and Child Support (AM 02-11-
12, Rule on Provisional Orders)
(3) Interim Reliefs involving
enforcement or violations of
environmental laws
(a) Temporary Environmental Protection
Order (TEPO) (Sec. 8, Rule 2, Part II,
A.M. No. 09-6-08-SC
(b) Environmental Protection Order (EPO)
(A.M. No. 09-6-8-SC, Rule 2, Sec. 8)
(c) Temporary Restraining Order (TRO)
and Preliminary Injunction issued by
Supreme Court
(d) Attachment (Rule 127)
(4) Interim Reliefs under Human
Security Act
(a) Inspection, Examination of Accounts
and Freeze Order (RA 9372, Human
Security Act);
(b) Seizure and Sequestration of
Accounts and Assets (RA 9372,
Human Security Act);
(c) Restriction of Travel (RA 9372,
Human Security Act);
(5) Interim Reliefs under AMLA
(a) Freeze Order under RA 9160 as
amended by RA 9194 (Anti-Money
Laundering Act);
(6) Administration of Common Property
(AM 02-11-12, Rule on Provisional Orders);
(7) Stay Order (AM 00-8-10, Rules of
Procedure on Corporate Rehabilitation);
(8) Interim Measures of Protection under
Special Rules of Court on Alternative
Dispute Resolution (Sec. 5.6, A.M. No.
07-11-08)
(9) Provisional Remedy of Deposit in the
Exercise of the Court’s Equity
Jurisdiction
In a situation where there is “silence,
obscurity or 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 Court if 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
302
 judgments to the special circumstances of
a case because of inflexibility of its
statutory or legal jurisdiction (Reyes vs.
Lim, G.R. No. 134241, August 11, 2003
(10) Provisional Remedies in Criminal
Case (Rule 127) and in some Special
Civil actions and special proceedings.
Purpose of Provisional Remedies
Provisional remedies are resorted to by litigants
for any of the following reasons:
(a) To preserve or protect their Rights or
interests while the main action is pending;
(b) To secure the Judgment;
(c) To preserve the Status quo; or
(d) To preserve the Subject matter of the action
(Calo vs. Roldan, G.R. No. L-252, March 30,
1946)
Jurisdiction over Provisional Remedies
General Applications must be filed with
Rule: the court having jurisdiction
over the pending principal/main
action. An inferior court may
grant a provisional remedy in
an action pending with it. (Sec.
33, B.P. 129)
But where the main action is
for support, provisional remedy
of support pendente lite may
not be granted by a municipal
trial court because the main
action is within the jurisdiction
of the family court. (M. De
Leon, Remedial Law Reviewer-
Primer, 2021, p. 298
Exception: Provisional remedies in civil
actions may be availed of
insofar as they are applicable.
When the civil action is
instituted in the criminal as
provided in Rule 111, the
offended party may have the
property of the accused
attached as security for the
satisfaction of judgment that
may be recovered from the
accused in the following cases:
(a) When the accused is about
to abscond;
(b) When the criminal action is
based on a claim for
money or property
embezzled or fraudulently
misapplied or converted
for 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;
(c) When the accused has
concealed, removed, or
disposed of his property, or
is about to do so; and
(d) When the accused reside
outside the PH.
Note: Orders granting or denying provisional
remedies are merely interlucotory and cannot
be suject of an appeal. (Rule 41, Sec. 1)
The provisional remedies provided under the
Rules of Court can be issued by the following
courts, to wit:
(1) Supreme Court (Sec. 1, Rule 45, Rules of
Civil Procedure)
(2) Court of Appeals (Sec. 9[1], B.P. Blg. 129)
(3) Sandiganbayan (Sec. 4, R.A. No. 10660)
(4) Court of Tax Appeals (Sec. 13, R.A. No.
9282)
(5) Regional Trial Court (Sec. 18, B.P. Blg. 129)
303
(6) Shari’ah District Court (Sec. 413[2], P.D. No.
1083)
(7) Metropolitan Trial Court / Municipal / Circuit
Trial Courts (Sec. 33, B.P. Blg. 129)
B. PRELIMINARY ATTACHMENT
(RULE 57)
Attachment is defined as 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, Co., Inc.
v. Spouses Garcia, G.R. No. 203240, March 18,
2015)
A writ of preliminary attachment is a provisional
remedy issued upon the order of the court where
an action is pending. Through the writ, the
property or properties of the defendant may be
levied upon and held thereafter by the sheriff as
security for the satisfaction of whatever judgment
might be secured by the attaching creditor
against the defendant. The provisional remedy
of attachment is available in order that the
defendant may not dispose of the property
attached, and thus prevent the satisfaction of any
judgment that may be secured by the plaintiff
from the former. (Chua v. China Banking Corp.,
G.R. No. 202004, November 4, 2020, J.
Hernando)
A writ of attachment is substantially a writ of
execution except that it emanates at the
beginning, instead of at the termination, of a suit.
It places the attached properties in custodia legis,
obtaining pendente lite a lien until the judgment
of the proper tribunal on the plaintiff's claim is
established, when the lien becomes effective as
of the date of the levy. (Banco De Oro Unibank,
Inc. v. Ypil, Sr., G.R. No. 212024, October 12,
2020, J. Hernando)
An attachment is a proceeding in rem, and,
hence, is against the particular property,
enforceable against the whole world. (Spouses
Tolentino v. Fana Real Estate Corp., G.R. No.
234227 (Notice), September 29, 2021)
Accordingly, the attaching creditor acquires a
specific lien on the attached property which
nothing can subsequently destroy except the very
dissolution of the attachment or levy itself.
Such a proceeding, in effect, means that the
property attached is an indebted thing and a
virtual condemnation of it to pay the owner’s
debt. The lien continues until the debt is paid, or
sale is under execution issued on the judgment,
or until the judgment is satisfied, or the
attachment discharged or vacated in some
manner provided by law. (Valdevieso v.
Damalerio, G.R. No. 133303, February 17, 2005)
Nature of Preliminary Attachment
By its nature, preliminary attachment, under Rule
57 of the Rules of Court , is an ancillary
remedy applied for not for its own sake but to
enable the attaching party to realize upon the
relief sought and expected to be granted in the
main or principal action; it is a measure auxiliary
or incidental in the main action. As such, it is
available during its pendency which may be
resorted to by a litigant to preserve and protect
certain rights and interests during the interim,
awaiting the ultimate effects of a final judgment
in the case." Additionally, "the remedy
of attachment is harsh, extraordinary, and
summary in nature. (East West Banking Corp. v.
Cruz, G.R. No. 221641, July 12, 2021, J.
Hernando)
In addition, attachment is also availed of in order
to acquire jurisdiction over the action by actual or
304
constructive seizure of the property in those
instances where personal or substituted service
of summons on the defendant cannot be
effected. (Coca-Cola Femsa Philippines, Inc. v.
Pacific Sugar Holdings Corp., G.R. No. 241333,
June 27, 2022)
Kinds of Attachments
PRELIMINARY issued at the
ATTACHMENT commencement of the
action or at any time
before entry of judgment
as security for the
satisfaction of any
judgment that may be
recovered in the cases
provided for by the rules.
(Rule 57, Sec. 1)
Here the court takes
custody of the property of
the party against whom
the attachment is
directed.
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. (Rule 57,
Sec. 5)
Garnishment simply
impounds the property in
the possession of the
garnishee and maintains
the status quo until the
main action is finally
decided. Further, by
means of garnish- ment,
the plaintiff reaches
credits belonging to the
defendant and owing to
him from a third person
who is a stranger to the
litigation.
LEVY ON the writ issued by the
EXECUTION court after judgment by
which the property of the
judgment obligor is taken
into custody of the court
before the sale of the
property on execution for
the satisfaction of a final
judgment. (Rule 39, Sec.
9[b])
It is a preliminary step to
the sale on execution of
the property of the
judgment debtor.
(M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 300)
Jurisdiction over the person of the
defendant
As a preliminary note, a distinction should be
made between issuance and implementation
of the writ of attachment. It is necessary to
distinguish between the two to determine when
jurisdiction over the person of the defendant
should be acquired to validly implement the writ.
The grant of the provisional remedy of
attachment involves three stage:
1. The court issues the order granting the
application;
2. The writ of attachment issues pursuant to
the order granting the writ;
3. The writ is implemented.
For the initial two stages, it is not necessary that
jurisdiction over the person of the defendant be
first obtained.
However, once the implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant for without such
305
jurisdiction, the court has no power and authority
to act in any manner against the defendant. Any
order issuing from the Court will not bind the
defendant. (Mangila v. Court of Appeals, G.R. No.
125027, August 12, 2002)
Purpose of Preliminary Attachment
A writ of preliminary attachment serves two
purposes. First, it takes hold of the property of a
debtor prior to promulgation of judgment to
prevent depletion or loss of the property; and
second, it subjects the property to payment to the
creditor, assuming a favorable decision is met on
the latter's claim. The writ aims to create a lien
on the property of a debtor as security until a
judgment is obtained. This ensures the creditor
that while the case is pending, the debtor will not
dispose or conceal their property to evade
responsibilities. Ultimately, the writ ensures that
judgment will be satisfied. (Coca-Cola Femsa
Philippines, Inc. v. Pacific Sugar Holdings Corp.,
G.R. No. 241333, June 27, 2022)
In addition, to enable the court to acquire
jurisdiction over the res or the property subject
of the action in cases where service in person or
any other service to acquire jurisdiction over the
defendant cannot be effected. (Philippine
Commercial International Bank v. Alejandro, G.R.
No. 175587, 2008)
Rules on Attachment must be strictly
construed
The remedy by attachment is purely a statuary
remedy, and the provisions thereof must be
strictly construed. The courts have also held that
no court has authority to issue a writ of
attachment without express statutory permission.
(La Compañia General De Tabacos De Filipinas v.
Trinchera, G.R. No. 3368A, March 8, 1907)
Grounds for Issuance of Writ of Attachment
The property of the adverse party may be
attached as security for the satisfaction of any
judgment that may be recovered in the following
instances:
1. In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a cause
of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party
who is about to depart from the Philippines
with intent to defraud his creditors (Sec. 1[a],
Rule 57, Rules of Court);
2. In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of
his employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty (Sec. 1[b], Rule 57, Rules of
Court);
3. In an action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the property, or
any part thereof, has been concealed,
removed, or disposed of to prevent its being
found or taken by the applicant or an
authorized person (Sec. 1[c], Rule 57, Rules
of Court);
4. In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon which
the action is brought, or in the performance
thereof (Sec. 1[d], Rule 57, Rules of Court);
5. In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud his
creditors (Sec. 1[e], Rule 57, Rules of Court);
or
6. In an action against a party who does not
reside and is not found in the Philippines,
or on whom summons may be served by
publication. (Sec. 1[f], Rule 57, Rules of
Court);
306
Action Cause of Against thereof, to
action whom? prevent its
being found or
In an action on a cause of against a party taken by the
for the action arising who is about to applicant or an
recovery of from law, depart from authorized
a specified contract, the Philippines person (Sec.
amount of quasi-contract, with intent to 1[c], Rule 57,
money or delict or quasi- defraud his Rules of
damages, delict creditors (Sec. Court);
other than 1[a], Rule 57,
moral and Rules of In an action contracting the against a party
exemplary, Court); against a debt or who has been
party who incurring the guilty of a
In an action money or by a public has been obligation fraud (Sec.
for money property officer, or an guilty of a upon which 1[d], Rule 57,
or property embezzled or officer of a fraud the action is Rules of
fraudulently corporation, or brought, or in Court);
misapplied or an attorney, the
converted to factor, broker, performance
his own use agent, or clerk, thereof
in the course
of his In an action A property has against a party
employment against a been removed, who has
as such, or by person who disposed of removed or
any other intends to with intent to disposed of his
person in a defraud his defraud the property, or is
fiduciary creditors party’s about to do so,
capacity, or for creditors with intent to
a willful defraud his
violation of creditors (Sec.
duty (Sec. 1[e], Rule 57,
1[b], Rule 57, Rules of
Rules of Court); or
Court);
In an action a party who
In an action property Any person against does not reside
to recover unjustly or who had and is not
the fraudulently concealed, found in the
possession taken, removed, or Philippines, or
of detained or disposed of the on whom
converted, property, or summons may
any part be served by

307

publication.
(Sec. 1[f], Rule
57, Rules of
Court);
Fraud as a Ground for the Issuance of
attachment
Fraud to constitute a ground for attachment in
Sec. 1[d] of Rule 57 of the Rules of Court, it must
be shown that the debtor in contracting the debt
or incurring the obligation intended to defraud
the creditor. (Republic v. Mega Pacific eSolutions,
Inc., G.R. No. 184666, June 27, 2016)
Fraud cannot ne pressumed from a party’s mere
failure to comply with his or her obligation and in
all avernments of fraud, the circumstances
constituting it must be stated with particularity
(Tan, Civil Procedure: A Guide For the Bench and
the Bar, Book III, 2022 Ed., p. 65; Tsuneishi
Heavy Industries (Cebu), Inc. v. MIS Maritime
Corp., G.R. No. 193572, April 4, 2018)
The applicant for a writ of preliminary attachment
must sufficiently show the factual circumstances
of the alleged fraud because fraudulent intent
cannot be inferred from the debtor's mere non-
payment of the debt or failure to comply with his
obligation. (Chua v. China Banking Corp., G.R.
No. 202004, November 4, 2020, J. Hernando)
To sustain an attachment on this ground, it must
be shown that the debtor in contracting the debt
or incurring the obligation intended to defraud
the creditor. The fraud must relate to the
execution of the agreement and must have been
the reason which induced the other party into
giving consent which he[/she] would not have
otherwise given. To constitute a ground
for attachment in Section 1(d), Rule 57 of
the Rules of Court, fraud should be committed
upon contracting the obligation sued upon. A
debt is fraudulently contracted if at the time of
contracting it the debtor has a preconceived plan
or intention not to pay. (ibid.)
Unenforceability of the contract and the veracity
of private respondent's allegation of fraud
pertains to the merits of the main action and are
not to be taken up in resolving the motion to
discharge, lest we run the risk of deciding or
prejudging the main case and force a trial on the
merits at this stage of the proceedings.
(Municipality of Hagonoy, Bulacan v. Dumdum,
Jr., G.R. No. 168289, March 22, 2010)
Issuance and Contents of an Order of
Attachment
Writ of attachment may be issued ex parte
An order of attachment may be issued either ex
parte or upon notice and hearing by the court in
which the action is pending, or by the Court of
Appeals or Supreme Court (Rule 57, Sec. 2).
It may be issued ex parte because to require
notice to the adverse party would defeat the
purpose of attachment and enable the adverse
party to abscond or dispose of the property
before the issuance of the writ (M. De Leon,
Remedial Law Reviewer-Primer, 2021, p. 299
citing Mindanao Savings and Loan Association,
Inc. vs. CA, G.R. 84481, April 18, 1989)
Who ay avail
(1) Plaintiff; or
(2) Any proper party. (Sec. 1, Rule 57, Rules of
Court)
A writ of preliminary attachment may be issued
in favor of a defendant who sets up a
counterclaim. (De Borja v. Platon, G.R. No.
48080, 1942)
308
When Available
(1) At the commencement of the action; or
(2) At any time before entry of judgment. (Sec.
1, Rule 57)
A party to a suit may, at any time after filing the
complaint, avail of the provisional remedies under
the Rules of Court, and, specifically, Rule 57 on
preliminary attachment speaks of the grant of the
remedy “at the commencement of the action or
at any time thereafter.”
This phrase refers to the date of filing of the
complaint which is the moment that marks “the
commencement of the action.” The reference
plainly is to a time before summons is served on
the defendant, or even before summons issues.
(Mangila vs. Court of Appeals, G.R. No. 125027,
August 12, 2002)
When Issued
It should be resorted to only when necessary and
as a last remedy because it exposes the debtor to
humiliation and annoyance. 11 It must be
granted only on concrete and specific grounds
and not merely on general averments quoting the
words of the rules. 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 Corp. v. Wolfe,
G.R. No. 181721, September 9, 2015)
Courts that can issue an order of attacment
An order of attachment may be issued by the
following:
(1) By the Court in which the action is pending;
(2) Court of Appeals;
(3) The Supreme Court (Tan, Civil Procedure: A
Guide for the Bench and the Bar, Book III,
2022 Ed., p. 79)
Requisite for issuance of writ of attachment;
Attachment bond
An attachment bond is a pre-requisite to the
issuance of a writ of attachment. Until the
attachment is discharged or lifted in accordance
with law, the bond continues to be valid even
when the premium is not paid. (Sec. 3, Rule 57)
Issuance and contents of order of
attachment
An order of attachment may be issued either:
(1) ex parte
Note: Ex parte grant of the writ is allowed
because it is possible that during the course of
the hearing, the part against whom the writ is
sought may dispose of his property or abscond
before the writ is issued (Filinvest Credit
Corporation vs. Relova, G.R. No. L-50378,
September 30, 1982)
(2) upon motion with notice and hearing. (Sec.
2, Rule 57)
An order of attachment may be issued by:
1. the court in which the action is pending, or
2. the Court of Appeals; or
3. the Supreme Court. (Sec. 2, Rule 57)
An order of attachment must require the
sheriff of the court to attach:
1. the property in the Philippines;
2. the property of the party against whom the
writ is issued;
3. the property not exempt from execution;
4. the property as may be sufficient to satisfy the
applicant’s demand. (Sec. 5, Rule 57)
Except if such party (1) makes a deposit or (2)
gives a bond. The amount of the deposit or bond
is in an amount equal to that fixed in the order of
attachment which may be:
a. the amount sufficient to satisfy the
applicant’s demand; or
b. the value of the property to be attached as
309
 stated by the applicant, exclusive of costs.
(Sec. 2, Rule 57)
Manner of Attaching Property; Rule on Prior or
Several writs may be issued at the same time to
Contemporaneous Service of Summons
the sheriffs of the courts of different judicial
regions. (Sec. 2, Rule 57)
General No levy on attachment
Rule: pursuant to the writ issued
Requirements in filing Preliminary Attachment under Section 2, Rule 57 shall
be enforced unless preceded,
An order of attachment shall be granted only or contemporaneously
accompanied by service upon
when it appears:
the defendant within the
1. By the affidavit of the applicant or affidavit Philippines of the following
of some other person who personally knows documents:
the facts: (1) Summons;
a. that a sufficient cause of action exists, (2) A copy of the complaint;
b. that the case is one of those mentioned (3) The application for
in section 1 hereof, attachment;
c. that there is no other sufficient security (4) The applicant’s affidavit
for the claim sought to be enforced by and bond; and
the action, and (5) The order and writ of
d. that the amount due to the applicant, or attachment. (Sec. 5, par.
the value of the property the possession 1, Rule 57)
of which he is entitled to recover, is as
much as the sum for which the order is
granted above all legal counterclaims.
(Sec. 3, Rule 57; Chua v. China Banking The purpose of the service is
Corp., G.R. No. 202004, November 4, to acquire jurisdiction over the
2020, J. Hernando) person of the defendant.
Exceptions: Prior or contemporaneous
2. Applicant’s bond. – The party applying for service of summons shall NOT
the order of attachment must thereafter give apply where:
a bond: (1) The summons could not be
a. executed to the adverse party; served personally despite
b. in the amount fixed by the court in its diligent efforts;
order granting the issuance of the writ, (2) The summons could not be
c. conditioned that the adverse party will served by substituted
pay: service despite diligent
i. all the costs which may be adjudged efforts; or
to the adverse party; and (3) The defendant is a resident
ii. all damages which he may sustain of the Philippines
by reason of the attachment, if the temporarily absent
court shall finally adjudge that the therefrom; or
applicant was not entitled thereto. (4) The defendant is a non-
resident of the Philippines;
The affidavit, and the bond required must be duly or
(5) The action is one in rem; or
filed with the court before the order issues. (Sec.
3, Rule 57)

310
 (6) The action is one in quasi
in rem. (Sec. 5, par. 2 Rule
57).
In exceptions 1 to 3, the
principal action may be an
action in personam. If the
court issues a writ of
preliminary attachment, it
converts the action in
personam into an action quasi
in rem.
In actions in rem and quasi in
rem, jurisdiction over the
person of the defendant is not
required. What is required is
jurisdiction over the res
although summons must also
be served on the defendant in
order to satisfy due process
requirements. (De Pedro v.
Romasan, G.R. No. 194751,
2014)
No Retroactivity of Belated Service of
Summons
The effect of subsequent service of summons,
when an attachment is issued before the court
has acquired jurisdiction over the person of the
defendant, is that the 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.
Satsatin, G.R. No. 166759, November 25, 2009) .
Manner of Attaching Property; Attachment of
Real and Personal
The sheriff enforcing the writ shall attach only so
much of the property in the Philippines of the
party against whom the writ is issued as may be
sufficient to satisfy the applicant’s demand,
unless:
(1) The party against whom the writ is issued
makes a deposit with the court from which
the writ is issued; or
(2) The party against whom the writ is issued
gives a counter-bond executed to the
applicant,
The counter-bound is in an amount equal:
(1) To the bond fixed by the court in the order
of attachment; or
(2) To the value of the property to be attached,
exclusive of costs. (Sec. 5, par. 1, Rule 57,
Rules of Court)
The sheriff enforcing the writ shall attach the in
the Philippines without delay and with all
reasonable diligence.
After enforcing the writ, the sheriff must make a
return without a delay to the court from which
the writ was issued.
The contents of the return are:
(1) A full statement of his proceedings under the
writ;
(2) A complete inventory of the property
attached;
(3) Any counter-bond given by the party against
whom attachment is issued; and
(4) The sheriff must serve copies of the above
document on the applicant.
Section 5 of the same Rule likewise states
that "the sheriff enforcing the writ shall
without delay and with all reasonable
diligence attach, to await judgment and
execution in the action, only so much of the
property in the Philippines of the party
against whom the writ is issued, not exempt
from execution, as may be sufficient to
satisfy the applicant's demand, unless the
former makes a deposit with the court
311
 from which the writ is issued, or gives a
counter-bond executed to the
applicant, in an amount equal to the
bond fixed by the court in the order of
attachment or to the value of the
property to be attached, exclusive of
costs."
From the foregoing, it is evidently clear that
once the writ of attachment has been issued,
the only remedy of the petitioners in lifting
the same is through a cash deposit or the
filing of the counter-bond. Thus, the Court
holds that petitioner's argument that it has
the option to deposit real property instead of
depositing cash or filing a counter-bond to
discharge the attachment or stay the
implementation thereof is unmeritorious.
(Luzon Development Bank v. Krishnan, G.R.
No. 203530 , April 13, 2015)

Summary of Manner of Attachment

Real and personal property shall be attached by the sheriff executing the writ in the following manner:

PROPERTY TO BE ATTACHED AND ITS MANNER OF ATTACHMENT

DESCRIPTION

For real Standing on the record of the (1) By filing with the Registry of Deeds of the following
property, or registry of deeds of the documents:
growing crops province: (a) a copy of the order;
(b) a description of the property attached, and
thereon, or (1) in the name of the party
(2) A notice that the property is attached, or that such
any interest against whom attachment
real property and any interest therein held by or
therein (Sec. is issued, or
standing in the name of such other person are
(2) not appearing at all upon
7[a], Rule 57) attached, and
such records, or
(3) By leaving a copy of such order, description, and
(3) belonging to the party
notice:
against whom attachment
(a) With the occupant of the property, if any, or
is issued and held by any
(b) with such other person or his agent if found
other person, or
within the province.
(4) in the name of any other
person

312
 PROPERTY TO BE ATTACHED AND ITS MANNER OF ATTACHMENT
DESCRIPTION

Where the property has been
brought under the operation
of either:
(1) the Land Registration Act
or
(2) the Property Registration
Decree
The notice shall contain a reference to:
(1) the number of the certificate of title,
(2) the volume and page in the registration book where
the certificate is registered, and
(3) the registered owner or owners thereof.
The registrar of deeds must index attachments filed
under this section in the names of:
(1) the applicant,
(2) the adverse party, or
(3) the person by whom the property is held or
(4) in whose name it stands in the records.

If the attachment is not claimed on the entire area of the

land covered by the certificate of title the registration of
such attachment shall include:
(a) a description sufficiently accurate for the
identification of the land; or
(b) a description sufficiently accurate for the
identification of interest to be affected.
Personal capable of manual delivery By taking and safely keeping it under custody, after
Property (Sec. issuing a corresponding receipt of the personal property.
7[b], Rule 57)
Note: Attachment is not allowed for a secured transaction
because one requirement in the issuance thereof is that
the debtor does not have sufficient security (Tan, Civil
Procedure: A Guide For the Bench and the Bar, Book III,
2022 Ed., p. 99 citing Salgado, v. Court of Appeals, G.R.
No. 55381, March 26, 1984)
Stocks or By leaving the following documents:
shares, or (a) copy of the writ; and
an interest in (b) notice stating that the stock or interest of the party
stocks or against whom the attachment is issued is attached
in pursuance of such writ;
shares, of any
corporation or
The following persons can receive the above-mentioned
company (Sec.
documents:
7[c], Rule 57)
(1) the president or
(2) managing agent

313
 PROPERTY TO BE ATTACHED AND ITS MANNER OF ATTACHMENT
DESCRIPTION
Debts and Including: By leaving the following documents:
credits (Sec. (1) bank deposits, (1) copy of the writ; and
7[d], Rule (2) financial interest, (2) notice that the following are attached in pursuance
57) (3) royalties, of the Writ of Attachment:
(4) commissions, and (a) The debts owing by him to the party against
(5) other personal property whom attachment is issued;
not capable of manual (b) The credits and other personal property in his
delivery possession or under his control, belonging to
said party.

The following persons can receive the above-mentioned

documents:
(1) the person owing such debts or
(2) The person having in his possession or control,
such credits or other personal property, or
(3) with his agent

Note: It has been held that in the attachment of debts

and credits, not only the debtor of the judgment debtor,
or whoever holds the credit, should be notified, but also
the judgment debtor himself, in order that the sale of
his right to said debt or credit may be valid. (Asia
Banking Corp. v. Elser, G.R. No. 30266, March 25, 1929)
Effect of attachment of debts, credits and all
other similar properties

All persons having in their possession or under their

control
(1) any credits or other similar personal property
belonging to the party against whom attachment
is issued, or
(2) owing any debts to him, at the time of service upon
them of the copy of the writ of attachment and
notice as provided in the last preceding section,

Shall be liable to the applicant for the amount of such

credits, debts or other similar personal property.

They shall be liable until:

(1) the attachment is discharged, or
(2) any judgment recovered by him is satisfied, unless
such property is delivered or transferred, or

314
 PROPERTY TO BE ATTACHED AND ITS MANNER OF ATTACHMENT
DESCRIPTION
(3) such debts are paid to the clerk, sheriff, or other
proper officer of the court issuing the attachment.
(Sec. 8, Rule 57)

Examination of party whose property is attached

and persons indebted to him or controlling his
property; delivery of property to sheriff.

Any person owing debts to the party whose:

(1) property is attached or
(2) having in his possession or under his control any
credit or other personal property belonging to such
party, may be required
(a) to attend:
i. before the court in which the action is
pending, or
ii. before a commissioner appointed by the
court, and
(b) be examined on oath respecting the same.

The party whose property is attached:

(1) Maybe required to attend for the purpose of giving
information respecting his property, and
(2) may be examined on oath.

After such examination, the court may:

(1) order personal property
(a) capable of manual delivery belonging to him,
(b) in the possession of the person so required to
attend before the court,
(2) to be delivered to the clerk of the court or sheriff
on such terms as may be just,
(a) having reference to any lien thereon or claim
against the same,
(b) to await the judgment in the action. (Sec. 10,
Rule 57)
Interest in whether as: By serving the executor, administrator or other personal
property (1) heir, representative of the decedent the following:
belonging to (2) legatee, or (1) copy of the writ; and,
the estate of (3) devisee, (2) notice that said interest is attached
the decedent
A copy of the writ of attachment and notice shall also
be filed in the office of the clerk of court in which said

315
 PROPERTY TO BE ATTACHED AND ITS MANNER OF ATTACHMENT
DESCRIPTION
(Sec. 7[e], estate is being settled. The same shall likewise be
Rule 57) served upon the heir, legatee or devisee concerned.

Effect of attachment of interest in property

belonging to the estate of the decedent

It shall not impair 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 (Sec. 9,
Rule 57).
Property in By filing
custodia legis (1) a copy of the writ of attachment with the proper
(Sec. 7, last court or quasi-judicial agency, and
par.) (2) 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, 2016 ed.,
pp. 38-39)

316

Instances where the property attached
may be sold after levy before entry of
judgment
Whenever it shall be made to appear to the court
in which the action is pending, upon hearing with
notice to both parties, the property may be sold
in case:
(1) that the property attached is perishable, or
(2) that the interests of all the parties to the
action will be subserved by the sale thereof.
The court in the above instances may:
(1) order such property to be sold at public
auction in such manner as it may direct, and
(2) the proceeds of such sale to be deposited in
court to abide the judgment in the action.
(Rule 57, Sec. 11)
Remedy of the party whose property has
been attached
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on
the security given. (Rule 57, Sec. 12)
Requirements for the Discharged of the
Attachment
The court shall, after due notice and hearing,
order the discharge of the attachment subject to
the condition that:
(a) The movant makes a cash deposit, or files a
counter-bond executed to the attaching
party with the clerk of the court where the
application is made, in an amount equal to
that fixed by the court in the order of
attachment, exclusive of costs.
(b) But if the attachment is sought to be
discharged with respect to a particular
property, the counter-bond shall be equal to
the value of that property as determined by
the court.
(c) In either case, the cash deposit or the
counter-bond shall secure the payment of
any judgment that the attaching party may
recover in the action. A notice of the deposit
shall forthwith be served on the attaching
party. (Rule 57, Sec. 12)
Effects of Discharged of the Attachment
Upon the discharge of an attachment in
accordance with the provisions of this section it
has the following effects:
(1) the property attached, or the proceeds of
any sale thereof, shall be delivered to the
party making the deposit or giving the
counter-bond, or to the person appearing on
his behalf;
(2) the deposit or counter-bond aforesaid
standing in place of the property so released.
Should such counter-bond for any reason be
found to be or become insufficient, and the party
furnishing the same fail to file an additional
counter-bond, the attaching party may apply for
a new order of attachment. (Rule 57, Sec. 12)
Remedies available to a third-party with a
claim to title or possession of property
which is attached
The remedies of the third-party are:
(1) Third-party claim or terceria under (Rule 57,
Sec. 14)
(2) Motion to intervene. This is because the third
party "is so situated as to be adversely
affected by a distribution or other disposition
of property in the custody of the court, or of
an officer thereof." (Rule 19, Sec. 1). Also,
under Rule 57, Sec. 14 on third-party claim,
it is provided that "nothing herein contained
shall prevent such claimant or any third
person from vindicating his claim to the
317
 property ... in the same or a separate demand of the officer, files a bond approved
action." by the court to indemnify the third-party
(3) An action to claim damages on the indemnity claimant in a sum not less than the value of
bond if one is filed. the property levied. The sheriff shall not be
(4) A separate action to recover possession of liable for damages for the taking or keeping
the property from the officer or the of the property to any third- party claimant
purchaser at the execution sale. (Riguera, if the indemnity bond is filed.
Primer-Reviewer on Remedial Law, 2022, (4) A claim for damages for the taking or
pp. 825-826) keeping of the property may be enforced by
the third-party against the bond provided he
The remedies are cumulative and any one of files an action within 120 days from the filing
them may be resorted to without availing of the of the bond. (Riguera, Primer-Reviewer on
Remedial Law, 2022, p. 825)
other remedies. (Ching v. CA, G.R. No. 124642,
February 23, 2004).
Exemption from Bond Requirement in
Terceria
The third party cannot appeal nor avail of
certiorari as a remedy in the event that his claim
When the writ of attachment is issued in favor of
is denied since he is a non-party to the original
the Republic of the Philippines, or any officer duly
action (Power Sector Assets and Liabilities
representing it, the filing of such bond shall not
Management Corporation [PSALM] vs. Maunlad
be required, and in case the sheriff is sued for
Homes, Inc., G.R. No. 215933, February 8, 2017).
damages as a result of the attachment, he shall
be represented by the Solicitor General, and if
Terceria (Third-party claim) held liable therefor, the actual damages adjudged
by the court shall be paid by the National
A remedy afforded to a third-party with a claim to Treasurer out of the funds to be appropriated for
property levied, attached, or seized by virtue of the purpose. (M. De Leon, Remedial Law
court order, wherein the third-party makes an Reviewer-Primer, 2021, p. 307)
affidavit of his title or right of possession to the
property and serves the affidavit upon the court Distinction between Counterbond and
officer and a copy upon the party procuring the Applicants Bond
levy, attachment, or seizure. It is available to a
Counterbond Applicant’s Bond
third-party in cases of levy on execution, Rule 39, As to who posts
Sec. 16), attachment (Rule 57, Sec. 14), and posted by the party posted by the
replevin (Rule 60, Sec. 7) (Riguera, Primer- against whom applicant
Reviewer on Remedial Law, 2022, p. 824) attachment is issued
As to purpose
aims to prevent or to obtain a writ of
Procedure for Making a third-party claim discharge a preliminary
(1) The third-party shall make an affidavit preliminary attachment
showing his title to or right of possession attachment
over the property. As to liability of Bond
(2) He shall serve the affidavit upon the court secures the payment shall answer for all
officer and a copy upon the attaching party. of the judgment the costs which may
(3) The sheriff is not bound to keep the which the applicant be adjudged to the
property, unless the attaching party, on may be entitled to. adverse party and all

318
 damages which he (5) The property attached is exempt from
may sustain by execution, hence exempt from preliminary
reason of the attachment (Rule 57, Sec. 2 & 5); or
attachment, if the (6) The judgment is rendered against the
court shall finally attaching creditor. (Rule 57, Sec. 19);
adjudge that the
applicant was not
Procedure for discharge of attachment
entitled thereto
upon giving counter-bond
As to requirement of Notice and Hearing
to Surety
the sureties thereon must be enforced by When the writ of attachment is issued upon a
are forthwith charged an application after ground which is at the same time the applicant’s
under the judgment motion with due cause of action, the only other way the writ can
and their liability may notice has been given
be lifted or dissolved is by a counterbond.
be recovered after to the applicant and
notice and summary the sureties and after (Chuidian v. Sandiganbayan, G.R. No. 139941,
hearing in the same proper hearing January 19, 2001)
action
(Riguera, Primer-Reviewer on Remedial Law, After a writ of attachment has been enforced,
2022 Ed., pp. 828-829) (1) the party whose property has been attached,
or the person appearing on his behalf, may
Grounds to Discharge Preliminary move for the discharge of the attachment
wholly or in part on the security given.
Attachment
(2) The court shall, after due notice and hearing,
order the discharge of the attachment if:
After a writ of attachment has been enforced, the (a) The movant makes a cash deposit, or
party whose property has been attached, or the (b) The movant files a counter-bond
person appearing on his behalf, may move for the executed to the attaching party with the
discharge of the attachment wholly or in part on clerk of the court where the application
the security given. is made, in an amount equal to that
fixed by the court in the order of
(1) The court shall, after due notice and hearing,
attachment, exclusive of costs.
order the discharge of the attachment if:
(3) But if the attachment is sought to be
(a) The movant makes a cash deposit, or
discharged with respect to a particular
(b) The movant files a counter-bond
property, the counter-bond shall be equal to
executed to the attaching party with the
the value of that property as determined by
clerk of the court where the application
the court.
is made, in an amount equal to that
(4) In either case, the cash deposit or the
fixed by the court in the order of
counter-bond shall secure the payment of
attachment, exclusive of costs. (Rule
any judgment that the attaching party may
57, Sec. 12)
recover in the action.
(2) The attachment was improperly or
(5) A notice of the deposit shall forthwith be
irregularly issued as where there is no
served on the attaching party.
ground for attachment under Section 1 of
(6) Upon the discharge of an attachment, the
this Rule (Rule 57, Sec. 13);
property attached, or the proceeds of any
(3) The bond filed is defective or insufficient
sale thereof, shall be delivered:
(Rule 57, Sec. 13);
(a) To the party making the deposit or
(4) The attachment is excessive, but the
(b) To the party giving the counter-bond,
discharge shall be limited to the excess (Rule
or
57, Sec. 13);

319
 (c) To the person appearing on his behalf, (Chuidian vs. Sandiganbayan, G.R. No.
the deposit or counter-bond aforesaid 139941, January 19, 2001)
standing in place of the property so (a) How: Motion and hearing is necessary
released. (Secs. 12 & 13, Rule 57)
(7) Should such counter-bond for any reason be (b) When filed: before or after levy or after
found to be or become insufficient, and the release of attached property. (Sec. 13,
party furnishing the same fail to file an Rule 57)
additional counter-bond, the attaching party (c) Burden of proof: the attaching creditor
may apply for a new order of attachment. must show that the writ was properly
(Sec. 12, Rule 57, Rules of Court) issued. (Filinvest Credit Corp. v. Relova,
G.R. No. L-50378, 1982).
Procedure by which a writ of preliminary
attachment may be dissolved: Claim for Damages on account of
improper, irregular or excessive
The procedure by which a writ of preliminary attachment
attachment may be dissolved is prescribed in When to file if a When to file a
the Rules of Court. The law limits the various claim for damages claim if the
modes upon which an attachment may be on account of judgment of the
discharged to the following: improper or appellate court is
(1) posting a cash bond or counter-bond; excessive favorable to the
(2) proving that the attachment bond was attachment party against
improperly or irregularly issued or enforced, whom the
or the bond is insufficient; or attachment was
(3) proving the attachment is excessive. (Coca- issued
Cola Femsa Philippines, Inc. v. Pacific Sugar (1) Before the trial (1) He must claim
Holdings Corp., G.R. No. 241333, June 27, (2) Before appeal is damages
2022) perfected or sustained during
(3) Before the the pendency of
judgment the appeal by
(1) Posting a cash bond or counter-bond, to file
becomes filling an
a counterbond in accordance with Rule 57,
executory, with application in the
Section 12;
due notice to the appellate court
(a) How: Discharge is not automatic. There
attaching obligee with notice to the
must be due notice served on the
or his surety or party in whose
attaching party and hearing and an order
surities, setting favor the
issued by the court. Should it involve a
forth the facts attachment was
cash deposit, a notice of the deposit shall
showing his right issued or his
likewise be served on the attaching party.
to damages and surety or sureties,
(Sec. 12, Rule 57)
the amount before the
(b) When:
thereof. Such judgment of the
i. Before enforcement of the writ (Sec.
damages may be appellate court
2, Rule 57);
awarded only become
ii. During enforcement of the writ (Sec.
after proper executory;
5, Rule 57);
hearing and shall (2) The appellate
iii. After enforcement of the writ. (Sec.
be included in the court may allow
12, Rule 57)
judgment on the the application to
(2) To quash the attachment on the ground that
main case. be heard and
it was irregularly or improvidently issued, as
decided by the trial
provided for in Section 13 of the same Rule.
court.

320
Nothing herein contained shall prevent the party Satisfaction of Judgment out of Property
against whom the attachment was issued from Attached
recovering in the same action the damages
awarded to him from any property of the General Rule Exception
attaching party not exempt from execution If judgment is in Even before
should the bond or deposit given by the latter be favor of the attaching judgment is entered
insufficient or fail to fully satisfy the award. (Sec. party and execution in favor of the
20, Rule 57, Rules of Court) has issued thereon, attaching party, the
the sheriff may cause court may order such
the judgment to be property to be sold at
Recovery of damages under Sec. 17 vs Sec. satisfied out of the public auction in such
20 property attached, if manner as the court
it be sufficient for may direct, and the
The difference lies with the kind of damages that purpose, in the proceeds of such sale
being recovered. following manners: to be deposited in
(1) Payment to court to abide the
judgment obligee judgment in the
Surety Bond Cash Deposit or the proceeds of all action whenever it
(Sec. 20, Rule 57) Counter-bond sales of perishable shall be made to
(Sec. 17, Rule 57) or other property appear to the court in
in pursuance of which the action is
The surety bond shall On the other hand, the order of the pending, upon
answer for all the Sec. 17 in relation to court or so much hearing with notice to
costs which may be Sec. 12, the cash necessary to both parties, that
adjudged to the deposit or the satisfy the the:
adverse party and all counter-bond shall judgment; (a) Property
damages which he secure the payment of (2) If any balance attached is
may sustain by reason any judgment that the remains, selling so perishable, or
of the attachment. In attaching party may much of the (b) Interests of all
other words, the recover in the action. property, real or the parties to the
damages sought to be Stated differently, the personal as may action will be
enforced against the damages sought to be be necessary to subserved by the
surety bond are charged against the satisfy the sale thereof.
unliquidated. (Sec. 20 surety bond are judgment; (Rule 57, Sec.
in relation to Sec. 4, liquidated. (Sec. 20 in (3) Collecting from all 11)
Rule 57; Excellent relation to Sec. 4, Rule persons having
Quality Apparel, Inc. 57; Excellent Quality possession of
vs. Visayan Surety & Apparel, Inc. vs. credits belonging
Insurance Visayan Surety & to the judgment
Corporation, G.R. No. Insurance obligor or debts
212025, July 01, Corporation, G.R. No. belonging to the
2015) 212025, July 01, latter at the time
2015). of the attachment
and paying the
Should the bond or deposit be insufficient to fully proceeds to
satisfy the award of damages, the party against judgment obligee
whom the attachment was issued may recover (Rule 57, Sec. 15);
from any property of the attaching party not
exempt from execution (Rule 57, Sec. 19).

321
(4) Ordinary
execution (Rule
57, Sec. 16)
NOTE: If it remains
unsatisfied, recovery
may be had on the
counter-bond upon
demand and notice
and hearing to surety
(Rule 57, Sec. 17).
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).
Disposition of attached property where
judgment is for party against whom
attachment was issued
If judgment be rendered against the attaching
party, all the proceeds of the sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such sheriff's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. (Rule 57, Sec. 19)
C. PRELIMINARY INJUNCTION
(RULE 58)
Preliminary injunction is an order granted at
any stage of an action, prior to the judgment or
final order: Requiring a party, court, agency or
person to perform; or refrain from performing a
particular act or acts (Rule 58, Sec. 1).
Section 1, Rule 58 of the Rules of Court defines a
preliminary injunction as an order granted at any
stage of an action prior to the judgment or final
order requiring a party, court, agency, or person
to refrain from a particular act or acts. It may also
require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction. (Sumifru
(Philippines) Corp. v. Spouses Cereño, G.R. No.
218236 (Resolution), February 7, 2018)
The ancillary character of the writs
of preliminary injunction and TROs also finds
black letter support in our rules of procedure.
Sections 1, 2 and 5, Rule 58 of the Rules of
Court — which define and describe the precise
circumstances under which a writ
of preliminary injunction and TRO may be
granted — all assume the prior existence of a
322
main action or proceeding before such writ and
order may be granted. Any preliminary writ
cannot survive the resolution of the main case of
which it is an incident because an ancillary writ
"loses its force and effect after the decision in the
main petition." When a main action is dismissed,
any provisional remedy in this case is dissolved.
It then follows that once a decision disposing of
the main case becomes final and executory, any
disposition by a court on the propriety of a TRO
and WPI issued in the case serves no practical
purpose and renders such a disposition moot and
academic. (Banco Filipino Savings and Mortgage
Bank v. Bangko Sentral ng Pilipinas, G.R. No.
200642, April 26, 2021, J. Hernando)
Characteristics of preliminary injunction
Injunction is a judicial writ, process or proceeding
whereby a party is directed either to do a
particular act, in which case it is called a
mandatory injunction, or to refrain from doing a
particular act, in which case it is called a
prohibitory injunction." "It may be the main
action or merely a provisional remedy for anal as
an incident in the main action." (Republic v.
Cortez, Sr., G.R. No. 197472, September 7, 2015)
Nature and concept of preliminary
injunction
Temporary Restraining Orders and Writ of
Preliminary Injuctions “constitute temporary
measures availed of during the pendency of the
action" and are "preservative remedies for the
protection of substantive rights" of the parties.
They are ancillary because "they are mere
incidents in and are dependent upon the result of
the main action." Ancillary writs are not causes of
action in themselves; they are mere adjuncts to
the main suit with the sole object of preserving
the status quo until the merits of the case can be
heard. Being ancillary in nature, the existence of
a main action or proceeding is a condition sine
qua non before a WPI or TRO may lie.
Thus, any preliminary writ cannot survive the
resolution of the main case of which it is an
incident because an ancillary writ "loses its force
and effect after the decision in the main
petition." When a main action is dismissed, any
provisional remedy in this case is dissolved. It
then follows that once a decision disposing of the
main case becomes final and executory, any
disposition by a court on the propriety of a TRO
and WPI issued in the case serves no practical
purpose and renders such a disposition moot and
academic.(Banco Filipino Savings and Mortgage
Bank v. Bangko Sentral ng Pilipinas, G.R. No.
200642, April 26, 2021, J. Hernando)
The purpose of injunction is to prevent
threatened or continuous irremediable injury to
the parties before their claims can be thoroughly
studied, and its sole aim is to preserve the status
quo until the merits of the case are fully heard.
The issuance of a writ of preliminary injunction is
governed by Rule 58 of the Rules of Court. (City
Government of Caloocan v. Carmel Development,
Inc., G.R. No. 240255, January 25, 2023, J.
Hernando citing Philippine Charity Sweepstakes
Office v. TMA Group of Companies Pty. Ltd., G.R.
Nos. 212143, 225457, & 236888, August 28,
2019)
The application for the writ rests upon an alleged
existence of an emergency or of a special reason
for such an order to issue before the case can be
regularly heard, and the essential conditions for
granting such temporary injunctive relief are
that the complaint alleges facts that appear to be
sufficient to constitute a cause of action
for injunctionand that on the entire showing from
both sides, it appears, in view of all the
circumstances, that the injunction is reasonably
necessary to protect the legal rights of plaintiff
323
pending the litigation. (City of Iloilo v. Honrado,
G.R. No. 160399, December 9, 2015)
Preliminary injunction may either be prohibitory,
when it bars an act, or mandatory, when it
requires the performance of a particular act. As
an interlocutory order, it is a provisional remedy,
temporary in nature. It is ancillary, an incident
adjunct to a main action. Contrary to petitioner's
claim, preliminary injunction is "subject to the
final disposition of the principal action." The trial
court's order issuing the injunction is neither a
judgment on the merits nor a final disposition of
the case. (Municipality of Famy, Laguna v.
Municipality of Siniloan, Laguna, G.R. No.
203806, February 10, 2020)
It is also referred to as a preservative remedy
for the protection of substantive rights and
interests while the main action is pending. In a
sense, they are regulatory processes meant to
prevent a case from being mooted by the interim
acts of the parties. (Morales v. Court of Appeals,
G.R. Nos. 217126-27, November 10, 2015).
Thus, the findings of fact and opinion of a court
when issuing the writ of preliminary injunction are
interlocutory in nature and made before the trial
on the merits is commenced or terminated.
(Riano, Civil Procedure, Vol. II, 2019, p. 53).
Essential requisites
The essential requisites for the grant of a writ
of preliminary injunction are the following:
(1) the applicant must have a clear and
unmistakable right to be protected, that is, a
right in esse;
(2) there is a material and substantial invasion
of such right;
(3) there is an urgent need for the writ to
prevent irreparable injury to the applicant;
and
(4) no other ordinary, speedy, and adequate
remedy exists to prevent the infliction of
irreparable injury. (City Government of
Caloocan v. Carmel Development, Inc., G.R.
No. 240255, [January 25, 2023, J.
Hernando citing Bicol Medical Center v.
Botor, 819 Phil. 447, 2017)
Quantum of Evidence in Preliminary
Injunction
To satisfy the requisites for the issuance of the
writ, mere prima facie evidence is needed to
establish the clear and unmistakable right, and
the substantial and material invasion thereof;
complete and conclusive proof is not
needed. Injunction should therefore not be
issued "if there is no clear legal right materially
and substantially breached from a prima
facie evaluation of the evidence of the
complainant." (Bureau of Customs v. Court of
Appeals-Cagayan de Oro Station, G.R. Nos.
192809, 193588, 193590-91 & 201650, April 26,
2021, J. Hernando)
It is well settled that the aggrieved party may
challenge the issuance of a writ of preliminary
injunction only on the ground of grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of the issuing
court. Grave abuse of discretion in the issuance
of writs of preliminary injunction implies "a
capricious and whimsical exercise of judgment
that is equivalent to lack of jurisdiction, or where
the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or
personal aversion amounting to an evasion of [a]
positive duty or to a virtual refusal to perform the
duty enjoined, or to act at all in contemplation of
law." (Bureau of Customs v. Court of Appeals-
Cagayan de Oro Station, G.R. Nos. 192809,
193588, 193590-91 & 201650, April 26, 2021, J.
Hernando)
324
 except when there is manifest abuse. (Riano, Civil
Mere prima facie evidence is needed to establish Procedure, Vol. II, 2019, p. 54).
the applicant’s rights or interests in the subject
matter of the main action. It is not required that Kinds of Preliminary Injunction
the applicant should conclusively show that there
was a violation of rights as this issue will still be Preliminary Is an order granted at any
fully litigated in the main case. Thus, an applicant prohibitory stage of the action or
for a writ is required only to show that he has an injunction proceeding prior to the
judgment or final order,
ostensible right to the final relief prayed for in his
requiring a party or court,
complaint. (Municipality of Famy, Laguna v.
agency or a person to refrain
Municipality of Siniloan, Laguna, G.R. No. from a particular act or acts.
203806, February 10, 2020) (Sec. 1, Rule 58)
Preliminary It commands the performance
A writ of preliminary injunction is generally based mandatory of some positive act to correct
solely on initial and incomplete evidence. Only a injunction a wrong in the past (Sps. Dela
‘sampling’ is needed to give the trial court an idea
Rosa vs Heirs of juan Valdez,
G.R. No. 159101, July 27,
of the justification for the preliminary injunction
2011)
pending the decision of the case on the merits. Permanent Is one issued in the judgment
(Riano, Civil Procedure, Volume II, 2019, p. 53) / final in the case permanently
injunction restraining the defendant or
An order granting a preliminary injunction is making the preliminary
based on a preliminary determination of the injunction permanent.
status quo and on petitioner’s entitlement to the (Tan, Civil Procedure: A Guide For the Bench and
writ. (Riano, Civil Procedure, Volume II, 2019, p. the Bar, Book III, 2022 Ed., p. 151)
53)
Injunction as main action
Preliminary Injunction is Discretionary
Injunction is a judicial writ, process or proceeding
The grant or denial of a writ of preliminary whereby a party is directed either to do a
injunction is discretionary upon the trial court particular act, or to refrain from doing a particular
because the assessment and evaluation of act. “It may be the main action or merely a
evidence towards that end involve findings of fact provisional remedy for and as an incident in the
left to the said court for its conclusive main action. (Republic of the Philippines vs. Rev.
determination. (Riano, Civil Procedure, Vol. II, Claudio Cortez, G.R. No. 197472, September 7,
2019, p. 54). 2015)

Rationale: The conflicting claims in an
application for a provisional writ, more often than
not, involve a factual determination which is not
the function of appellate courts. Hence, the
exercise of judicial discretion by the trial court in
injunctive matters must not be interfered with
Jurisdiction over an action for injunction is vested
exclusively in the Regional Trial Court as the
subject of the litigation is incapable of pecuniary
estimation. (See also Sec. 21[1], B.P. Blg. 129).
In the main action for injunction, the petitioner
may apply for the issuance of a writ of preliminary

325
injunction. (Riguera, Primer-Reviewer on petitioners moved to cite the respondents in
Remedial Law, 2022, pp. 828-829) contempt for burying Marcos in the LNMB.

Examples of acts subject to the main action The motion will NOT prosper.
for injunction
The lifting of a writ of preliminary injunction due
Examples of acts which may be enjoined through to the dismissal of the complaint is immediately
the main action of injunction are those mentioned executory even if the dismissal of the complaint
in Art. 26 of the Civil Code of the Philippines: is pending appeal. (Riguera, Primer-Reviewer on
Remedial Law, 2022, p. 853, citing Buyco v.
• Prying into the privacy of another’s residence; Baraquia, December 21, 2009)
• Meddling with or disturbing the private life or
family relations of another; Distinguish preliminary injunction from the
• Intriguing to cause another to be alienated
main action for injunction
from his friends; and
• Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place Preliminary Main action for
of birth, physical defect, or other personal injunction injunction
condition. (Riano, Civil Procedure, Vol. II, As an Action
2019, p. 58) It is not a principal It is a principal action
action and can only and a cause of an
Judgment in action for injunction is exist as an incident to action in itself. It can
a principal action. even be coupled with
immediately executory
(Riano, Civil an application of a
Procedure, 2019, p. writ of preliminary
It is enforceable after its rendition and shall NOT 56, citing Bacolod injunction which is a
be stayed by an appeal taken therefrom, unless City Water District v. provisional remedy.
otherwise ordered by the trial court. The stay of Labayen, 446 SCRA (Riano, Civil
execution shall be upon such terms as to bond or 110, 122; BP Procedure, Vol. II,
otherwise as may be considered proper for the Philippines, Inc. v. 2019, p. 56).
Clark Trading
security or protection of the rights of the adverse
Corporation, G.R. No.
party (Riano, Civil Procedure, Vol. II, 2019, p. 58- 175284, September
59, citing Rule 39, Sec. 4) 19, 2012).
As to what it seeks
Illustration: Petitions for certiorari with A preliminary The main action for
application for preliminary injunction were filed injunction does not injunction seeks a
with the Supreme Court challenging the planned seek a permanent judgment embodying
injunction. a final injunction.
burial of former President Marcos in the Libingan
As to when granted
ng mga Bayani (LNMB). The SC issued a status
A preliminary An injunction as a
quo ante order (SQAO) enjoining the burial. In injunction is an order main action is
due course, the SC rendered a decision dismissing granted at any stage granted after the trial
the petitions. Nothing was said in the decision of an action or of the action if it
regarding the SQAO. The remains of Marcos were proceeding prior to appears that the
buried in the LNMB right after the promulgation the judgment or final applicant is entitled
order (Rule 58, Sec. to have the act or
of the decision and before the filing of motions
1) acts complained of
for reconsideration by the petitioners. The

326
 permanently The hearing for the issuance of a writ of
enjoined, (Rule 58, preliminary injunction is separate and distinct
Sec. 9) from the trial on the merits of the main case
As to basis for injunction. (Juana Complex I Homeowners
A writ of preliminary In an injunction as a Association, Inc. v. Fil-Estate Land, Inc., 667
injunction is generally principal action, the SCRA 440, 453, March 5, 2012)
based solely on initial right and the act (Riano, Civil Procedure, Vol. II, 2019, pp. 56-58)
and incomplete violative thereof must
evidence. Such be established with Purpose of Injunction (Status Quo)
evidence is not absolute certainty to
conclusive for only be a basis for a final
The primary purpose of injunction is to preserve
sampling is needed to and permanent
give the trial court an injunction. (Republic the status quo by restraining action or
idea of the v. Cortez, G.R. No. interference or furnishing preventive relief. (Tan,
justification for the 197472, September Civil Procedure: A Guide For the Bench and the
preliminary injunction 7, 2015) Bar, Book III, 2022 Ed., p. 152)
pending the decision
of the case. (Zuneca
Status Quo is defined as the last actual, peaceful,
Pharmaceutical v.
Natrapharm, Inc., and uncontested status that precedes the actual
G.R. No. 197802, controversy, that which is existing at the time of
November 11, 2015; the filing of the case. (Municipality of Famy,
Far East Bank and Laguna v. Municipality of Siniloan, Laguna, G.R.
Trust Company v. No. 203806, February 10, 2020)
Philippine Deposit
Insurance
It is the primary purpose of injunction in order to
Corporation, G.R. No.
172983, July 22, preserve and protect certain rights and interests
2015; Republic v. during the pendency of an action until the merits
Cortez, G.R. No. of the case can be fully heard. (Castro v. Dela
197472, September Cruz, G.R. No. 190122, Jan. 10, 2011)
7, 2015)
As to Remedy Note: Matters resolved in injunction proceeding
The findings of fact A judgment for a
do not, as a general rule, conclusively determine
and opinion of a permanent injunction
court when issuing suit should be the merits of the main case or decide
the writ of assailed by a timely controverted facts therein. (Riano, Civil
preliminary injunction appeal (Casilan v. Procedure, Volume II, 2019, p. 51, citing
are interlocutory in Ibañez, 6 SCRA 590, Philippine Ports Authority [PPA] v. Nasipit
nature. (Recto v. 592-593) Integrated Arrastre and Stevedoring Services,
Escaler, 634 SCRA Inc. [NIASSI], G.R. No. 214864, March 22, 2017).
180, 191) Hence, the
order of the court
may be challenged by Status Quo Order
a petition for An order that directs the maintenance of the
certiorari under Rule condition prevailing before the promulgation of
65. (Rule 41, Sec. the assailed decision or the status quo ante. (M.
1[b]) De Leon, Remedial Law Reviewer-Primer, 2021,
As to hearing p. 313)

327
 Temporary
A status quo order is "in the nature of a cease Status quo ante order Restraining
and desist order," and is "intended to maintain Order (TRO)
the last, actual, peaceable and uncontested state A status quo ante order is TRO is issued
an equitable remedy motu proprio.
of things which preceded the controversy." If the
intended to maintain the
RTC granted the spouses De Jesus' prayer for status quo ante (i.e., the
such order, Land Bank will be prevented from last actual, peaceable,
consolidating its ownership over the properties uncontested state of
for the duration of such order. (Land Bank of the things which preceded the
Philippines v. Spouses De Jesus, G.R. No. 221133, controversy)
June 28, 2021, J. Hernando) No bond is required for its Bond is required
issuance. for its issuance.
(Riguera, Primer-Reviewer on Remedial Law, Civil
When Status Quo Order is Issued
Procedure, Vol. 1, 2022 Ed., pp. 832-833, citing
This was resorted to when the projected
Mega-World Properties & Holdings Inc. v.
proceedings in the case made the conservation of
Majestic Finance & Investment Co., G.R. No.
the status quo desirable or essential, but the
169694, December 9, 2015)
affected party neither sought such relief or the
allegations in his pleading did not sufficiently
Illustration: In a dispute between a developer and
make out a case for a temporary restraining
the landowner, the trial court issued a status quo
order. The status quo order was thus issued motu
ante order directing the developer to post security
proprio on equitable considerations. (Megaworld
guards on the property subject of the joint-
vs. Majestic, G.R. No. 169694, December 09,
venture agreement. Here, the issuance of a
2015 citing Regalado).
status quo ante order is not proper because the
LAPUS was that there were no security guards in
Nature of a Status Quo Order
the premises. Further, the said order by its nature
cannot require the doing (or undoing of acts).
Unlike a TRO or a preliminary injunction, a status
(ibid.)
quo order is more in the nature of a cease-and-
desist order, since it neither directs the doing or
Distinguish preliminary prohibitory
undoing of acts as in the case of prohibitory or
injunction from petition for prohibition
mandatory injunctive relief. (ibid)

Preliminary
Status Quo Order on posting of a bond Petition for
prohibitory
prohibition
injunction
The further distinction is provided by the present Not a main or Special civil action
amendment in the sense that, unlike the independent action and independent
amended rule on restraining orders, a status quo (provisional remedy) action
order does not require the posting of a bond In its frequent NOT directed against
application, is one a party-litigant BUT
(ibid).
that is generally against a tribunal,
directed against a corporation, board,
Distinguish status quo ante order from a party litigant (or officer or person
temporary restraining order (TRO) person not exercising exercising judicial,
judicial, quasi-judicial quasi-judicial or

328
 or ministerial ministerial functions Preliminary
Petition for
functions), although (Sec. 2, Rule 65, mandatory
mandamus
under the Rules, it Rules of Court) injunction
may also be directed act (Sec. 1, Rule 58, tribunal, corporation,
against a court, an Rules of Court) in board, officer or
agency or person order to restore the person to perform a
(Sec. 1, Rule 58, last peaceable and duty which the law
Rules of Court) uncontested status specifically enjoins as
Applies even if there Applies when the acts preceding the a duty either because
is no issue of or proceedings of any controversy there was an
jurisdiction, grave tribunal, corporation, unlawful neglect of
abuse of discretion, board, officer or such duty or a person
or other similar acts person are without was unlawfully
which amount to lack excess of its or his excluded from the
of jurisdiction. jurisdiction, or with use and enjoyment of
grave abuse of an office to which
discretion amounting such person is
to lack of jurisdiction. entitled (Sec. 3, Rule
i.e., basis is 65, Rules of Court)
jurisdictional issue Preliminary Mandamus is directed
(Sec. 2, Rule 65, mandatory injunction against ministerial
Rules of Court) may be directed acts
(Riano, Civil Procedure, Vol. II, 2019, p. 59; against any act
Riguera, Primer-Reviewer on Remedial Law, (Riano, Civil Procedure, Vol. II, 2019, p. 60)
2022, p. 832)
NOTE: In an action for mandamus, the petitioner
Distinguish preliminary mandatory may pray for the issuance of a writ of preliminary
injunction from a petition for mandamus mandatory injunction (Riguera, Primer-Reviewer
on Remedial Law, Civil Procedure, Vol. 1, 2022
Preliminary Ed., p. 832)
Petition for
mandatory
mandamus
injunction Injunction can only bind the parties in the
Not a main or Special civil action action, or their privies or successors-in-
independent action and a main action interest.
(provisional remedy)
Generally directed Mandamus is directed
against a party against a tribunal, As a provisional remedy to prevent irreparable
litigant although, board, officer or injury pending the final determination of the
under the Rules, it person (Sec. 3, Rule action, no person who has not been impleaded
may also be issued 65, Rules of Court) and duly served with the summons should be
against a court, adversely affected by the outcome of the action.
agency or person
This conforms to the constitutional guarantee of
(Sec. 1, Rule 58,
due process of law. (M. De Leon, Remedial Law
Rules of Court)
Preliminary Mandamus is one Reviewer-Primer, 2021, p. 320, citing Power
mandatory injunction which seeks a Sector Assets and Liabilities Management
is issued to require a judgment Corporation [PSALM] vs. Court of Appeals [21st
party to perform an commanding a Division], G.R. No. 194226, February 15, 2017)

329

Court that issues or grants writ of
preliminary injunction
(1) The court where the action or proceeding is
pending; (Rule 58, Sec. 2)
Illustration: A party desiring to appeal from the
judgment or final order of the Court of Appeals,
may file a petition for review on certiorari with the
Supreme Court. The petition may include an
application for a writ of preliminary injunction.
Since it is the Supreme Court which has
jurisdiction over the appeal, it is also such court
which shall have jurisdiction to issue the writ
applied for (Rule 45, Sec. 1; Riano, Civil
Procedure, Vol. II, 2019, p. 60)
An application for the issuance of a writ of
preliminary injunction and TRO must perforce be
made in the very action or proceeding to which
they relate and not in a separate case filed before
another court. (Perucho v. Valencia II, G.R. No.
231971 (Notice), July 10, 2019)
NOTE: If the main action is for injunction
pending in the Municipal Trial Court (MTC), the
MTC cannot grant the preliminary injunction
because an action for injunction is one incapable
of pecuniary estimation. Note that the RTC has
the exclusive original jurisdiction in all civil actions
where the subject matter is incapable of
pecuniary estimation under Sec. 19(1) of B.P.
129, as amended. (Riano, Civil Procedure, Vol. II,
2019, p. 61)
(2) If the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it
may be issued by said court or any member
thereof. (Rule 58, Sec. 2)
(3) Sandiganbayan can issue writ of injunction
and other ancilliary writs and processes in
aid of its appellate jurisdiction. (Sec. 4, R.A.
No. 10660)
Grounds for the issuance of writ of a
preliminary injunction
(1) That the applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission
or continuance of the act or acts complained
of, or in requiring the performance of an act
or acts, either for a limited period or
perpetually;
(2) That the commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
(3) That a party, court, agency or a person is
doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some act
or acts probably in violation of the rights of
the applicant respecting the subject of the
action or proceeding, and tending to render
the judgment ineffectual (Rule 58, Sec. 3;
Bureau of Customs v. Court of Appeals-
Cagayan de Oro Station, G.R. Nos. 192809,
193588, 193590-91 & 201650, April 26, 2021,
J. Hernando; Metroplex Berhad v. Sinophil
Corp., G.R. No. 208281, June 28, 2021, J.
Hernando)
Jurisprudential requisites for issuing a
preliminary injunction
Requisites for the issuance of a writ of
preliminary injunction as follows:
(a) the applicant must have a clear and
unmistakable right to be protected, that
is a right in esse;
(b) there is a material and substantial invasion
of such right;
330
(c) there is an urgent need for the writ to
prevent irreparable injury to the applicant;
and,
(d) no other ordinary, speedy, and adequate
remedy exists to prevent the infliction of
irreparable injury. (Bureau of Customs v.
Court of Appeals-Cagayan de Oro Station,
G.R. Nos. 192809, 193588, 193590-91 &
201650, April 26, 2021, J. Hernando)
The very foundation of the jurisdiction to issue a
writ of injunction rests on the:
(1) existence of a cause of action and in the
probability of irreparable injury;
(2) inadequacy of pecuniary compensation; and
the
(3) prevention of multiplicity of suits (ibid.)
Clear and unmistakable right
The right sought to be protected must be a
present right, a legal right which must be shown
to be clear and positive. Accordingly, this means
that the applicants praying for the issuance of a
writ of preliminary injunction “must show that
they have an ostensible right to the final relief
prayed for in their complaint” which existence
need not be conclusively established (i.e., there
is prima facie evidence of an existing right)
(Juana Complex I Homeowners Association, Inc.
v. Fil-Estate Land, Inc. 667 SCRA 440, 452, March
5, 2012)
In the absence of a clear legal right, the issuance
of the injunctive writ constitutes grave abuse of
discretion and will result to nullification thereof.
Where the complainant's right is doubtful or
disputed, injunction is not proper. The possibility
of irreparable damage sans proof of an actual
existing right is not a ground for a preliminary
injunction. (Barayuga v. Adventist University of
the Philippines, G.R. No. 168008, [August 17,
2011)
Thus, before the courts may issue a writ of
preliminary injunction, it is essential that the par
ty seeking its issuance be able to establish the
existence of a right to be protected. It must be a
right that is actual, clear, and existing; not a
mere contingent, abstract, or future right.
Further, the invasion of that clear and
unmistakable right must be material and
substantial. (Bureau of Customs v. Court of
Appeals-Cagayan de Oro Station, G.R. Nos.
192809, 193588, 193590-91 & 201650, April 26,
2021, J. Hernando)
Irreparable injury
Injury is irreparable where there is no standard
by which its amount can be measured with
reasonable accuracy. (Bureau of Customs v.
Court of Appeals-Cagayan de Oro Station, G.R.
Nos. 192809, 193588, 193590-91 & 201650, April
26, 2021, J. Hernando)
Formal requisites for issuance of a writ of
preliminary injunction or a temporary
restraining order
(1) There must be a verified application. (Sec.
4[a], Rule 58, Rules of Court)
Otherwise, the application or petition for
preliminary injunction is patently insufficient
both in form and substance.
(2) The applicant must post a bond, unless
exempted by the court. (Sec. 4[b], Rule
58, Rules of Court)
The amount of a bond fixed by the court is
executed to the party enjoined to the effect
that the applicant will pay to such party all
the damages which he may sustain by
reason of the injunction or TRO if the court
should finally decide that the applicant was
not entitled thereto (Land Bank of the Phils.
v. Heirs of Listana, G.R. No. 182758, May
30, 2011)
331
(3) The court must conduct a hearing. not prayed for in the complaint (Universal Motors
Corporation v. Rojas, Sr., A.M. No. RTJ-03-
The issuance of a writ of preliminary 1814, May 26, 2005).
injunction requires prior notice and hearing
to the party or parties sought to be
enjoined (Rule 58, Sec. 5). It cannot be Posting of a bond
issued ex parte. On the other hand, TRO The party filing a bond shall serve a copy of such
requires that all parties are heard in a bond on the other party who may take exceptions
summary hearing conducted within 24 or object to the sufficiency of the bond, or of the
hours after the sheriff’s return of service surety or sureties thereon.
and/or the records are received by the
branch selected by raffle and to which the
Where injunction Where injunction
records shall be transmitted immediately
shall be dissolved shall be granted or
(Sec. 4[d], Rule 58, Rules of Court). In
restored, as the
some cases, TRO may be issued ex parte
case may be
pursuant to Sec. 5 of Rule 58 of the Rules
If the applicant’s If the bond of the
of Court. (Riano, Civil Procedure, Vol. II,
bond is found to be adverse party is
2019, pp. 65-66)
insufficient in found to be
amount, and a bond insufficient in
In any event, a hearing is not even required
sufficient in amount amount, and a bond
should the trial court deny an application
with sufficient sufficient in amount
for preliminary injunction:
sureties is not filed. is not filed forthwith.
While Rule 58, Section 4 (d) requires that
the trial court conduct a summary hearing (Rule 58, Sec. 7)
in every application for temporary
restraining order regardless of a grant or Illustration: The CFI issued a writ of preliminary
denial. Rule 58, Section 5 requires a injunction after the petitioner had posted a bond
hearing only if an application for to answer for whatever damages the judge may
preliminary injunction is granted. Thus, sustain in a special civil action for prohibition in
Section 5 states that "no preliminary
his official capacity as judge of municipal trial
injunction shall be granted without hearing
and prior notice to the party or person court. Here, the Supreme Court ruled that the
sought to be enjoined." Inversely posting of said bond should not have been
stated, an application for preliminary ordered because the judge was not made
injunction may be denied even respondent as a private person. Thus, any
without the conduct of a hearing damage or expense incurred by him in connection
separate from that of the summary
with the case would be official in nature for which
hearing of an application for the
no fund of private origin has to answer. (Lim v.
issuance of
a temporary restraining order. (Land Callejo, Jr., G.R. No. L-27086, July 24, 1981)
Bank of the Philippines v. Spouses De
Jesus, G.R. No. 221133, June 28, 2021, J. Rule on prior or contemporary service of
Hernando) summons

NOTE: An application for writ of preliminary
injunction or a TRO may be included in a
complaint or any initiatory pleading (Rule 58, Sec.
4[c]). Thus, it is improper for a judge to order a
hearing on the issuance of a TRO where it was
General The case, if filed in a multi-sala
Rule court, shall be raffled only after
notice to and in the presence of
the adverse party or the person
to be enjoined. Such notice shall

332
 be preceded, or
contemporaneously
accompanied, by service of
summons, together with a copy
of the complaint or initiatory
pleading and the applicant’s
affidavit and bond, upon the
adverse party in the Philippines.
(Rule 58, Sec. 4[c])
Exception The requirement of prior or
contemporaneous service of
summons shall not apply in the
following cases:
(1) where the summons could
not be served either in
person or by substituted
service despite diligent
efforts or
(2) when the defendant (or
adverse party) is temporarily
out of the Philippines or
(3) when he (adverse party) is a
non-resident.
(M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 329, citing Rule 58, Sec. 4)
Temporary Restraining Order (TRO)
A TRO is an interlocutory order or writ issued by
the court as a restraint on the defendant until the
propriety of granting an injunction can be
determined, thus going no further in its operation
than to preserve the status quo until that
determination. A TRO is not intended to operate
as an injunction pendente lite, and should not in
effect determine the issues involved before the
parties can have their day in court (Subic Bay
Metropolitan Authority vs. Rodriguez, G.R. No.
160270, April 23, 2010).
The urgent nature of an injunction or TRO case
demands prompt action and immediate attention,
thereby compelling the filing of the case in the
proper court without delay. To assume that a
party desiring to file an injunction or TRO case
will just stand idly by and mark time until his
favored Branch is the only Branch left without an
assigned injunction or TRO case is obviously
speculative. Moreover, the "anomalous situation"
is highly unlikely in view of the uncertainty of
having the favored Branch remain the only
Branch without an injunction or TRO case
following the series of raffle. (Government
System Insurance System v. Cancino-Erum, A.M.
No. RTJ-09-2182 (Resolution), September 5,
2012)
Purpose of TRO
The purpose of a TRO is to prevent a threatened
wrong and to protect the property or rights
involved from further injury, until the issues can
be determined after a hearing on the
merits. Under Section 5, Rule 58 of the 1997
Rules of Civil Procedure, a TRO may be issued
only if it appears from the facts shown by
affidavits or by a verified application that great or
irreparable injury would be incurred by an
applicant before the writ of preliminary injunction
could be heard. (National Association of
Electricity Consumers for Reforms, Inc. v. Energy
Regulatory Commission, G.R. No. 190795, [July
6, 2011)
Duration of TRO
Regional Trial Court 20 days
Court of Appeals 60 days
Supreme Court Until further orders
(M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 327)
NOTE: Within the said twenty-day period, the
court must order said party or person to show
cause, at a specified time and place, why the
injunction should not be granted, determine
within the same period whether or not the
preliminary injunction shall be granted, and
accordingly issue the corresponding order. (Bank
333
of the Philippine Islands v. Court of Appeals, G.R.
No. 142731, June 8, 2006)
If it shall appear from facts shown by affidavits or
by the verified application that great or
irreparable injury would result to the applicant
before the matter can be heard on notice, the
court, in which the application for preliminary
injunction was made, may issue a TRO ex parte
for a period not exceeding 20 days from service
on the party or person sought to be enjoined.
(Riano, Civil Procedure, Vol. II, 2019, p. 68)
If the matter is of extreme urgency, and the
applicant will suffer grave injustice and
irreparable injury, the executive judge of a multi-
sala court or the presiding judge of a single-sala
court may issue ex parte a TRO effective for only
72 hours from issuance, not service. There is
also a need to immediately comply with the rule
on contemporaneous service of summons and the
documents to be served therewith, unless the
same could not be served personally or by
substituted service despite diligent efforts or for
other reasons provided for in Sec. 4 of Rule 58.
(Riano, Civil Procedure, Vol. II, 2019, p. 69 & 71,
citing Sec. 5, Rule 58, ROC)
NOTE: Within this period, the judge before whom
the case is pending, shall conduct a summary
hearing to determine whether the TRO can be
extended to 20 days. The 72-hour period shall
be included in the maximum 20-day period
set by the Rules (Rule 58, Sec. 5, par. 2). When
the court is a multi-sala court, the TRO is not to
be issued by any other judge other than the
executive judge of said court. (W. Riano, Civil
Procedure, Vol. II, 2019, p. 69)
When TRO cease to effect
Jurisprudence holds that if, before the expiration
of the period, the application for preliminary
injunction is denied, the TRO would be deemed
automatically vacated. (Rule 58, Sec 5, par. 3) If
no action is taken by the judge within the period,
the TRO would automatically expire on the last
day of the period. (Bacolod City Water District v.
Labayen, G.R. No. 157494, December 10, 2004)
A temporary restraining order cannot be exteded
indefinitely to take the place of a writ of
preliminary injunction, since a temporary
restraining order is intended only to have a
limited lifespan and is deemed automatically
vacated upon the expiration of 72 hours or 20
days, as the case may be. As such, the temporary
restraining order has long expired and,
in the absence of a preliminary injunction, there
was nothing to stop the sheriff from
registering the certificate of sale with the
Registry of Deeds. (First Sarmiento Property
Holdings, Inc. v. Philippine Bank of
Communications, G.R. No. 202836, June 19,
2018)
Rule against non-extendibility of a TRO
The effectivity of a TRO is not extendible without
need of any judicial declaration to that effect, and
no court shall have authority to extend or renew
the same on the same ground for which it was
issued. (Rule 58, Sec. 5) Thus, an extension or
renewal of the TRO based on another basis is
allowed, and could be made subject to the same
limitations imposed by the Rules. (Riano, Civil
Procedure, Vol. II, 2019, p. 70)
The rule against the non-extendibility of the
20-day effectivity of a TRO is absolute if
issued by RTC. The failure of the trial court to
fix a period in the TRO does not convert it to a
preliminary injunction. Where there is an
omission to fix the period, the 20-day period is
deemed incorporated in the order (Riano, Civil
Procedure, Vol. II, 2019, p. 69, citing Bacolod City
Water District v. Labayen, 446 SCRA 110, 124)
334
The Court of Appeals (CA) or any member
thereof may issue TRO, which shall be effective
for 60 days from service on the party or person
sought to be enjoined. (Riano, Civil Procedure,
Vol. II, 2019, p. 71, citing Sec. 5, par. 4, Rule 58,
Rules of Court)
A second TRO by the CA after the 60-day period
expires is a patent nullity (Riano, Civil Procedure,
Vol. II, 2019, p. 71, citing Re: Complaint Against
Justice Elvi John S. Asuncion of the Court of
Appeals, A.M. No. 06-6-8-CA; Padilla v. Asuncion,
A.M. No. 06-44-CA-J, 518 SCRA 512, 526).
However, if the Supreme Court (SC) or a
member thereof issued TRO, it shall be effective
until further orders (Riano, Civil Procedure,
Vol. II, 2019, p. 72, citing Sec. 5, par. 4, Rule 58)
Examples of cases justifying the issuance of
a writ of preliminary injunction
(1) When a petition for certiorari under Rule
65 of Rules of Court is filed.
Note: This does not interrupt the course of
the principal case unless a TRO or a writ of
preliminary injunction is issued (W. Riano,
Civil Procedure, Vol. II, 2019, p. 72-73).
Illustration: Defendant filed a petition for
certiorari alleging that the Metropolitan Trial
Court (MeTC) gravely abused its discretion
in denying his motion to dismiss and the
subsequent motion for reconsideration.
During the pendency of the petition in the
RTC, the plaintiff filed a motion to declare
the defendant in default for failure to file an
answer to the complaint within the
reglementary period. The MeTC, if it grants
the motion, cannot be considered to have
committed a procedural error. This is
because the period to file an answer was
not interrupted by the filing of the petition.
The defendant should have obtained a
preliminary injunction or a TRO from the
RTC to interrupt the course of the case in
the MeTC.
(2) When a petition for relief under Rule 38 of
the Rules of Court is filed.
Note: The petition for relief, which is an
equitable remedy, is filed after a judgment
has already become final and executory.
Assuming that the prevailing party has not
yet filed a motion for an order of execution,
the pendency of a petition for relief will not
prevent a motion for the execution of the
judgment. To stay its execution, the
issuance of a writ of preliminary injunction
should be applied for in the court where the
petition is filed. (ibid)
(3) When an action to annul a judgment is
filed under Rule 47 to prevent the execution
of the judgment. (ibid.)
(4) To restore the plaintiff in his
possession in a complaint for forcible
entry or unlawful detainer.
Note: Section 15, Rule 70 of the Rules of
Court provides that “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 in the action for forcible entry or
unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to
restore him in his possession.” (ibid.)
Prohibition on injunctions under R.A. 8975
(An Act to Ensure the Expeditious
Implementation and Completion of
Government Infrastructure Projects)
To enable the State to ensure expeditious and
efficient implementation and completion of
government infrastructure projects, avoid
unnecessary increase in construction,
maintenance and/or repair costs and immediately
335
enjoy the social and economic benefits therefrom,
Sec. 3 of R.A. 8975 specifically provides:
“No court, except the Supreme Court shall
issue any TRO, preliminary injunction, or
preliminary mandatory injunction against the
government or any of its subdivisions,
officials or any person or entity, whether
public or private acting under the government
direction, to restrain, prohibit or compel the
following acts:
(a) Acquisition, clearance and development of
the right-of-way and/or site or location of
any national government project;
(b) Bidding or awarding of contract/project of
the national government as defined in Sec. 2
hereof;
(c) Commencement, prosecution, execution,
implementation, operation of any such
contract or project;
(d) Termination or rescission of any such
contract/project; and
(e) The undertaking or authorization of any
other lawful activity necessary for such
contract/project.”
The law is clear that what is prohibited is merely
the issuance of provisional orders enjoining the
implementation of a national government project.
R.A. 8975 does not bar lower courts from
assuming jurisdiction over complaints that
seek the nullification or implementation of a
national government infrastructure project as
ultimate relief (Riano, Civil Procedure, Vol. II,
2019, pp. 73-74, citing Hontiveros-Baraquel v.
Toll Regulatory Board, G.R. No. 181293, February
23, 2015)
Illustration 1: A Regional Trial Court (RTC) which
issued a TRO or a writ of preliminary injunction
or preliminary injunction or preliminary
mandatory injunction against a government
contract or project acts contrary to law (W.
Riano, Civil Procedure, Vol. II, 2019, p. 74, citing
Nerwin Industries Corporation v. PNOC-Energy
Development Corporation, 669 SCRA 173, 174-
175, April 11, 2012).
Illustration 2: Petitioners filed an action for
injunction against the DPWH to stop the
elevation of the national highway which would
cause flooding and other damage to their
property. Upon the DPWH’s motion, the RTC
dismissed the case stating that it is without
jurisdiction to try the case. The RTC invoked
Section 3 of R.A. No. 8975 which provides that
only the Supreme Court shall issue any TRO, P.I.
or preliminary mandatory injunction against
national government infrastructure projects.
Here, the dismissal made by the RTC is improper
because the preclusion under RA 8975 applies
only to the ISSUANCE, NOT to the FILING of an
action seeking the issuance of a final injunction.
(Riguera, Primer-Reviewer on Remedial Law, Civil
Procedure, Vol. 1, 2022 Ed., p. 836, citing Soller
v. Singson, G.R. No. 215547, February 3, 2020)
Rationale of the law (RA 8975): Injunctions
and restraining orders tend to derail the
expeditious and efficient implementation and
completion of government infrastructure
projects; increase construction, maintenance,
and repair costs; and delay the enjoyment of the
social and economic benefits therefrom. Thus,
unless the matter is of extreme urgency involving
a constitutional issue, judges of lower courts
who shall issue injunctive writs or restraining
orders in violation of the law shall be
administratively liable. (Riano, Civil
Procedure, Vol. II, 2019, p. 74)
Examples of other cases where
injunction/preliminary injunction will NOT
be issued
(1) “Except the Supreme Court, no court can
issue a TRO or writ of preliminary injunction
against lawful actions of government
agencies that enforce environmental laws
336
 or prevent violations thereof” (Riano, Civil
Procedure, Vol. II, 2019, p. 75, citing Sec.
10, Rule 2, Part II, A.M. 09-6-8-SC [Rule of
Procedure in Environmental Cases]).
(2) No temporary or permanent injunction or
restraining order in any case involving or
growing out of labor disputes shall be
issued by any court or other entity except
as otherwise provided in Arts. 218 and
264 (now Art. 225(e) and Art. 279) of
the Labor Code (Riano, Civil Procedure,
Vol. II, 2019, p. 75, citing San Miguel
Corporation v. NLRC, 403 SCRA 418, 425;
Art. 225(e) and 279, Labor Code of the
Philippines renumbered).
Note: It is the NLRC [through its divisions] which
may grant injunctive relief under Art. 218 (now
Art. 225) of the Labor Code “when it is
established on the basis of the sworn
allegations that the acts complained of involving
or arising from any labor dispute, if not restrained
or performed forthwith, may cause grave or
irreparable damage to any party or render
ineffectual any decision in favor of such party.”
(Riano, Civil Procedure, Vol. II, 2019, p. 75, citing
Sec. 1 of Rule X of the 2011 NLRC Rules of
Procedure; Ravago v. Esso Eastern Marine, Ltd.,
453 SCRA 381, 394; Lahim v. Mayor, Jr., 666
SCRA 1, February 15, 2012).
The prohibition against the issuance in any case
growing out of a labor dispute does not apply
when the injunction is sought by a third
person whose property is sought to be
levied upon, to satisfy the liability of another
person since the matter neither involves nor
grows out of a labor dispute insofar as the third
party is concerned (Riano, Civil Procedure, Vol. II,
2019, p. 76, citing Peñalosa v. Villanueva, 177
SCRA 778, 786).
(3) P.D. 605 bans the issuance by courts of
preliminary injunctions in cases involving
concessions, licenses and other permits
issued by public administrative officials or
bodies for the exploitation of natural
resources. (Riano, Civil Procedure, Vol. II,
2019, p. 75)
(4) P.D. 1818 prohibits issuance of TROs,
preliminary injunctions, or preliminary
mandatory injunctions against the
execution or implementation of
government infrastructure projects and
essential government projects,
including arrastre and stevedoring
operations. (Riano, Civil Procedure, Vol. II,
2019, p. 76, citing Bangus Fry Fisherfolk v.
Lanzanas, 405 SCRA 530, 537; Circular No.
12-93, Office of the Court Administrator,
March 5, 1993; NPC v. Vera, 170 SCRA 721,
724-725; PSBA-Quezon City v. Tolentino-
Genillo, 447 SCRA 442, 449; Philippine Ports
Authority v. Pier 8 Arrastre & Stevedoring
Services, Inc., 475 SCRA 426, 439)
Except those which are questions of law.
Illustration: The residents of Dasmariñas
Village, Makati City, filed against the
NAPOCOR a complaint for damages with a
prayer for the issuance of a writ of
preliminary injunction and/or temporary
restraining order. The Plaintiffs sought to
enjoin NAPOCOR from energizing and
transmitting high voltage electric current
through its cables erected from Sucat,
Parañaque to Araneta Avenue, Quezon City.
The Plaintiffs allege that NAPOCOR
failed to comply with Section 27 of the
Local Government Code requiring prior
consultation prior to the
implementation of a government
project and that the electromagnetic fields
are harmful to their health. They allege that
unless the restraining order is issued, grave
and irreparable injury to their health would
ensue. NAPOCOR argues that the court is
prohibited from issuing a TRO and PI against
an infrastructure project by virtue of PD
1818.
337
 Note: The trial court may issue a
restraining order against NAPOCOR.
The prohibition extends only to the issuance
of injunctions in administrative acts in
controversies involving facts or the exercise
of discretion in technical cases. The issues of
whether there is a violation of the
plaintiffs’ constitutionally protected
right to health under Section 15, Article II
and whether NAPOCOR had violated
Section 27 of the Local Government
Code are questions of law which divest the
case from the protective mantle of PD 1818
(Hernandez v. National Power Corp., G.R.
145328, March 23, 2006; Riguera, Primer-
Reviewer on Remedial Law, Civil Procedure,
Vol. 1, 2022 Ed., pp. 838-839)
PD 605 and PD 1818 have been repealed by
RA 8975 (An Act to Ensure the Expeditious
Implementation and Completion of
Government Infrastructure Projects by
Prohibiting Lower Courts from issuing TROs,
Preliminary Injunctions or Preliminary
Mandatory Injunctions, providing Penalties
for Violations thereof, and for other
Purposes). (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 321)
(5) To restrain a mayor proclaimed as duly
elected from assuming his office (De
Leon, Remedial Law Reviewer-Primer, 2021,
p. 320, citing Cereno vs. Dictado, No. L-
81550, April 15, 1988, 160 SCRA 759).
(6) 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 the application,
implementation, or enforcement of the CARP
(Riano, Civil Procedure, Vol. II, 2019, p. 76,
citing Sec. 55, R.A. 6657, Comprehensive
Agrarian Reform Law).
(7) An injunction cannot be issued against the
Asset Privatization Trust (W. Riano, Civil
Procedure, Vol. II, 2019, p. 76, citing Sec.
31-A, Proclamation 50-A; DBP v. CA, 302
SCRA 362, 377; Mantruste System v. CA,
179 SCRA 136, 144).
Note: The functions of the Asset
Privatization Trust have been taken over by
the Privatization and Management Office of
the Department of Finance (Riano, Civil
Procedure, Vol. II, 2019, p. 76, citing E.O.
323, 2000).
(8) 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, Civil Procedure, Vol. II, 2019, p. 76,
citing Ching v. Court of Appeals, 398 SCRA
88, 93).
Note: It applies only when no party claimant
involved. When a third party or a stranger to
the action asserts a claim over the property
levied upon, the claimant may vindicate his
claim by an independent action in the proper
civil court which may stop the execution of
the judgment on property not belonging to
the judgment debtor. (De Leon, Remedial
Law Reviewer-Primer, 2021, p. 320, citing
Tay Chun Suy vs. CA, 229 SCRA 151 [1994]).
Illustration: The RTC of Manila issued a writ
of execution for the enforcement of a
decision in a civil case which became final
and executory. The sheriff levied upon
certain chattels and scheduled the auction
sale thereof.
However, Santamaria filed a third-party
claim with the sheriff asserting that
the chattels levied upon by the latter
belong to him and not to the judgment
debtor. Because the judgment obligee
posted an indemnity bond in favor of the
third-party claimant, the sheriff refused to
release the chattels and stated that he would
proceed with the auction sale.
Hence, Santamaria filed with the RTC of
Bulacan an action against the judgment
obligee and the sheriff for the recovery of
338
 the chattels and seeking to enjoin the
auction sale. The RTC of Bulacan in due
course issued a writ of preliminary
injunction enjoining the sheriff from
proceeding with the auction sale. The
judgment creditor and the sheriff filed a
motion to dismiss stating that Santamaria
can no longer file a separate action since he
had already filed a third-party claim and that
the auction sale cannot be enjoined since a
court cannot interfere with the judgment of
a coordinate court (93 Bar Q8 ed).
Here, the motion to dismiss should be
denied. Nothing contained in Section 16,
Rule 39 shall prevent the third-party
claimant from vindicating his claim to the
property in a separate action. There is no
interference with the processes of a
coordinate and co-equal court since
the sheriff was improperly
implementing the writ of execution.
(Riguera, Primer-Reviewer on Remedial Law,
Civil Procedure, Vol. 1, 2022 Ed., pp. 839-
840, citing Abiera v. Court of Appeals, 45
SCRA 314)
(9) The RTC may not issue injunction
against quasi-judicial bodies of equal
rank such as the Social Security Commission
(SSC) and Securities and Exchange
Commission (SEC) (Riano, Civil Procedure,
Vol. II, 2019, p. 77, citing Philippine Pacific
Fishing Co., Inc. v. Luna, 112 SCRA 604,
613).
Note: Thus, the RTC has no power to issue
a TRO or writ of preliminary injunction to
interfere with or restrain the decisions of the
Ombudsman (quasi-judicial body) in
disciplinary cases because they are co-equal.
The decision of the Ombudsman in
administrative disciplinary cases are
appealable to the Court of Appeals. (Riguera,
Primer-Reviewer on Remedial Law, Civil
Procedure, Vol. 1, 2022 Ed., pp. 832-838,
citing DILG v. Gatuz, G.R. No. 191176,
October 14, 2015; OCA Circular No. 221-
2019 dated December 5, 2019)
(10) The RTC has no jurisdiction to issue
a writ of injunction against the execution
of an award for workmen’s
compensation (Riano, Civil Procedure, Vol.
II, 2019, p. 77, citing Nocnoc v. Vera, 88
SCRA 529, 536).
(11) Injunction is not available to restrain
the collection of taxes. (R.A. 8424, Sec.
218, or the Tax Reform Act of 1997;
Commissioner of Internal Revenue v.
Standard Insurance Company, Inc., G.R. No.
219340, November 7, 2018).
Exception: When special circumstances
warrant as when the collection of taxes
would cause irreparable injury (W. Riano,
Civil Procedure, Vol. II, 2019, p. 77, citing
Sarasola v. Trinidad, 40 Phil. 252, 257; David
v. Ramos, 90 Phil. 351)
(12) Trial courts are enjoined from
issuing orders releasing imported
articles impounded by the Bureau of
Customs.
Note: Seizure and forfeiture proceedings is
under the exclusive jurisdiction of the
Collector of Customs; thus, regular courts
cannot interfere. (Riano, Civil Procedure,
Vol. II, 2019, p. 77, citing Zuño v. Cabredo,
402 SCRA 75, 81)
(13) An injunction cannot be issued against
consummated acts or fait accompli acts.
(Riano, Civil Procedure, Vol. II, 2019, p. 77,
citing David v. Navarro, 422 SCRA 490, 512;
Spouses Marquez v. Spouses Alindog, G.R.
No. 184045, January 22, 2014.)
(14) To restrain against disposing a case
on the merits (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 320, citing
Government Service Insurance System
(GSIS) vs. Florendo, G.R. No. 48603,
September 29, 1989).
339
 (15) RTC has no power to issue a
writ of injunction against the
Register of Deeds if its effect is to
render nugatory a writ of execution
issued by the National Labor Relations
Commission (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 321, citing
Ambrosio vs. Salvador, No. L-47651,
December 11, 1978, 87 SCRA 217).
Note: But where the lower court enforced
its judgment before a party against whom
the execution was enforced could elevate his
or her appeal in an injunction suit, which was
instituted to prevent said execution, an
independent petition for injunction in the
Court of Appeals is justified (M. De Leon,
Remedial Law Reviewer-Primer, 2021, p.
321, citing Manila Surety and Fidelity vs.
Teodoro, G.R. No. 20530, June 29, 1967, 20
SCRA 463).
(16) A writ of injunction should never issue
when an action for damages would
adequately compensate the injuries
caused (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 321)
Note: The very foundation of the jurisdiction
to issue a writ of injunction rests in the
possibility of irreparable injury, inadequacy
of pecuniary compensation, and the
prevention of multiplicity of suits. Where
facts are not shown to bring the case within
these conditions, the reliefs of injunction
should be refused. (M. De Leon, Remedial
Law Reviewer-Primer, 2021, p. 321, citing
Heirs of Melencio Yu vs. Court of Appeals,
G.R. No. 182371, September 4, 2013).
(17) An injunction cannot be issued to
transfer possession or control of a
property to another when the legal title
is still in dispute between the parties
and whose legal title has not been clearly
established (W. Riano, Civil Procedure, Vol.
II, 2019, p. 78, citing Almeida v. Court of
Appeals, 448 SCRA 681, 704; Borbajo v.
Hidden View Homeowners, Inc., 450 SCRA
315, 327; Cortez-Estrada v. Heirs of
Domingo Samut/ Antonia Samut, 451 SCRA
275, 292).
Note: A judge who disregards this
established doctrine is grossly ignorant of
the law (Medina v. Canoy, 663 SCRA 424,
432-433, February 22, 2012).
(18) An injunction cannot be issued for the
purpose of establishing new relations
between the parties (W. Riano, Civil
Procedure, Vol. II, 2019, p. 78, citing
Almeida v. Court of Appeals, supra).
(19) When there is a lack of a clear and
unmistakable right on the part of the
applicant.
Note: Granting the application constitutes
grave abuse of discretion (Riano, Civil
Procedure, Vol. II, 2019, p. 78, citing Cortez-
Estrada v. Heirs of Domingo Samut/Antonia
Samut, 451 SCRA 275, 289-290)
(20) Courts should also avoid issuing
injunctions which, in effect, would
dispose of the main case without [or
before] trial (Riano, Civil Procedure, Vol.
II, 2019, p. 78, citing Levi-Strauss & Co. v.
Clinton Apparrelle, Inc., 470 SCRA 236, 257;
Philippine Ports Authority v. Pier 8 Arrastre &
Stevedoring Services, Inc., 475 SCRA 426,
441).
Note: It is but a preventive remedy whose
only mission is to prevent threatened
wrong, further injury, and irreparable harm
or injustice until the rights of the parties
can be settled” (Riano, Civil Procedure, Vol.
II, 2019, p. 78, citing Nerwin Industries
Corporation v. PNOC-Energy Development
Corporation, 669 SCRA 173, 188-189, April
11, 2012)
(21) As a general rule, injunction (whether
preliminary or final) will not lie to
restrain a criminal prosecution, except
in extreme cases like the following
(Andres v. Cuevas, 460 SCRA 38, 51):
340

(a) To afford adequate protection to
the constitutional rights of the
accused;
(b) When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
(c) When double jeopardy is clearly
apparent;
(d) Where the charges are manifestly
false and motivated by the lust for
vengeance; or
(e) Where there is clearly no prima
facie case against the accused
and a motion to quash on that
ground has been denied (W. Riano,
Civil Procedure, Vol. II, 2019, p. 79,
citing Roberts v. CA, 254 SCRA 307,
346; Brocka v. Enrile, 192 SCRA 183,
188-189; Bar 1999).
(22) Injunction beyond prayer in
complaint (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 316, citing The
Chief of Staff, AFP, vs. Guadiz, Jr., No. L-
35007, December 29, 1980, 101 SCRA 827).
(23) Injunctions to prevent the
foreclosure of real estate mortgages by
government financing institutions (M.
De Leon, Remedial Law Reviewer-Primer,
2021, p. 317, citing OCA Circular No. 93-
2004 in relation to Sec. 21 Rule 141 of the
Rules of Court, Sec. 3 Presidential Decree
No. 385 and Administrative Circular No. 07-
99).
Note: PD 385 is a law against any
government financial institution taking
foreclosure of loans of which at least 20%
thereof are outstanding (M. De Leon,
Remedial Law Reviewer-Primer, 2021, p.
322)
(24) No TRO or writ of preliminary injunction
shall be issued against the extrajudicial
foreclosure of mortgage on the
allegation that the loan has been paid
or is not delinquent unless the application
is verified and supported by evidence of
payment.
Note: If the ground relied upon is that the
interest is unconscionable, no TRO or
writ of preliminary injunction shall be issued
unless the debtor pays the mortgagee at
least 12% interest per annum on the
principal obligation as stated in application
for foreclosure sale, which shall be updated
monthly while the case is pending (Riano,
Civil Procedure, Vol. II, 2019, p. 79, citing
A.M. No. 99-10-05-0, Rules on Extrajudicial
Foreclosure of Real Estate Mortgage,
effective March 10, 2007).
(25) Under Sec. 25 of the New Central Bank
Act (R.A. 7653), “No restraining order or
injunction shall be issued by the court
enjoining the Bangko Sentral from
examining any institution subject to
supervision or examination by the
Bangko Sentral, unless there is convincing
proof that the action of the Bangko Sentral
is plainly arbitrary and made in bad faith and
the petitioner or plaintiff files with the clerk
or judge of the court in which the action is
pending a bond executed in favor of the
Bangko Sentral, in an amount to be fixed by
the court. (Riano, Civil Procedure, Vol. II,
2019, pp. 79-80)
Note: The provisions of Rule 58 of the
New Rules of Court insofar as they are
applicable and not inconsistent with the
provisions of this section shall govern the
issuance and dissolution of the
restraining order or injunction contemplated
in this section.” (Riano, Civil Procedure, Vol.
II, 2019, p. 80)
(26) Conservatorship, Receivership, and
Liquidation Proceedings under the
New Central Bank Act.
Note: The actions of the Monetary Board in
respect of them shall not be restrained
except on petition for certiorari on the
ground that the action taken was in excess
341
 of jurisdiction or with such grave abuse of
discretion as to amount to lack of or excess
of jurisdiction. The petition for certiorari
may only be filed by the stockholders of
record representing the majority of the
capital stock within 10 days from receipt by
the board of directors of the institution of the
order directing conservatorship,
receivership, or liquidation. (M. Riguera,
Primer-Reviewer on Remedial Law, Civil
Procedure, Vol. 1, Seventh 2022 Edition, p.
835, citing Sec. 30, New Central Bank Act).
(27) Under the Special ADR Rules, the
arbitration proceedings shall not be
enjoined during the pendency of the
petition for judicial relief from the ruling
of the arbitral tribunal (Riano, Civil
Procedure, Vol. II, 2019, p. 80, citing Rule
3.18[B], Special ADR Rules).
(28) To restrain execution of judgment
(M. De Leon, Remedial Law Reviewer-
Primer, 2021, p. 320, citing Garrido vs.
Tortogo, G.R. No. 156358, August 17, 2011).
(29) Injunction issued to prevent the
Anti Money Laundering Council from
issuing and/or implementing freeze
orders, except for a writ of injunction or
TRO issued by the Court of Appeals and the
Supreme Court (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 317, citing
Section 10 of R.A. 9160, as amended by RA
9194 or The Anti-Money Laundering Act of
2001)
(30) An inalienable public land cannot be
appropriated and thus, may not be the
proper object of possession. Hence,
injunction cannot be issued in order to
protect one’s alleged right of possession
over the same (W. Riano, Civil Procedure,
Vol. II, 2019, p. 80, citing Republic v. Cortez,
G.R. No. 197472, September 7, 2015).
NOTE: Laws prohibiting injunction such as
PD 605 & PD 1818 (both of which having
been repealed by RA 8975), and PD 385 do
not deprive Supreme Court of the
authority to issue TROs in appropriate
cases pending before it, nor they and
similar statutes preclude issuance of
preliminary injunction by the lower
courts where:
(a) There is grave abuse of discretion
amounting to lack of jurisdiction;
(b) Officials concerned committed
irregularities;
(c) Question of law involved;
(d) Officials concerned put the law into
their hands and violated the applicant’s
rights. (M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 322)
First paragraph of Sec. 14 of R.A. 6770 (The
Ombudsman Law) declared ineffective;
second paragraph declared
unconstitutional
In the case of Morales v. Court of Appeals, G.R.
Nos. 217126-27, November 10, 2015, the Court
of Appeals (CA) did not gravely abuse its
discretion in issuing a TRO and a writ of
preliminary injunction to prevent the
implementation of the order of suspension of a
city mayor issued by the Officer of the
Ombudsman because the CA acted pursuant to
the then prevailing condonation doctrine invoked
by the city mayor. Here, the first paragraph of
Sec. 14, R.A. 6770 was declared to be
INEFFECTIVE because it took away from the
courts their power to issue such, the
Congress encroaching upon the Court’s
constitutional rule-making authority. (Riano, Civil
Procedure, Vol. II, 2019, p. 81)
Rule 45 on appeal, which is within the sphere of
the rules of procedure promulgated by the Court,
can only be taken against final decisions or orders
of lower courts, and NOT against ‘findings’ of
quasi-judicial agencies. Hence, the Congress
cannot alter the scope of a Rule 45 appeal to
apply to interlocutory findings issued by the
342
Ombudsman. By confining the remedy to a enjoined while the applicant can be
Rule 45 appeal, the provision takes away fully compensated for such damages as
the remedy of certiorari, grounded on errors he may suffer. (RULE OF RELATIVE OR
COMPARATIVE INCONVENIENCE/DAMAGE)
of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. Thus, the
Note: In this case, the person enjoined shall
second paragraph of Sec. 14, RA 6770 was
file a bond in an amount fixed by the court
declared UNCONSTITUTIONAL because it also
conditioned that he will pay all damages
increased the Court’s appellate jurisdiction,
which the applicant may suffer by the denial
without a showing that it gave consent to
or the dissolution of the injunction or
the same. The provision is very similar to the
restraining order. (Rule 58, Sec. 6)
fourth paragraph of Sec. 27, RA 6770 which was
invalidated in the case of Fabian v. Desierto.
Here, the court is called upon to exercise its
(Riano, Civil Procedure, Vol. II, 2019, pp. 81-82)
discretion in determining or weighing the
relative damages that may be suffered by
Grounds for objection to an application for,
the parties. (Riano, Civil Procedure, Vol. II,
or for motion of dissolution of, injunction or
2019, p. 83)
restraining order

Illustration: If the damages that may be

(1) The application for injunction or restraining
order may be denied upon a showing of
its insufficiency (Rule 58, Sec. 6).
Note: The application for injunction may be
considered insufficient if:
• it is NOT verified and supported by
any of the grounds for its issuance
under Sec. 3 of Rule 58;
• does NOT show facts entitling the
applicant to the relief demanded;
• or is NOT supported by the required
bond under Sec. 4 of Rule 58. (Riano,
Civil Procedure, Vol. II, 2019, p. 82)
(2) The injunction or restraining order may also
be denied, or, if granted, may be dissolved,
on other grounds upon affidavits of the
party or person enjoined, which may be
opposed by the applicant also by affidavits
(Rule 58, Sec. 6).
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,
the injunction should be dissolved.
Effect of filing a counterbond
Mere filing of a counterbond does not necessarily
warrant the dissolution of the writ of preliminary
injunction. Otherwise, the counterbond would
become the vehicle of the commission or
continuance of an unauthorized or illegal act
which the injunction precisely is intended to
prevent. (Riano, Civil Procedure, Vol. II, 2019, pp.
83-84, citing Director of the Bureau od
Telecommunications v. Aligaen, 33 SCRA 368,
385-386)

(3) It may further be denied, or, if granted, may Modification of the injunction
be dissolved, if it appears after hearing
that although the applicant is entitled If it appears that the extent of the preliminary
to the injunction or restraining order, the injunction or restraining order granted is too
issuance or continuance thereof, as the
great, it may be modified. (W. Riano, Civil
case may be, would cause irreparable
damage to the party or person

343
Procedure, Vol. II, 2019, p. 84, citing Sec. 6, Rule Distinguish preliminary injunction from
58) final injunction

Grave abuse of discretion as a ground for Preliminary

Final Injunction
nullifying an injunctive writ Injunction
Granted at any One issued if after
There must be a capricious and whimsical stage of an action the trial of the
prior to the judgment action, it appears that
exercise of judgment, equivalent to lack or excess
or final order therein. the applicant is
of jurisdiction. The power must be exercised in an (Rule 58, Sec. 1) entitled to have the
arbitrary manner by reason of passion or personal act or acts
hostility, and it must be patent and gross as to complained of
amount to an invasion of a positive duty or a permanently
virtual refusal to perform a duty enjoined by law enjoined, in which
case the court shall
(Riano, Civil Procedure, Vol. II, 2019, p. 84, citing
grant a final
Sps. Castro v. Sps. De la Cruz, 639 SCRA 187, injunction perpetually
191). restraining the party
or person enjoined
Duty of the court that issued the writ from the commission
or continuance of the
The trial court, the Court of Appeals, the act or acts, or
confirming the
Sandiganbayan or the Court of Tax Appeals that
preliminary
issued the writ of preliminary injunction against a mandatory injunction.
lower court, board, officer, or quasi-judicial (Rule 58, Sec. 9)
agency shall decide the main case or
petition within six (6) months from the Provisional Permanent
issuance of the writ (Riano, Civil Procedure, (Riguera, Primer-Reviewer on Remedial Law, Civil
Vol. II, 2019, p. 84, citing A.M. 07-7-12-SC, Procedure, Vol. 1, 2022 Ed., pp. 832-833)
Effective December 27, 2007).
D. RECEIVERSHIP (RULE 59)
Grant of final injunction
Receiver is a representative of the court
appointed for the purpose of preserving and
A final injunction shall be granted by the court
conserving the property in litigation and prevent
with the effect of permanently restraining a
its possible destruction or dissipation, if it were
party or person enjoined from committing or
left in the possession of any of the parties. He is
continuing the acts subject of the injunction. The
not the representative of any or the parties but
court may also confirm the preliminary
by all of them to the end that their interests may
mandatory injunction already issued. The court
be equally protected with the least possible
will do these if after the trial of the action, it
inconvenience and expense. (M. De Leon,
appears that the applicant is entitled to have the
Remedial Law Reviewer-Primer, 2021 Ed., p. 330)
act or acts complained of permanently enjoined
(Riano, Civil Procedure, Vol. II, 2019, pp. 84-85,
citing Sec. 9, Rule 58, Rules of Court).

344
Nature of a Receivership
Receivership is a provisional or ancillary remedy
wherein the court appoints a receiver to receive
and preserve 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. 1, 2022 Ed., p. 856)
Receivership is not an action. It is but an auxiliary
remedy, a mere incident of the suit to help
achieve its purpose. Consequently, it cannot be
said that the grant of receivership in one case will
amount to res judicata on the merits of the other
cases. The grant or denial of this provisional
remedy will still depend on the need for it in the
particular action. (Chavez v. Court of Appeals,
G.R. No. 174356, January 20, 2010)
Receivership is a harsh remedy to be granted with
utmost circumspection and only in extreme
situations. The basic principle that receivership
may be granted only when the circumstances so
demand, either because the property sought to
be placed in the hands of a receiver is in danger
of being lost or because they run the risk of being
impaired, and that being a drastic and harsh
remedy, receivership must be granted only when
there is a clear showing of necessity for it in order
to save the plaintiff from grave and immediate
loss or damage. (Tantano v. Espina-Caboverde,
G.R. No. 203585, July 29, 2013)
Power to Appoint Receivership
The power to appoint a receiver is a delicate one
and should be exercised with extreme caution
and only under circumstances requiring summary
relief or where the court is satisfied that there is
imminent danger of loss, lest the injury thereby
caused be far greater than the injury sought to
be averted. The court should consider the
consequences to all of the parties and the power
should not be exercised when it is likely to
produce irreparable injustice or injury to private
rights or the facts demonstrate that the
appointment will injure the interests of others
whose rights are entitled to as much
consideration from the court as those of the
complainant. (Tantano v. Espina-Caboverde, G.R.
No. 203585, July 29, 2013)
Object of appointment of a receiver
A petition for receivership under Section 1[b],
Rule 59 of the Rules of Civil Procedure requires
that the property or fund subject of the action is
in danger of being lost, removed, or materially
injured, necessitating its protection or
preservation. Its object is the prevention of
imminent danger to the property. If the action
does not require such protection or preservation,
the remedy is not receivership. (Chavez v. Court
of Appeals, G.R. No. 174356, January 20, 2010)
Purpose of Receivership
Receivership is aimed at the preservation of, and
at making more secure, existing rights; it cannot
be used as an instrument for the destruction of
those rights. (Arranza v. B.F. Homes, Inc., G.R.
No. 131683, June 19, 2000)
Courts that has jurisdiction to appoint a
receiver
(a) The court where the action is pending
(b) The Court of Appeals or a member thereof
(c) The Supreme Court or any member thereof
(Riano, Civil Procedure, Vol II, 2016 Ed., p.
88)
Note: Before appointing a receiver, courts should
consider: (1) whether or not the injury resulting
from such appointment would probably be
greater than the injury ensuing if the status quo
is left undisturbed; and (2) whether or not the
345
appointment will imperil the interest of others
whose rights deserve as much a consideration
from the court as those of the person requesting
for receivership. (Tantano v. Espina-Caboverde,
G.R. No. 203585, July 29, 2013)
Appointment of a receiver is allowed on
appeal
During the pendency of an appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin and the receiver
appointed to be subject to the control of said
court. (Rule 59, Sec. 1)
Persons that may be Appointed as Receiver
Upon a verified application, one or more receivers
of the property subject of the action or
proceeding may be appointed by:
(1) the court where the action is pending,
(2) or by the Court of Appeals or
(3) by the Supreme Court, or a member thereof
(Rule 59, Sec. 1)
Grounds for the appointment of a Receiver
(a) When it appears from the verified
application, and such other proof as the
court may require, that the party applying
for the appointment of a receiver has an
interest in the property or fund which is the
subject of the action or proceeding, and that
such property or fund is in danger of being
lost, removed, or materially injured unless a
receiver be appointed to administer and
preserve it;
(b) When it appears in an action by the
mortgagee for the foreclosure of a mortgage
that the property is in danger of being
wasted or dissipated or materially injured,
and that its value is probably insufficient to
discharge the mortgage debt, or that the
parties have so stipulated in the contract of
mortgage;
(c) After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judgment, or
to aid execution when the execution has
been returned unsatisfied or the judgment
obligor refuses to apply his property in
satisfaction of the judgment, or otherwise to
carry the judgment into effect;
(d) Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation. (Rule 59, Sec. 1)
Requisites for appointment of a receiver
(1) A verified application filed by the party
applying for the appointment of a receiver.
(Sec. 1(a), Rule 59);
(2) Proof of the grounds specified in Secs. 1[a],
[b], [c], and [d] of Rule 59;
(3) There must be a notice and set for hearing;
(4) 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)
(5) The receiver must be sworn to perform his
duties faithfully and shall file a bond (Sec. 4,
Rule 59).
Instances When Receivership May Be
Denied or Lifted (Rule 59, Sec. 3)
(1) Filing of a counterbond; or
(2) No sufficient cause for appointing a receiver
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
reasonof the appointment of such receiver in
case the applicant shall have procured such
appointment without sufficient cause.
346

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).
Two (2) Kinds of Bonds
Applicant’s To pay the damages the
Bond adverse party may
(for appointment sustain by reason of
of receiver) appointment of receiver
(Rule 59, Sec. 2).
Receiver’s Bond To answer for receiver‘s
(of the appointed faithful discharge of his
receiver, aside duties (Rule 59, Sec. 4).
from oath)
General Powers of a Receiver
(1) To bring and defend action in his own
name in his capacity as receiver;
(2) To take and keep possession of the
property in controversy;
(3) To receive rents;
(4) To collect debts due to himself as receiver
or to fund, property, estate or corporation
of which he is the receiver;
(5) To compound for and compromise the
same.
(6) To make transfers;
(7) To pay outstanding debts;
(8) To 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
(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)
A bank which has been ordered closed by the
Bangko Sentral ng Pilipinas (Bangko Sentral) is
placed under the receivership of the Philippine
Deposit Insurance Corporation. As a consequence
of the receivership, the closed bank may sue and
be sued only through its receiver, the Philippine
Deposit Insurance Corporation. Any action filed
by the closed bank without its receiver may be
dismissed. (Banco Filipino Savings and Mortgage
Bank v. Bangko Sentral ng Pilipinas, G.R. No.
200678, June 4, 2018)
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 contract
without the approval of the court (Pacific
Merchandising Corp. vs. Consolacion
Insurance & Surety Company, GR No. L-
30204, October 29, 1976).
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).
347
Termination of Receivership
The receivership shall be terminated if upon
motion of either party or motu proprio by the
court, the necessity for a receiver no longer exists
(Rule 59, Sec. 8).
Procedure in the Termination of
Receivership:
(1) Due notice to all interested parties;
(2) Hearing;
(3) Settling the accounts of the receiver; and
(4) Directing delivery of the funds and other
property in the receiver‘s possession to the
person adjudged to receive
(5) Order the discharge of the receiver further
duty as such (Rule 59, Sec. 8).
Entitlement of a receiver after termination
Receiver is allowed a reasonable compensation
set by the court as the case may warrant to be
taxed as costs against the defeated party, or
apportioned if justice requires (Rule 59, Sec. 8).
Judgment to include recovery against
sureties
The amount, if any, to be awarded to any party
upon any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure prescribed in section 20 of Rule 57.
(Rule 59, Sec. 9).
Section 10, Rule 60 of the Rules of Court governs
claims for damages on account of improper or
irregular seizure in replevin cases. It provides that
in replevin cases, as in receivership and injunction
cases, the damages to be awarded upon the bond
"shall be claimed, ascertained, and granted
(Advent Capital and Finance Corp. v. Young, G.R.
No. 183018, August 3, 2011)
The above provision essentially allows the
application to be filed at any time before the
judgment becomes executory. It should be filed
in the same case that is the main action, and with
the court having jurisdiction over the case at the
time of the application. (ibid.)
Appointment of a Receivership during
Execution
Sec. 41, Rule 39 provides for the rule on
appointment of a receiver during execution.
The court during execution stage may order the
following:
(1) appoint a receiver of the property of the
judgment obligor; and
(2) it may also forbid a transfer or other
disposition of, or any interference with, the
property of the judgment obligor not exempt
from execution. (Rule 39, Sec. 41).
Specific situations when a receiver may be
appointed
(1) Family Code, Article 101.
If a spouse, without just cause, abandons
the other or fails to comply with his or his
obligations to the family, the aggrieved
spouse may petition the court for
receivership.
(2) Sec. 41, Rule 39.
The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid the transfer or other disposition
of, or any interference with, the property of
the judgment obligor not exempt from
execution.
(3) After the perfection of an appeal, the trial
court retains jurisdiction to appoint a
receiver of the property under litigation since
this matter does not touch upon the subject
of the appeal (Rules of Court, Rule 41, Sec.
9; Acutia vs. Caluag, 101 Phil. 446 [1957]).
(4) After final judgment, a receiver may be
appointed as an aid to the execution of
348
 judgment (Philippine Trust Company vs.
Santamaria, 53 Phil. 463[1929]).
(5) Appointment of a receiver over the property
in custodia legis may be allowed when it is
justified by special circumstances as when it
is reasonably necessary to secure and
protect the rights of the real owner (Dolar
vs. Sundiam, No. L-27631, April 30, 1971).
(6) In a petition for corporate rehabilitation,
when the court finds the same to be
sufficient in form and substance, the Court
shall, within five days from filing of the
petition appoint a Rehabilitation and fix his
bond (Rules of Procedure on Corporate
Rehabilitation 2008).
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Ed., p. 333)
E. REPLEVIN (RULE 60)
Replevin is an action for the recovery of personal
property. It is both a principal remedy and a
provisional relief. When utilized as a principal
remedy, the objective is to recover possession of
personal property that may have been wrongfully
detained by another. When sought as a
provisional relief, it allows a plaintiff to retain the
contested property during the pendency of the
action (Jorgenetics Swine Improvement Corp. v.
Thick & Thin Agri-Products, Inc., G.R. Nos.
201044 & 222691, May 5, 2021, J. Hernando
citing Enriquez vs. The Mercantile Insurance Co.
Inc., G.R. No. 210950, August 15, 2018).
NOTE: Replevin, broadly understood, is both a
form of principal remedy and of a provisional
relief. It may refer either to the action itself, i.e.,
to regain the possession of personal chattels
being wrongfully detained from the plaintiff by
another, or to the provisional remedy that would
allow the plaintiff to retain the thing during the
pendency of the action and hold it pendente lite.
The action is primarily possessory in nature and
generally determines nothing more than the right
of possession. Replevin is so usually described as
a mixed action, being partly in rem and partly in
personam-in rem insofar as the recovery of
specific property is concerned, and in personam
as regards to damages involved. Rule 60 of the
Rules of Court allows an application for the
immediate possession of the property but the
plaintiff must show that he has a good legal basis,
i.e., a clear title thereto, for seeking such interim
possession (ibid).
Nature of Replevin
Replevin may either provisional remedy or the
main action itself. (Tan, Civil Procedure: A Guide
For the Bench and the Bar, Book III, 2022 Ed., p.
252)
Being provisional and ancillary in character, the
existence and efficacy of the writ of replevin
depends on the outcome of the case. Ancillary
writs are not causes ofaction in themselves, but
mere adjuncts to the main suit with the sole
object of preserving the status quo until the mer
its of the case can be heard. An ancillary writ
"cannot survive the main case of which it is an
incident because an ancillary writ loses its force
and effect after the decision in the main petition.
(Jorgenetics Swine Improvement Corp. v. Thick &
Thin Agri-Products, Inc., G.R. Nos. 201044 &
222691, May 5, 2021, J. Hernando)
Replevin as a main action
Replevin, as a main action, is a suit at law (action
for replevin whereby goods or chattels that have
been unlawfully taken from one may be
recovered. Not only ordinary articles of movable
personal property may be recovered but such
things as records of corporation, local official
records, trees cut down or cut into boards, or
even if it can be found and identified as the same
money which was taken. (Tan, Civil Procedure: A
Guide For the Bench and the Bar, Book III, 2022
Ed., p. 252)
349
Replevin vs. Preliminary Attachment NOTE: A writ of replevin issued by any court in
the Philippines may be served and enforced
Preliminary Replevin anywhere in the country. There is no legal
Attachment provision, statutory or reglementary, expressed
Available even if Available only if or implied, that provides a jurisdictional or
recovery of personal principal relief sought territorial limit to the area of enforceability of a
property is only is recovery of
writ of replevin (Fernandez vs. The International
incidental relief in the personal property;
action Relief for damages Corporate Bank, G.R. No. 131283, October 7,
are only incidental 1999).
Can be resorted to Can be sought only
even if personal where defendant is in Requisites
property is in the actual or constructive Applicant must file for an application for writ of
custody of a third possession of the replevin at the commencement of the action or at
person personality involved
any time before an answer is filed.
Extends to all kinds Extends only to
of property personal property
capable of manual NOTE: As a provisional remedy, a party may
delivery apply for an order for the delivery of the property
To recover To recover personal before the commencement of the action or at any
possession of property even if it is time before an answer is filed. Rule 60 of the
personal property not being concealed, Rules of Court outlines the procedure for the
unjustly detained; removed, or disposed
application of a writ of replevin. Rule 60, Section
Presupposes that it is of
being concealed, 2 requires that the party seeking the issuance of
removed, or disposed the writ must first file the required affidavit and a
to prevent its being bond in an amount that is double the value of the
found or taken by the property (Enriquez vs. The Mercantile Insurance
applicant Co. Inc., G.R. No. 210950, August 15, 2018).
Can be resorted to Cannot be availed of
even if property is in if property is under
(1) The application must be timely filed (Rule
custodia legis custodia legis
60, Sec. 1).
(M. De Leon, Remedial Law Reviewer-Primer,
(2) Application must contain an affidavit
2021 Ed., p. 334)
executed by the (i) applicant or (ii) any one
who has personal knowledge of facts.
When may Writ be Issued
A party praying for the recovery of possession of The Affidavit must contain the following:
personal property may apply for an order for the (a) Particular discription of the property;
delivery of such property to him: (b) The applicant is the Owner of the
(1) At the commencement of the action; or property claimed, particularly describing
(2) At any time before the defendant files an
it, or is entitled to the possession thereof;
answer. (Rule 60, Sec. 1)
(c) The property is wrongfully Detained by
The applicant need not be the owner of the the adverse party, alleging the cause of
property. It is enough that he has a right to its detention thereof according to the best of
possession. (Siy v. Tomlin, G.R. No. 205998, his knowledge, information, and belief;
April 24, 2017)

350
 (d) The property has not been Distrained or
taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed under custodia legis, or
if so seized, that it is exempt from such
seizure or custody; and
(e) The Actual market value of the property.
(3) The applicant must also give a bond,
executed to the adverse party in double the
value of the property as stated in the
affidavit aforementioned, for the return of
the property to the adverse party if such
return be adjudged, and for the payment to
the adverse party of such sum as he may
recover from the applicant in the action.
(Rule 60, Sec. 2).
Affidavit and Bond; Redelivery Bond
Contents of the Affidavit
(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:
(a) Distrained or taken for tax assessment or
a fine pursuant to law; or
(b) under writ of execution or preliminary
attachment; or
(c) otherwise placed under custodia legis; or
(d) if so seized, that it is exempt or should be
released (Navarro vs. Escobido, G.R. No.
153788, November 27, 2009); and,
(4) The Actual market value of the property
(Rule 60, Sec. 2).
Replevin is not available when the property is
distrained or taken for tax assessment or a fine
pursuant to law, under writ of execution or
preliminary attachment, under custodia legis, or
if seized, that it is exempt or should be released
(Rule 60, Sec. 2[c]).
NOTE: Property seized in enforcing criminal laws
is in the custody of the law and cannot be
replevied, until such custody is ended. It is true
that property held as evidence in a criminal case
cannot be replevied. But the rule applies only
where the property is lawfully held, that is, seized
in accordance with the rule against warrantless
searches and seizures or its accepted exceptions.
Property subject of litigation is not by that fact
alone in custodia legis (Bagahilog vs. Fernandez,
G.R. No. 96356, June 27, 1991).
Conditions of Replevin Bond
Replevin Bond is the bond executed to the
adverse party intended for the return of the
property to the adverse party, if such return be
adjudged, and for the payment to the adverse
party of such sum as he may recover from the
applicant in the action. (Sec. 2, Rule 60).
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;
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).
A replevin bond is simply intended to indemnify
the defendant against any loss that he may suffer
by being compelled to surrender the possession
of the disputed property pending the trial of the
351
action (Alim vs. Court of Appeals, G.R. No. 93213,
August 9, 1991).
Rationale on the requirement of posting of
the bond double the value of the property
Of all the provisional remedies provided in
the Rules of Court, only Rule 60, Section
2 requires that the amount of the bond
be double the value of the property. The
rationale to the requirement that the bond for a
writ of seizure in a replevin be double the value
of the property. The bond functions not only to
indemnify the defendant in case the property is
lost, but also to answer for any damages that may
be awarded by the court if the judgment is
rendered in defendant's favor(Enriquez vs. The
Mercantile Insurance Co. Inc., G.R. No. 210950,
August 15, 2018).
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 Sheriff to take such property in
his custody (Rule 60, Sec. 3).
Sheriff’s 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 custody within five
(5) days from the taking of the property; and
(4) Keep it in a secure place and deliver the
property to the party entitled thereto upon
receiving his fees and necessary expenses
for taking and keeping the same (Rule 60,
Sec. 4).
If there is no objection to the bond filed within
five (5) days from the taking of the property, the
sheriff shall deliver it to the applicant (Enriquez
vs The Mercantile Insurance Co., Inc., G.R. No.
210950, August 15, 2018).
Service of Writ of Replevin
A writ of replevin may be served and enforced
anywhere in the Philippines. Moreover, the
jurisdiction of a court is determined by the
amount of the claim alleged in the complaint, not
by the value of the chattel seized in ancillary
proceedings (Fernandez vs. The International
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
(a) By filing a redelivery bond executed to the
plaintiff in double the value of the property
as stated in the plaintiff's affidavit within the
period specified in Section 5 and 6 (Citibank,
N.A. vs. Court of Appeals, G.R. No. 61508,
March 17, 1999);
(b) The property is Not delivered to the plaintiff
for any reason (Rule 60, Sec. 6).
352
Redelivery Bond
Redelivery Bond is the bond executed to the
applicant intended for the delivery of the property
to the applicant, if such delivery be adjudged and
for the payment to the applicant of such sum as
he may recover from the adverse party (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 (Rule 60, Sec. 5).
NOTE: A defendant in a replevin suit may demand
return of possession of the property replevied by
filing a redelivery bond within the periods
specified in Sections 5 and 6 of Rule 60. Under
Section 5, petitioner may "at any time before the
delivery of the property to the plaintiff" require
the return of the property; in Section 6, he may
do so, "within five (5) days after the taking of the
property by the officer." Both these periods are
mandatory in character (Yang vs. Valdez, G.R.
No. 73317, August 31, 1989).
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.).
NOTE: Upon the dismissal of the replevin case for
failure to prosecute, the writ of seizure, which is
merely ancillary in nature, became functus officio
and should have been lifted. There was no
adjudication on the merits, which means that
there was no determination of the issue of who
has the better right to possess the subject
property. Advent cannot therefore retain
possession of the subject car considering that it
was not adjudged as the prevailing party entitled
to the remedy of replevin (Advent Capital and
Finance Corporation vs. Young, G.R. No. 183018,
August 3, 2011).
The parties returned to the status quo as if no
case for replevin had been filed. Thus, upon the
dismissal of the case, it was imperative for
petitioner to return the property (Enriquez vs.
The Mercantile Insurance Co., Inc., G.R. No.
210950, August 15, 2018).
Procedure on how will the property be
disposed of by the Sheriff
If within five (5) days after the taking of the
property by the sheriff, the adverse party does
not object to the sufficiency of the bond, or of the
surety or sureties thereon; or if the adverse party
so objects and the court affirms its approval of
the applicant's bond or approves a new bond, or
if the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond:
(1) The property shall be delivered to the
applicant.
(2) If for any reason the property is not
delivered to the applicant, the sheriff must
return it to the adverse party. (Rule 60, Sec.
6).
Duty of the Sheriff in case property taken is
being claimed by a third person
If the property taken is claimed by any person
other than the party against whom the writ of
replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or
right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon
353
the sheriff while the latter has possession of the Effect of the Third-Party Claimant’s
property and a copy thereof upon the applicant: Affidavit
(1) The sheriff shall not be bound to keep the
property under replevin or deliver it to the General Rule Exception
applicant unless the applicant or his agent, Sheriff is not bound When the applicant
on demand of said sheriff, shall file a bond to keep the property or his agent, on
approved by the court to indemnify the third- under replevin or to demand of the
deliver it to the sheriff, files a bond
party claimant in a sum not less than the
applicant. approved by the
value of the property under replevin as court to indemnify
provided in section 2 hereof. the third-party
(3) In case of disagreement as to such value, claimant in a sum not
the court shall determine the same. (Rule less than the value of
60, Sec. 67). the property under
replevin.
Procedure When There is a Third-Party
NOTES:
Claimant
● No claim for damages for the taking or
keeping of the property may be enforced
Any third-party claimant or his agent must: against the bond UNLESS the action therefore
(1) Make an affidavit of his title thereto, or right is filed within 120 days from the date of the
to the possession thereof, stating the filing of the bond.
grounds therefor; ● Filing of a bond is NOT required when the writ
(2) Serves such affidavit upon the sheriff while of replevin is issued in favor of the Republic of
the latter has possession of the property and the Philippines, or any officer duly
a copy thereof upon the applicant (Rule 60, representing it.
Sec. 7). ● Sheriff is not liable for damages against the
third-party claimant if bond is filed (Rule 60,
When the writ of replevin is issued in favor of the Sec. 7).
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not Duty of the Sheriff after the proceedings
be required, and in case the sheriff is sued for
damages as a result of replevin, he shall be The sheriff must file the order, with his
represented by the Solicitor General, and if held proceedings indorsed, thereon, with the court
liable therefor, the actual damages adjudged by within ten (10) days after taking the property
the court shall be paid by the National Treasurer mentioned therein. (Rule 60, Sec. 8).
out of the funds to be appropriated for the
purpose (Rule 60, Sec. 7). Judgment in the Alternative
(1) For the delivery of the chattel to the party
NOTE: A third-party refers to any person other entitled thereto;
(2) For the payment of its value in case delivery
than the party against whom the writ of replevin
cannot be made, and also for such damages
had been issued. He may vindicate his claim to
as either party may approve, with cost (Rule
the property under replevin in the same or 60, Sec. 9).
separate action (Rule 60, Sec. 7).

354
V. SPECIAL CIVIL ACTIONS Must be based on a Not necessarily such as
cause of action in certain special civil
It is kind of action which are governed by the meaning an act or actions:
rules for ordinary civil actions, subject to the omission has 1. Declaratory relief —
specific rules prescribed under Rule 62 to 71 and violated the rights no actual violation of
such as may be declared by the Supreme Court. of another rights
(Tan, Civil Procedure: A Guide For the Bench and 2. Interpleader — no
the Bar, Book III, 2022 Ed., p. 291) interest in the subject
matter
Governing Rules May be filed initially There are some special
in either the MTC civil actions which
Sec. 3, Rule 1 provides that both ordinary and or RTC depending cannot be commenced
special civil actions are governed by the rules for upon the in the MTC, i.e.,
ordinary civil actions, subject to the specific rules jurisdiction amount petitions for certiorari,
prescribed for a special civil action. or the nature of the prohibition and
action mandamus
Nature of a Special Civil Action Ordinary civil Some special civil
actions are filed as actions are filed as
A special civil action is a civil action which aside complaints complaints, but others
from being governed by the rules for ordinary civil are filed as petitions
action is subject to specific rules provided for it. (M. De Leon, Remedial Law Reviewer-Primer,
(M. De Leon, Remedial Law Reviewer-Primer, 2021, p. 344)
2021, p. 343)
Special Civil Actions under the Rules of
It is an action which has reference to special Court
matters requiring special procedure. (Tan, Civil
Procedure: A Guide For the Bench and the Bar, By way of (1) Interpleader (Rule 62);
Book III, 2022 Ed., p. 291) Complaint (2) Reformation of Instrument
(Rule 63);
Under the Rules of Court, there are two (2) types (3) Quieting of Title or Removal
of civil actions: (1) ordinary civil actions; and (2) of Cloud (Rule 63);
special civil actions. Both are governed by the (4) Expropriation (Rule 67);
rules for ordinary civil actions. However, special (5) Foreclosure of Mortgage
civil actions, such as petitions for certiorari, are (Rule 67);
further subject to certain specific rules. (Lim v. (6) Partition (Rule 69); and
Lim, G.R. No. 214163, July 1, 2019) (7) Forcible entry and unlawful
detainer (Rule 70)
Distinguish Ordinary Civil Actions versus By way of (1) Declaratory relief and other
Special Civil Actions Petition similar remedies (Rules 63);
(2) Consolidation of ownership
(Rules 63);
Ordinary Civil Special Civil Actions (3) Certiorari from the judgment
Actions or final orders of the
Governed by rules Generally governed by Commission on Elections or
for ordinary civil rules for ordinary civil Commission on Audit (Rule
actions actions but subject to 64);
special rules (4) Petitions for certiorari,
prohibition and mandamus
(Rule 65);

355
 (5) Quo warranto (Rule 66); Rule on Non-Joinder of Causes of Action
(6) Indirect contempt (Rule 71); involving Special Civil Actions

Special Civil Actions under the Rules
Promulgated by the Supreme Court
Under the Rules of Procedure for Environmental
Cases, (A.M. No. 09-6-08, April 29, 2011), the
following are special civil actions, to wit, by way
of a petition:
(1) Writ of Kalikasan (Sec. 1, Rule 7, Part III,
A.M. No. 09-6-08, Rules of Procedure for
Environmental Cases, April 29, 2011);
(2) Writ of Continuing Mandamus (Sec. 1, Rule
8, A.M. No. 09-6-08)
As expressly mandated by Sec. 5, Rule 2 that “the
joinder shall not include special civil actions or
actions governed by special rules.”
A. JURISDICTION AND VENUE
Venue is governed by the general rules on venue,
except as otherwise indicated in the particular
rules for special civil actions. (M. De Leon,
Remedial Law Reviewer-Primer, 2021, p. 345)

Rules on Jurisdiction over Special Civil Action

Special Civil Action Jurisdiction Venue

Interpleader MTC Personal Property

(Rule 62) Personal Property
DOES NOT EXCEED Residence of either plaintiff or defendant, at the
P2,000,000 (Sec. 33[1], B.P. option of the plaintiff. (Sec. 2, Rule 4)
129 as amended by R.A. No.
11576)
Real Property
Real Property
DOES NOT EXCEED P400,000 Where property is located or a portion of it is
(Sec. 33[3], B.P. 129 as located. (Sec. 1, Rule 4)
amended by R.A. No. 11576)

RTC
Personal Property
EXCEEDS P2,000,000 (Sec.
19[8], B.P. 129 as amended
by R.A. No. 11576)

Real Property
EXCEEDS P400,000 (Sec.
19[2], B.P. 129 as amended
by R.A. No. 11576)

356
Declaratory Relief The Regional Trial Court Where the petitioner or the respondent resides
and Similar Remedies has exclusive orignal at the election of the petitioner. (Sec. 2, Rule 4)
(Rule 63) jurisdiction over petition for
declaratory relief since the
subject matter of the
declaration of rights or the
construction or validity of
matters mentioned under Sec.
1, Rule 63 and therefore the
subject matter of litigation is
one of incapable of pecuniary
estimation under Sec. 19[1] of
B.P. Blg. 129

The Shari’ah District Court

can entertain a petition for
declaratory relief (Sec.
413[c], P.D. 1083)

Review of Supreme Court by Certiorari under Rule 65 (Rule 64, Sec. 2)

Judgments and
Final Orders or Section 7, Article IX-A of the Constitution states that unless otherwise provided
Resolutions of the by the Constitution or by law, any decision, order, or ruling of each Commission
COMELEC and COA may be brought to the Court on certiorari by the aggrieved party within 30 days
(Rule 64) from receipt of a copy thereof. For this reason, the Rules of Court (1997)
contains a separate rule (Rule 64) on the review of the decisions of the
COMELEC and the Commission on Audit. Rule 64 is generally identical
with certiorari under Rule 65, except as to the period of the filing of the petition
for certiorari, that is, in the former, the period is 30 days from notice of the
judgment or final order or resolution sought to be reviewed but, in the latter,
not later than 60 days from notice of the judgment, order or resolution assailed.
(Causing v. Commission on Elections, G.R. No. 199139)

Certiorari, The following courts may RTC, if it is directed against a municipal trial
Prohibition and entertain petitions for court, corporation, board, an officer or a person;
Mandamus certiorari, prohibition and
mandamus, to wit:
(Rule 65) CA or with the SB, whether or not the same is
(a) Supreme Court (Sec. 5, in aid of the court’s appellate jurisdiction;
Art. VIII of the 1987
Constitution; Sec. 1, Rule If the petition involves an act or an omission of
56-A); a quasi-judicial agency, unless otherwise
(b) Court of Appeals (Sec. 9 of provided by law or the Rules, the petition shall
B.P. Blg. 129); be filed with and be cognizable only by the Court

357
 (c) Sandiganbayan (P.D. No. of Appeals;
1606, as amended by R.A.
No. 7975, R.A. No. 8249, In election cases involving an act or omission of
and R.A. No. 10660);
MTC/RTC, it shall be filed exclusively with the
(d) Court of Tax Appeals (Sec.
7, R.A. No. 9282) COMELEC, in aid of its appellate jurisdiction.
(e) Regional Trial Court (Sec. (Sec. 4, Rule 65, ROC, as amended)
21 of B.P. Big. 129); and
(f) Shari'ah District Court
(Art. 413 of P.D. No. 1083,
otherwise known as The
Code of Muslim Personal
Laws of the Philippines).

(Election cases in its appellate

jurisdiction)

Quo Warranto An action can be brought only Where the respondent or any of the
in: respondents resides.
(a) The Supreme Court,
(b) The Court of Appeals, or
When the Solicitor General commences the
(c) The Regional Trial Court
(Sec. 7, Rule 66, ROC, as action, it may be brought in the RTC of the City
amended) of Manila, in the CA, or in the SC.
(d) The Sandiganbayan has (Sec. 7, Rule 66, ROC, as amended)
original jurisdiction in quo
warranto arising in cases
filed under Executive
Order Nos. 1, 2, 14, 14-A,
in aid of its appellate
jurisdiction. (Sec. 4, P.D.
No. 1606)

Expropriation Regional Trial Couty has Real Property: Where the property is located
(Rule 67) exclusive original jurisdiction -
incapable of pecuniary Personal property: the place where the
estimation (Sec. 19 of B.P. plaintiff or defendant resides, at the election of
Big. 129) the plaintiff

Foreclosure of Real RTC, MTC, MTCCs, MCTC,
Estate Mortgage MeTC based on its assessed
(Rule 68) value (B.P. 129 as amended
by R.A. No. 11576)
RTC
• EXCEEDS P400,000 (Sec.
19[2], B.P. 129 as amended
In the proper court which has jurisdiction over
the area wherein the real property involved, or
a portion thereof, is situated. This is because a
foreclosure suit is a real action. (Sec. 1, Rule 4)
In case of Revival of Judgment it may be filed
in the location of the property in case of real
action based on the venue in the original
action.

358
 by R.A. No. 11576)
• Revival of Judgment

MTC - DOES NOT EXCEED

P400,000 (Sec. 33[3], B.P.
129 as amended by R.A. No.
11576)

Partition MTC Personal Property

(Rule 69) Personal Property
DOES NOT EXCEED Residence of either plaintiff or defendant, at the
P2,000,000 (Sec. 33[1], B.P. option of the plaintiff. (Sec. 2, Rule 4)
129 as amended by R.A. No.
11576)
Real Property
Real Property
DOES NOT EXCEED P400,000 Where property is located or a portion of it is
(Sec. 33[3], B.P. 129 as located. (Sec. 1, Rule 4)
amended by R.A. No. 11576)

RTC
Personal Property
EXCEEDS P2,000,000 (Sec.
19[8], B.P. 129 as amended
by R.A. No. 11576)

Real Property
EXCEEDS P400,000 (Sec.
19[2], B.P. 129 as amended
by R.A. No. 11576)

Forcible Entry and Metropolitan Trial Courts, Forcible entry and unlawful detainer actions are
Unlawful Detainer Municipal Trial Courts, and actions affecting possession of real property,
(Rule 70) Municipal Circuit Trial Courts hence, are real actions. The venue of these
shall exercise exclusive actions therefore, is the place where the
original jurisdiction over cases property subject of the action is situated (Rule
of forcible entry and unlawful 4, Sec. 1).
detainer: Provided, That
when, in such cases, the
defendant raises the question
of ownership in his pleadings
and the question of
possession cannot be

359
 resolved without deciding the
issue of ownership, the issue
of ownership shall be resolved
only to determine the issue of
possession. (Sec. 33[2], B.P.
129)

Contempt MTC, RTC, CA, Supreme Court The determination where charge for indirect
(Rule 71) contempt is to be filed depends upon the LEVEL
The power to punish of court against which contemptuous act was
for contempt is inherent in all committed.
courts and is essential to the a) When the act is committed against RTC or
preservation of order in of equivalent or higher rank, or officer
judicial proceedings and to appointed by it - File with the said court
b) When the act is committed against a lower
the enforcement of
court - File with the RTC of the place where
judgments, orders, and lower court is sitting or to the same lower
mandates of the court, and court subject to appeal to RTC. (Rule 71,
consequently, to the due Sec. 5)
administration of justice.
(Harbour Centre Port Quasi judicial bodies that have the power to cite
Terminal, Inc. v. La Filipina the persons for indirect contempt pursuant to
Uygongco Corp., G.R. Nos. Rule 71 of the Rules of Court can only do so by
240984 & 241120, September initiating them in the proper Regional Trial
27, 2021, J. Hernando) 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. (Land Bank of
the Philippines vs. Listana, Sr., G.R. No. 152611,
August 5, 2003)

B. INTERPLEADER claims among themselves. (Riano, Civil Procedure

(RULE 62) Volume II, 2016, p. 130)

An interpleader is a special civil action filed by

The action of interpleader is a remedy whereby a
a person against whom two conflicting claims are
person who has property in his possession or has
made upon the same subject matter and over
an obligation to render wholly or partially, without
which he claims no interest whatever, or if he has
claiming any right in both, comes to court and
an interest, it is one which, in whole or in part, is
asks that the defendants who have made upon
not disputed by the claimants. The action is
him conflicting claims upon the same property or
brought against the conflicting claimants to
who consider themselves entitled to demand
compel them to interplead and litigate their
compliance with the obligation be required to

360
litigate among themselves in order to determine without exposing the stakeholder to the
who is entitled to the property or payment of the possibility of having to pay more than once on a
obligation. The remedy is afforded not to protect single liability. "In short, the remedy
a person against a double liability but to protect of interpleader, when proper, merely provides an
him against a double vexation in respect of one avenue for the conflicting claims on the same
liability. (Beltran v. People's Homesite & Housing subject matter to be threshed out in an action."
Corp., G.R. No. L-25138, August 28, 1969) (Bureau of Internal Revenue v. TICO Insurance
Co., Inc., G.R. No. 204226, April 18, 2022, J.
When the court orders that the claimants litigate Hernando)
among themselves, there arises in reality a new
action and the former are styled interpleaders, Distinguish Interpleader from Intervention
and in such a case the pleading which initiates
the action is called a complaint of interpleader Interpleader Intervention
and not a cross-complaint. (Ocampo vs. Tirona, Interpleader is an Intervention is an
G.R. No. 147812, April 6, 2005) original action; ancillary action;
Interpleader Intervention is proper
presupposes that the in any of the four
Interpleader may be considered as a
plaintiff has no situations mentioned
stakeholder's remedy to prevent a wrong, that is, interest in the subject in Rule 19 wherein a
from making payment to one not entitled to it, matter of the action third person has a
thereby rendering itself vulnerable to lawsuit/s or has an interest legal interest over the
from those legally entitled to payment. (Bank of therein which, in subject matter of the
Commerce vs. Planters Development Bank and whole or in part, is action, or in the
Bangko Sentral ng Pilipinas, GR Nos. 154589-90, not disputed by the success of either or
other parties to the both the defendant,
September 24, 2012)
action; or will be greatly
affected in the
Purpose disposition of the
property subject of
To compel conflicting claimants to interplead and the action;
litigate their several claims among themselves. In interpleader the In a complaint in
(Rule 62, Sec. 1) defendants are being intervention, the
sued precisely to defendants are
implead them; already original
The special civil action of interpleader is designed parties to the
to protect a person against double vexation in pending suit;
respect of a single liability. It requires, as an Interpleader can be Intervention can be
indispensable requisite, that conflicting claims commenced by filing availed of by filing a
upon the same subject matter are or may be a complaint before motion with leave of
made against the stakeholder (the possessor of the proper court; court to file
intervention together
the subject matter) who claims no interest
with the attached
whatsoever in the subject matter or an interest pleading in
which in whole or in part is not disputed by the intervention;
claimants. Through this remedy, the stakeholder In case of adverse In case of denial of
can join all competing claimants in a single decision in intervention, the
proceeding to determine conflicting claims interpleader the aggrieved party may
remedy of the file an appeal or file

361
 aggrieved party is to the claim in a
file an appeal; separate action;
In interpleader, the In intervention, the
period to file answer period to file answer
is within fifteen (15) to the complaint-in-
days from service of intervention is within
summons. fifteen (15) days from
notice of the order
admitting the
Intervention.
(Tan, Civil Procedure: A Guide For the Bench and
the Bar, Book III, 2022 Ed., p. 291)
Requisites for interpleader
(a) The plaintiff claims no interest in the subject
matter or, his claim is not disputed;
(b) There must at least be two or more
conflicting claimants;
(c) The parties to be interpleaded must make
effective claims; and
(d) The subject matter must be one and the
same and derived from the same source. (M.
De Leon, Remedial Law Reviewer-Primer,
2021, p. 346)
Who may File
A person may file a specil civil action for
interpleader if conflicting claims are made against
him or her over a subject matter in which he or
she has no interest. The action is brought against
the claimants to compel them to litigate their
conflicting claims among themselves. (Rule 62,
Sec. 1)
An interpleader complaint may be filed by a
lessee against those who have conflicting claims
over the rent due for the property leased. This
remedy is for the lessee to protect him or her
from "double vexation in respect of one liability."
He or she may file the interpleader case to
extinguish his or her obligation to pay rent,
remove him or her from the adverse claimants'
dispute, and compel the parties with conflicting
claims to litigate among themselves. (Lui
Enterprises, Inc. v. Zuellig Pharma Corp., G.R.
No. 193494, March 12, 2014)
When to file
An action for interpleader must be filed within a
reasonable time after the dispute has arisen,
otherwise it may be barred by laches. (Tan, Civil
Procedure: A Guide For the Bench and the Bar,
Book III, 2022 Ed., p. 316)
A stakeholder, meaning a person entrusted with
the custody of property or money that is subject
of ligitation or of contention between rival
claimants in which the holder claims no right or
property interest, should use reasonable diligence
to hale the contending claimants to court. He
need not await actual institution of independent
suits against him before filing a bill
of interpleader. He should file an action
of interpleader within a reasonable time after a
dispute has arisen without waiting to be sued by
either of the contending claimants. Otherwise, he
may be barred by laches or undue delay. But
where he acts with reasonable diligence in view
of the environmental circumstances, the remedy
is not barred. (Wack Wack Golf & Country Club,
Inc. v. Won, G.R. No. L-23851, March 26, 1976)
When a stakeholder's action is 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,
the interpleader suit is too late and will be barred
by laches or undue delay. (ibid.)
Instance Where Interpleader is Proper
Interpleader was found to be a proper action in
an action by a lessee who does not know to whom
to pay rentals due to conflicting claims on the
property. METROCAN filed the interpleader action
362
(Civil Case No. 4398-V-94) because it was unsure
which between LEYCON and RCBC was entitled to
receive the payment of monthly rentals on the
subject property. LEYCON was claiming payment
of the rentals as lessor of the property while RCBC
was making a demand by virtue of the
consolidation of the title of the property in its
name (Rizal Commercial Banking Corporation vs.
Metro Container Corporation, G.R. No. 127913,
September 13, 2001).
Instances Where Interpleader is not
Available
Where the two defendant-government
corporations sought to be interpleaded as
conflicting claimants have no conflicting claims
against plaintiffs (tenants), the special civil action
of interpleader will not lie. While the two
defendants corporations may have conflicting
claims between themselves with regard to the
management, administration and ownership of
Project 4, such conflicting claims are not against
the plaintiffs nor do they involve or affect the
plaintiffs. (Beltran v. People's Homesite &
Housing Corp., G.R. No. L-25138, August 28,
1969)
There is no conflicting claims among the
defendants — their respective claims being
separate and distinct from the other — and that
the plaintiffs have interest (the prolongation of
their occupancy or possession of the portions
encroached upon by them), the requirements for
an action to interplead do not exist, and
consequently, the complaint of interpleader in
question is without cause of action. (Vda. de
Camilo v. Arcamo, G.R. No. L-15653, September
29, 1961)
Procedure in interpleader
(1) The stakeholder files a complaint against the
conflicting claimants.
(2) Upon the filing of the complaint, the court
shall issue an order requiring the conflicting
claimants to interplead with each other.
(3) Summons shall be served upon the the
conflicting claimants, together with a copy of
the complaint and order.
(4) Within the time for filing an answer, each
claimant may file a motion to dismiss on the
ground of impropriety of the interpleader or
on other grounds in Sec. 16.
(5) Each claimant shall file his answer setting
forth his claim within 15 days from service of
summons, serving a copy upon each of the
other conflicting claimants who may file their
reply thereto. A claimant who fails to timely
file his answer may, on motion, be declared
in default and thereafter the court may
render judgment barring him from any claim
regarding the subject matter.
(6) The court shall proceed to determine the
respective rights of the conflicting claimants
and to adjudicate their several claims.
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., pp. 882-883)
Order to Interplead
Upon the filing of the complaint, the court shall:
(1) Issue an order requiring the conflicting
claimants to interplead with one another.
(2) If the interests of justice so require, the
court may direct in such order that the
subject matter be paid or delivered to the
court (Rule 62, Sec. 2)
Service of Summons
Summons shall be served upon the conflicting
claimants, together with a copy of the complaint
and order (Rule 62, Sec. 3)
Note: The rules on summons on interpleader are
also governed by Rule 14 on Summons.
Grounds for issuance of Motion to Dismiss
Within the time for filing an answer (within fifteen
(15) days from service of the summons upon
him), each claimant may file a motion to dismiss
on the ground of:
(1) impropriety of the interpleader action or
(Rule 62, Sec. 4)
(2) Allowable grounds for a motion to dismiss,
namely:
363
 (a) Lack of jurisdiction over the subject
matter
(b) Litis pendentia
(c) Res judicata
(d) Prescription (Sec. 12[a], Rule 15)
Effect of filing motion to dismiss; Remedy
in case of denial of the motion to dismiss
The period to file the answer shall be tolled and
if the motion is denied, the movant may file his
answer within the remaining period, but which
shall not be less than five (5) days in any event,
reckoned from notice of denial. (Rule 62, Sec. 4)
Answer and Other Pleadings
Each claimant shall file:
(1) His answer setting forth his claim within
fifteen (15) days from service of the
summons upon him, serving a copy thereof
upon each of the other conflicting claimants
(2) Claimants served with answer may file their
reply thereto as provided by these Rules.
Effect of failure to file an answer within the
time allowed
If any claimant fails to plead within the time
herein fixed, the court may, on motion:
(1) declare him in default and
(2) thereafter render judgment barring him
from any claim in respect to the subject
matter. (Rule 62, Sec. 5[1])
Other Pleadings that may be Filed in an
Interpleader; Remedies
The parties in an interpleader action may file:
(a) counterclaims,
(b) cross-claims,
(c) third-party complaints and
(d) responsive pleadings thereto, as provided by
these Rules. (Rule 62, Sec. 5[2])
Effect When a Claimant Fails to Plead
Within the Time Fixed
At any rate, an adverse claimant in an
interpleader case may be declared in default.
Under Rule 62, Section 5 of the 1997 Rules of Civil
Procedure, a claimant who fails to answer within
the required period may, on motion, be declared
in default. The consequence of the default is that
the court may "render judgment barring the
defaulted claimant from any claim in respect to
the subject matter." The Rules would not have
allowed claimants in interpleader cases to be
declared in default if it would "ironically defeat
the very purpose of the suit." (Lui Enterprises,
Inc. v. Zuellig Pharma Corporation and the
Philippine Bank of Communications, G.R. No.
193494, March 12, 2014)
Determination and Adjudication of Claims
After the pleadings of the conflicting claimants
have been filed, and pre-trial has been conducted
in accordance with the Rules, the court shall:
(1) Proceed to determine their respective rights
and
(2) Adjudicate their several claims. (Rule 62,
Sec. 6)
Lien upon the Subject Matter
General Rule Exception
The docket and other lawful Unless the
fees paid by the party who court shall
filed a complaint under this order
Rule, as well as the costs and otherwise.
litigation expenses, shall
constitute a lien or change
upon the subject matter of
the action,
(Rule 62, Sec. 7)
The conflicting claimants themselves. Since the
defendants-in-interpleader are actually the ones
who make a claim - only that it was
extraordinarily done through the procedural
364
device of interpleader - then to them devolves the
duty to pay the docket fees prescribed under Sec.
7 Rule 141. Sec. 7 Rule 62 pertains only to the
docket fees for initiating the interpleader suit
itself not the claims subject thereof since the one
who initiated the interpleader suit claims no
interest whatsoever in the subject matter.
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 887 citing Bank of Commerce v.
Planters Development Bank, G.R. Nos. 154470-71
& 154589-90, September 24, 2012)
C. DECLARATORY RELIEF AND SIMILAR
REMEDIES (RULE 63)
Two types of actions under Rule 63
(1) Petition for declaratory relief, and
(2) Similar remedies
(a) Action for reformation of an instrument;
(b) Action to quiet title or remove clouds
therefrom, and
(c) Action to consolidate ownership over
real property by the vendee a retro
pursuant to Art. 1607, CC (Sec. 1, Rule
63)
Note: There is yet no cause of action in a strict
sense under declaratory relief (Bengzon, Lectures
in Remedial Law, 1959 Edition, p. 242)
Where the law on declaratory judgment permits
in certain specific instances, inquiry on
questions of fact during the proceeding, the
prevailing rule is that “where a declaratory
judgment as to a disputed fact would be determi
native of issues rather than a construction of def
inite stated rights, status, and other relations,
commonly in written instruments, the case is
not one for declaratory judgment." (Poco v.
Commissioner of Immigration, G.R. No. L-22313,
March 31, 1966)
Definition
A petition for declaratory relief is an action
instituted by a person interested in a deed, will,
contract or other written instrument, executive
order or resolution, to determine any question of
construction or validity arising from the
instrument, executive order or regulation, or
statute and for a declaration of his
rights and duties thereunder. (Commissioner of
Internal Revenue v. Standard Insurance Co., Inc.,
G.R. No. 219340 (Resolution), April 28, 2021, J.
Hernando)
It must be filed before the breach or
violation of the statute, deed or contract to
which it refers; otherwise, the court can no
longer assume jurisdiction over the action. Thus,
"[t]he only issue that may be raised in such
an action is the question of construction or
validity of provisions in an instrument or statute.
(Commission on Audit v. Pampilo, Jr., G.R. Nos.
188760, 189060 & 189333, June 30, 2020, J.
Hernando)
Purpose
To determine any question of construction or
validity arising from subject action issue, and to
seek for a declaration of petitioner‘s right
thereunder remedy (Sec. 1, Rule 63; Bureau of
Internal Revenue v. First E-Bank Tower
Condominium Corp., G.R. Nos. 215801 & 218924,
January 15, 2020)
An action for declaratory relief presupposes that
there has been no actual breach of instruments
involved or of the 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
365
therewith, and not to settle issues arising from a
n alleged breach thereof, it may be entertained
before the breach or violation of the statute,
the statute, deed or contract to which it refers.
A petition for declaratory relief gives a practical
remedy for ending controversies that have not
reached the state where another relief is
immediately available; and supplies the need
for a form of action that will set controversies at
rest before they lead to a repudiation of
obligations, an invasion of rights, and a (3) Contract or other written instrument;
commission of wrongs. (Department of Trade
and Industry v. Steelasia Manufacturing Corp.,
G.R. No. 238263, November 16, 2020)
Certiorari, or prohibition, not declaratory relief, is
the proper remedy to assail the validity or
constitutionality of executive issuances (Bureau
of Internal Revenue v. First E-Bank Tower
Condominium Corp., G.R. Nos. 215801 & 218924,
January 15, 2020)
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 (Department of Finance
v. Dela Cruz, Jr., G.R. No. 209331, [August 24,
2015 citing Malana v. Tappa, G.R. No. 181303, 17
September 2009).
Petition for declaratory relief may be
treated as one for prohibition
A petition for declaratory relief may be treated as
one for prohibition if the case has far-reaching
implications and raises questions that need to be
resolved for the public good; or if the assailed act
or acts of executive officials are alleged to have
usurped legislative authority (Association of
International Shipping Lines, Inc. v. Secretary of
Finance, G.R. No. 222239, January 15, 2020)
Subject matter of Petition for Declaratory
Relief
The subject matter in a petition for declaratory
relief is any of the following:
(1) Deed
(2) Will
(4) Statute
(5) Executive order or regulation
(6) Ordinance, or
(7) Any other government regulation. (Sec. 1,
Rule 63; Commissioner of Internal Revenue
v. Standard Insurance Co., Inc., G.R. No.
219340 (Resolution), April 28, 2021, J.
Hernando)
Enumeration of the subject matter of a
declarory relief is exclusive
The enumeration is exclusive. Hence, an action
not based on any of those enumerated cannot be
the proper subject of declaratory relief.
(a) sufficiency or probative value of evidence,
declaration of Philippine citizenship
(Santiago v. Commissioner of Immigration,
31 January 1963); Declaration of Citizenship
and Registration Certificate – unilateral in
nature and without conflicting adverse
interest. (Tambunting Jr. vs. Sumabat, G.R.
No. 144101, September 16, 2005).
(b) determination of hereditary rights and status
(Edades v. Edades, 52 0.G. 5149),
(c) a court decision (DILG v. Gatuz, 14 October
2015), and
(d) orders, resolutions, or decisions of quasi-
judicial bodies (id.) may not be the subject
matter of an action for declaratory relief.
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 888)
Where to File Declaratory Relief
Jurisdiction
366
 General Exclusive and original
Rule jurisdiction is with the RTC since
the subject in a petition for
declaratory relief is incapable of
pecuniary estimation. (Sec. 19,
B.P.129, as amended by R.A.
7691).
The SC has no original
jurisdiction over these petitions,
only appellate jurisdiction.
(Laya, Jr. v. Philippine Veterans
Bank, G.R. No. 205813, January
10, 2018)
Exception Where the action is a
proceeding similar to declaratory
relief (e.g. quieting of title to
real property), jurisdiction will
depend on the assessed value of
the property. (Malana v. Tappa,
G.R. No. 181303 2009)
If the petition has far- reaching
implications and raises questions
that should be resolved, the
Supreme Court may treat the
petition as one for prohibition or
mandamus and take cognizance
thereof. (Alliance of Gov't
Workers v. Minister of Labor and
Employment, 124 SCRA 7)
Who May File Action
Any person:
(a) Interested under a deed, will, contract or
other written instrument,
(b) Whose rights are affected by a statute,
executive order or regulation, ordinance, or
any other governmental regulation, and
(c) Who files before the breach or violation
thereof. (Sec. 1, Rule 63)
All persons who have or claim any interest which
would be affected by the declaration shall be
made parties; and no declaration shall, except as
otherwise provided in these Rules, prejudice the
rights of persons not parties to the action.
(Rule 63, Sec. 2).
Parties to the action
(a) All persons who have or claim any interest
which would be affected by the declaration
(Sec. 2, Rule 63).
(b) In any action which involves the validity of a
statute, executive order or regulation, or any
other governmental regulation, the Solicitor
General shall be notified by the party
assailing the same and shall be entitled to be
heard upon such question (Sec. 3, Rule 63).
(c) In any action involving the validity of a local
government ordinance, the corresponding
prosecutor or attorney of the local
governmental unit involved shall be similarly
notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional,
the Solicitor General shall also be notified
and entitled to be heard (Sec. 4, Rule 63).
Note: Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall
not be prejudiced in their interests unless
otherwise provided by the Rules. (Baguio Citizens
Action v. City Council of Baguio, G.R. No. L-
27247, 1983)
Notice on Solicitor General
In dismissing the action, the trial court cited Rule
63, Section 3 of the Rules of Court, in that the
Solicitor General was required to be impleaded in
all actions where the validity of a statute was in
question. The Rules, however, only require that
notice be given to the Solicitor General. They do
not state that if the Solicitor General fails to
participate in the action, the action would be
dismissed. (Zomer Development Co., Inc. v.
Special Twentieth Division of the Court of
Appeals, Cebu City, G.R. No. 194461, January 7,
2020)
The Administrative Code provides that the
Solicitor General shall appear in any action
involving the validity of a statute "when in his or
367
her judgment his intervention is necessary or
when requested by the Court." (ibid.)
In this instance, the trial court sent a copy of the
Complaint to the Office of the Solicitor
General. The Office of the Solicitor General,
however, did not participate in the case. The
failure of the Office of the Solicitor General to
participate, however, should not prejudice a
litigant's cause. (ibid.)
The trial court dismissed the action on the ground
that the Solicitor General may be deprived of due
process. Due process, however, has already been
accorded to the Solicitor General when he/she
was furnished with a copy of the Complaint. The
Solicitor General's failure to comment on the
Complaint should have the effect of waiving his
or her right to participate in the case. To hold
otherwise would be to give the Solicitor General
more power than what the law grants. The
Solicitor General does not have and should not
have unbridled control over cases that were
originally filed between private parties. (ibid.)
Representative in case involving the
validity of local ordinances
In any action involving the validity of a local
government ordinance, the state shall be
represented by:
(1) The corresponding prosecutor or attorney of
the local governmental unit involved shall be
similarly notified and entitled to be heard.
(2) If such ordinance is alleged to be
unconstitutional, the Solicitor General shall
also be notified and entitled to be heard.
(Sec. 4, Rule 63).
Requisites of an Action for Declaratory
Relief
The said action must comply with the following
requisites:
(a) the subject matter of the controversy must
be a deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance;
(b) the terms of said documents and the validity
thereof are doubtful and require judicial
construction;
(c) there must have been no
breach of the documents in question;
(d) there must be an actual justiciable
controversy or the "ripening seeds" of one
between persons whose interests are
adverse; (5) the issue must be
ripe for judicial determination; and
(e) adequate relief is not available through
other means or other forms of action or
proceeding. (Commissioner of Internal
Revenue v. Standard Insurance Co., Inc.,
G.R. No. 219340 (Resolution), April 28,
2021, J. Hernando)
A justiciable controversy refers to “an existing
case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory,
lest the decision of the court would amount to an
advisory opinion." (In Re Supreme Court Judicial
Independence v. Judiciary Development Fund,
UDK-15143 (Resolution), January 21, 2015)
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).
Note: In declaratory relief, the court is given the
discretion to act or not on the petition. On the
other hand, the court does not have the
discretion to refuse to act with respect to actions
described as similar remedies. Thus, in an action
for reformation of an instrument, to quiet title or
to consolidate ownership, the court cannot refuse
to render a judgment (Rule 63, Sec.5).
368
 General The court, motu proprio or upon
Rule motion, may refuse to exercise Proceedings Considered as Similar
the power to declare rights and Remedies
to construe instruments in any
case where a decision would not
These remedies are considered similar to
terminate the uncertainty or
controversy which gave rise to declaratory relief because they also result in the
the action, or in any case where adjudication of legal rights of the litigants, often
the declaration or construction without the need of execution to carry the
is not necessary and proper judgment into effect:
under the circumstances.
Exception Actions falling under the 2nd par
(i) An action for the reformation of an
of Sec. 1, Rule 63
instrument, recognized under Articles 1359
(a) An action for the reformation
to 1369 of the Civil Code;
of an instrument, recognized
(ii) An action to quiet title to real property or to
under Articles 1359 to 1369
remove clouds therefrom, authorized by
of the Civil Code;
Articles 476 to 481 of the Civil Code; and
(b) An action to quiet title,
(iii) An action to consolidate ownership required
authorized by Articles 476 to
by Article 1607 of the Civil Code in a sale
481 of the Civil Code;
with a right to repurchase. (Malana v. Tappa,
(c) An action to consolidate
G.R. No. 181303, September 17, 2009)
ownership required by
Article 1607 of the Civil Code
(i) Reformation of an Instrument
in a sale with a right to
repurchase. (Sec. 5, Rule
63) Definition
(d) Conversion to Ordinary
Action Reformation is a remedy in equity whereby a wri
tten instrument is made or construed so as to ex
The action may be converted into an press or conform to the real intention of the part
ordinary action if: ies, where someerror or mistake has been comm
itted. In granting reformation, the remedy in eq
(a) Before the final termination of the case, uity is not making a new contract for the parties,
(b) A breach or violation of an instrument or a but establishing and perpetuating the real
statute, executive order, regulation,
contract between the parties which, under the
ordinance, or any other governmental
technical rules of law, could not be enforced but
regulation should take place.
for such reformation. (Spouses Covita v.
Note: The parties shall be allowed to file such Marcelino, G.R. No. 239178 (Notice), March 2,
pleadings as may be necessary or proper. (Sec. 2022)
6, Rule 63)
Requisites for reformation
It will not prosper when brought after a contract
or a statute has already been breached or In order for an action for reformation of
violated. If there has already been a breach, the instrument to prosper the following requisites
appropriate ordinary civil action and not must concur:
declaratory relief should be filed (City of Lapu- (1) there must have been a meeting of the
minds of the parties to the contract;
Lapu v. PEZA, G.R. No. 184203, 2014)

369
(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. (Spouses Covita v. Marcelino, G.R.
No. 239178 (Notice), March 2, 2022)
Burden of proof
The onus probandi is upon the party who insists
that the contract should be reformed. Moreover,
the presumption is that an instrument sets out
the true agreement of the parties thereto and
that it was executed for valuable consideration.
(Multi-Ventures Capital and Management Corp. v.
Stalwart Management Services Corp., G.R. No.
157439, July 4, 2007)
Prescriptive period
In an action for reformation, the plaintiff has 10
years within which to bring it from the time the
right of action accrued. (Veluz v. Veluz, G.R. No.
L-23261, 1968)
Instances where the remedy of reformation
is proper
Arts. 1359-1365 of the New Civil Code provide for
the remedy of reformation of instrument in the
following instances, to wit:
(a) When there having been a meeting of the
minds of the parties to a contract, their
true intention is not expressed in the
instrument purporting to embody the
agreement, by reason of mistake, fraud,
inequitable conduct or accident, one of the
parties may ask for the reformation of the
instrument to the end that such true
intention may be expressed. (Art. 1359,
NCC)
(b) When a mutual mistake of the parties
causes the failure of the instrument to
disclose their real agreement, said
instrument may be reformed. (Art. 1361,
NCC)
(c) If one party was mistaken and the other
acted fraudulently or inequitably in such a
way that the instrument does not show
their true intention, the former may ask for
the reformation of the instrument. (Art.
1362, NCC)
(d) When one party was mistaken and the
other knew or believed that the instrument
did not state their real agreement, but
concealed that fact from the former, the
instrument may be reformed. (Art. 1363,
NCC)
(e) When through the ignorance, lack of skill,
negligence or bad faith on the part of the
person drafting the instrument or of the
clerk or typist, the instrument does not
express the true intention of the parties,
the courts may order that the instrument
be reformed. (Art. 1364, NCC)
(f) If two parties agree upon the mortgage or
pledge of real or personal property but the
instrument states that the property is sold
absolutely or with a right of repurchase,
reformation of the instrument is proper.
(Art. 1365, NCC)
(Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book III, 2022 Ed., p. 359)
Instances where the remedy of reformation
is NOT proper
Arts. 1359, 1366, and 1367 of the New Civil Code
provides for the instances where the remedy of
reformation of instrument is not proper in the
following instances, to wit:
(a) If mistake, fraud, inequitable conduct, or
accident has prevented a meetingofthe
minds ofthe parties, the proper remedy is
not reformation of the instrument but
annulment of the contract. (Art. 1359, NCC)
370
(b) There shall be no reformation in the
following cases:
(1) Simple donations inter vivos wherein no
condition is imposed;
(2) Wills;
(3) When the real agreement is void. (Art.
1366, NCC)
(c) When one of the parties has brought an
action to enforce the instrument, he cannot
subsequently ask for its reformation. (Art.
1367, NCC)
(ii) Consolidation of Ownership
In case of real property, the consolidation of
ownership in the vendee by virtue of the failure
of the vendor to comply with the provisions of Art.
1616 shall not be recorded in the Registry of
Property without a judicial order, after the vendor
has been duly heard. (Art. 1607, NCC)
Period to exercise right to repurchase

(Tan, Civil Procedure: A Guide for the Bench and The vendor may still exercise the right to
the Bar, Book III, 2022 Ed., pp. 359-360) repurchase with 30 days from the time final
judgment was rendered in a civil action on the
Distinction between a reformation of basis that the contract was a true sale with right
instrument and annulment of contract to repurchase (Art. 1606, NCC; Tan, Civil
Procedure: A Guide for the Bench and the Bar,
Reformation of Annulment of Book III, 2022 Ed., p. 374)
Instrument Contract
The action for Annulment of a contract,
The vendor cannot avail himself of the right
reformation of on the other hand,
instrument should presupposes a defective of repurchase without returning to the
not be confused contract in which the vendee the price of the sale, and in
with the action for minds of the parties did addition:
annulment of not meet, or the consent
contract. of one was vitiated. The (1) The expenses of the contract, and any other
Reformation of equity of reformation is legitimate payments made by reason of the
instrument ordinarily limited to sale;
presupposes a written agreements, and (2) The necessary and useful expenses made on
valid, existing its purpose is to establish the thing sold. (Art. 1616, NCC)
contract, in which and perpetuate the true
there had been a agreement; annulment,
Purpose of consolidation of ownership
meeting of the on the other hand, is
minds of the intended to declare the
parties but the inefficiency which the The action brought to consolidate ownership is
instrument drawn contract already carries not for the purpose of consolidating the
up and signed by in itself and to render the ownership of the property in the person of the
them does not contract inefficacious. vendee or buyer but for the registration of the
correctly express (Ernesto Veiuz, vs. property.
the terms of their Socorro Veluz, et al.,
agreement. G.R. No. L-23261, July
31, 1968) The consolidation of title prescribed in Article
(Tan, Civil Procedure: A Guide for the Bench and 1607 of the Civil Code is merely for the purpose
the Bar, Book III, 2022 Ed., p. 360) of registering and consolidating title to the
property in case of a vendor a retro's failure to
redeem. Here, the trial court's Decision (affirmed
by both the CA and the SC) merely resolved the

371
issue of consolidation of ownership over the
subject property. Possession and ownership are
distinct legal concepts. A judgment in favor of
ownership, therefore, does not necessarily
include possession as a necessary
incident. (Spouses Latoja v. Lim, G.R. No.
198925, July 13, 2016)
The lapse of the redemption period without the
seller retro exercising his right of redemption
consolidates ownership or title upon the person
of the vendee by operation of law. (Rosario v.
Rosario, G.R. No. L-13018, 1960)
Modes of Extinguishment
(1) Legal redemption - 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, New
Civil Code).
(2) Conventional redemption - one that is not
mandated by the statute but which takes
place because of the stipulation of the
parties to the sale (Riano, Civil Procedure,
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.
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 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
acquire ownership thereof. It is NOT a real action
(Riano, Civil Procedure Vol. II, 2016 ed., p. 152).
iii. Quieting of Title to Real Property
The proceeding to quiet of title of or to remove
the cloud over one's property is a special
civilaction, remedial in nature, which has for its
purpose an adjudication that a claim of title or an
interest in property, adverse to that of the
complainant, is invalid, so that the complainant
and those claiming under him may be forever
afterward free from any danger of the hostile
claim. This action is for the protection of the true
title and possession and for the promotion of right
372
and justice. (Almeyda v. &was, 64757-R, January
21, 1982; Tan, Civil Procedure: A Guide for the
Bench and the Bar, Book III, 2022 Ed., p. 365)
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, Civil Procedure Vol.
II, 2016 ed., 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.
An action for quieting of title is essentially a
common law remedy grounded on equity. The
competent court is tasked to determine the
respective rights of the complainant and other
claimants, not only to place things in their proper
place, to make the one who has no rights to said
immovable respect and not disturb the other, but
also for the benefit of both, so that he who has
the right would see every cloud of doubt over the
property dissipated, and he could afterwards
without fear introduce the improvements he may
desire, to use, and even to abuse the property as
he deems best. (Viloria v. Heirs of Gaetos, G.R.
No. 206240, May 12, 2021, J. Hernando)
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).
In an action for quieting of title, said action is, in
fact, not a collateral attack but a direct attack
thereto since it is essential in such action that
respondents show the invalidity of the deed
which casts a cloud on their title over the subject
property. In other words, a complaint
for quieting of title does not amount to a
collateral attack because at the heart of the
action for quieting of title is the
adjudication of the ownership of the disputed
property and the consequent nullification of the
questioned certificates of title, if so, warranted by
the circumstances of the case. (Heirs of Marquez
v. Heirs of Hernandez, G.R. No. 236826, March
23, 2022, J. Hernando)
Requisites for Quieting of Title
(1) The plaintiff or complainant has a legal or an
equitable title to or interest in the real
property subject of the action, and
(2) The deed, claim, encumbrance, or
proceeding claimed to be casting cloud on
his title must be shown to be in fact invalid
or inoperative despite its prima facie
appearance of validity or legal efficacy.
(Mananquil v. Moico, G.R. No. 180076,
November 21, 2012)
Burden of proof
In an action for quieting of title, the plaintiff has
the burden to show by preponderance of
evidence that they have a legal and equitable
title to or interest in the real property subject of
the action. (Viloria v. Heirs of Gaetos, G.R. No.
206240, May 12, 2021, J. Hernando)
Jurisdiction for 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).
373
D. CERTIORARI, PROHIBITION,
MANDAMUS (RULE 65)
Remedies available under Rule 65
ule 65 of the 1997 Rules of Civil Procedure
provides for the following extraordinary
remedies, as follows, to wit:
(a) Certiorari (Sec. 1, Rule 65);
(b) Prohibition (Sec. 2, Rule 65); and
(c) Mandamus (Sec. 3, Rule 65).
(a) DEFINITION AND DISTINCTIONS
Certiorari
Definition Certiorari is an
extraordinary writ annulling
or modifying the
proceedings of a tribunal,
board or officer exercising
judicial or quasi-judicial
functions when such
tribunal, board or officer
has acted without or in
excess of its or his
jurisdiction, or with grave
abuse of discretion
amounting to lack or
excess of jurisdiction, there
being no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law
(Sec. 1, Rule 65)
The latin word "certiorari"
literally means "to be
informed of, to be made
certain in regard to..."
(Black's law dictionary)
Certiorari will issue only to
correct errors of jurisdiction
and not to correct errors of
procedure or mistakes in
the court's findings and
conclusions (Lee vs. People
393 SCRA 397; Microsoft
Corporation vs. Best Deal
AND
Prohibition
Prohibition is an
extraordinary writ
commanding 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 abuse of its
discretion, there being no
appeal or any other plain,
speedy and adequate
remedy in the ordinary
course of law (Sec. 2, Rule
65).
It is the proper remedy if it
can be shown that there is
neglect on the part of a
tribunal or officer in the
performance of an act
which the law specifically
enjoins as a duty or an
unlawful exclusion of a
party from the use and
enjoyment of a right or
office to which he is
entitled.
Mandamus
Mandamus is an
extraordinary writ
commanding a tribunal,
corporation, board or
person, to do an act
required to be done: (a)
When he unlawfully
neglects the performance
of an act which the law
specifically enjoins as a
duty, and there is no other
plain, speedy and adequate
remedy in the ordinary
course of law; or (b) When
one unlawfully excludes
another from the use and
enjoyment of a right or
office to which the other is
entitled (Sec. 3, Rule 65)
A petition for quo warranto
is a proceeding to
determine the right of a
person to the use or
exercise of a franchise or
office and to oust the
holder from its enjoyment,
if his claim is not well-
founded, or if he has
forfeited his right to enjoy
the privilege (Mendoza vs.
Allas, 302 SCRA 623 1999).
374
 Certiorari
Computer Center, 389
SCRA 615).
Objective To annul or modify the
proceedings of such
tribunal, board or officer.
Intention Certiorari is intended to
correct an act performed
by the respondents.
Grounds Entity or person is alleged
to have acted:
• Without jurisdiction;
• In excess of jurisdiction;
or
• With grave abuse of
discretion amounting to
lack or excess of
jurisdiction
Coverage Certiorari extends only to
discretionary acts;
Availability Certiorari shall lie only
against a respondent
exercising judicial or quasi-
judicial functions
Nature of Corrective remedy:
Remedy
To correct a lack of or
usurpation of jurisdiction
(Tan, Civil Procedure: A Guide for the Bench and the Bar, Book III, 2022 Ed., pp. 406-407; M. De Leon,
Remedial Law Reviewer-Primer, 2021, p. 357-358)
Prohibition
To command the
respondent to desist from
further proceedings in the
action or matter specified
therein.
Prohibition is intended to
prevent the commission or
carrying out of an act;
Entity or person is alleged
to be acting or threatening
to act
• Without jurisdiction;
• In excess of jurisdiction;
or
• With grave abuse of
discretion amounting to
lack or excess of
jurisdiction.
Prohibition, to discretionary
and ministerial acts;
Prohibition is available
against respondents who
exercise judicial and/or
non-judicial functions.
Negative and preventive
remedy:
To restrain or prevent
usurpation of jurisdiction
Mandamus
To command the
respondent, immediately or
some other time to be
specified by the court to do
the act required to be done
and to pay the petitioner
for the damages sustained
by reason of the wrongful
acts of the respondent.
Mandamus is intended to
compel the performance of
the act desired;
Entity or person is alleged
to have:
• Neglected a ministerial
duty; or
• Excluded another from a
right or office.
Mandamus, to ministerial
Mandamus is available
against respondents who
exercise judicial and/or
non-judicial functions.
This remedy is affirmative
or positive (if the
performance of a duty is
ordered) or negative (if
desistance from excluding
another from a right or
office is ordered)

(b) REQUISITES, WHEN, AND WHERE TO FILE

Certiorari Prohibition Mandamus

Requisites (1) The petition is directed (1) The impugned act (1) There must be a clear
against a tribunal, board must be that of a legal Right to the act
or officer exercising tribunal, corporation, demanded;
judicial or quasi judicial board or person; (2) It must be the duty of
functions; the defendant to

375
 Certiorari Prohibition Mandamus
(2) Such tribunal, board or (2) The respondent must perform the act because
officer has acted without be exercising judicial, it is Mandated by law;
or in excess of jurisdiction quasi-judicial (3) The defendant must be
or with grave abuse of functions or exercising a
discretion; and ministerial functions; MINISTERIAL DUTY – a
(3) There is neither appeal (3) Respondents acted duty which is absolute
nor any plain, speedy and without or in excess and imperative and
adequate remedy in the of its jurisdiction or involves merely its
ordinary course of law for with grave abuse of execution;
the purpose of annulling discretion amounting (4) The defendant
or modifying the to lack of jurisdiction; unlawfully Neglects the
proceeding. There must and performance of the duty
be capricious, arbitrary (4) There must be no enjoined by law; and,
and whimsical exercise of appeal or other plain, (5) No Appeal or other plain,
power for it to prosper. speedy and adequate speedy and adequate
(Rule 65, Sec. 1) remedy. (Rule 65, remedy in the ordinary
Sec. 2) course of law (Rule 65,
Sec. 3)
When to The petition for certiorari, prohibitions or mandamus shall be filed before the proper
file court:
(1) Not later than 60 days from notice of the judgment, order or resolution; or
(2) In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later than 60 days counted
from the notice of the denial of the motion.

Period now inextendible. — last paragraph of Section 4:"No extension of time to file
the petition shall be granted except for compelling reasons and in no case exceeding
fifteen (15) days" has been deleted by A.M. No. 07-7-12- SC, effective December 27,
2007.

Hence, petitions for certiorari must be filed strictly within 60 days from notice of
judgment or from the order denying a motion for reconsideration.

If the Court intended to retain the authority of the proper courts to grant extensions
under Section 4 of Rule 65, the paragraph providing for such authority would have
been preserved. The removal of the said paragraph under the amendment by A.M. No.
07-7-12-SC of Sec. 4, Rule 65 simply meant that there can no longer be any extension
of the 60-day period within which to file a petition for certiorari (Laguna Metts
Corporation vs. Court of Appeals, G.R. No. 185220, July 27, 2009).

The general rule, as held in Laguna Metts Corporation, is that the filing of a petition for
certiorari is non-extendible. However, there are exceptions, as stated in Domdoni vs.
Sandiganbayan, Labao vs. Flores and Mid-Islands Power Generation vs. Court of
Appeals, which can be summarized under two main grounds: to serve substantial
justice or to protect strong public interest (Republic vs. St. Vincent de Paul Colleges,
Inc., G.R. No. 192908, August 22, 2012).
Rule 65, Sec. 4 of the Revised Rules of Court explicitly states that Certiorari should be
instituted within a period of60 days from notice of the judgment, order, or resolution
sought to be assailed. The 60-day period is inextendible to avoid any unreasonable

376
 Certiorari Prohibition Mandamus
delay that would violate the constitutional rights of parties to a speedy disposition of
their case.

Just like any rule, however, there are recognized exceptions to the strict observance of
the 60-day period for filing a petition for Certiorari, viz.:
(1) most persuasive and weighty reasons;
(2) to relieve a litigant from an injustice not commensurate with his failure to comply
with the prescribed procedure;
(3) good faith of the defaulting party by immediately paying within a reasonable time
from the time of the default;
(4) the existence of special or compelling circumstances;
(5) the merits of the case;
(6) a cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules;
(7) a lack of any showing that the review sought is merely frivolous and dilatory;
(8) the other party will not be unjustly prejudiced thereby;
(9) fraud, accident, mistake, or excusable negligence without appellant's fault;
(10) peculiar legal and equitable circumstances attendant to each case;
(11) in the name of substantial justice and fair play;
(12) importance of the issues involved; and
(13) exercise of sound discretion by the judge guided by all the attendant
circumstances.

There should be an effort, though, on the part of the party invoking liberality to
advance a reasonable or meritorious explanation for his/her failure to comply with the
rules. (Hon. Philip A. Aguinaldo, et al. vs. His Excellency President Benigno Simeon C.
Aquino III; et al., G.R. No. 224302, November 29, 2016)
Reason for the prohibition on the period of extension to file the petition

The reason for the amendment is essentially to prevent the use or abuse of the
petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice.
As the rule now stands, the 60-day period is inextendible in order to avoid any
unreasonable delay that would violate the constitutional rights of parties to a speedy
disposition of their case.

In this case, petitioner failed to show any compelling reason for the grant of an
extension. (BBB vs. Amy B. Cantina, G.R. No. 225410, June 17, 2020)
Where to The petition under this Rule shall be filed in the following court, as follows, to wit:
file (1) If the petition relates to an act or an omission of a municipal trial court or of a
corporation, a board, an officer or a person, it shall be filed with the Regional Trial
Court exercising jurisdiction over the territorial area as defined by Supreme Court;
(2) It may also be filed with the Court of Appeals or with the Sandiganbayan, whether
or not the same is in aid of the court's appellate jurisdiction;
(3) If the petition involves an act or an omission of a quasi-judicial agency, unless
otherwise provided by law or these rules, the petition shall be filed with and be
cognizable only by the Court of Appeals;
(4) In election cases involving an act or an omission of a municipal or a regional trial
court, the petition shall be filed exclusively with the Commission on Elections, in

377
 Certiorari Prohibition Mandamus
aid of its appellate jurisdiction. (As amended by A.M. No. 07-7-12-SC, December
27, 2007)

The Supreme Court, the Court of Appeals and the Regional Trial Courts exercise
concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction. However, such concurrence in jurisdiction
does not give petitioners unbridled freedom of choice of court forum (Rayos vs. City of
Manila, G.R. No. 196063, December 14, 2011).
(Tan, Civil Procedure: A Guide for the Bench and the Bar, Book III, 2022 Ed., pp. 532, 535-537; M. De
Leon, Remedial Law Reviewer-Primer, 2021, pp. 359, 379)

CERTIORARI An essential requisite for filing a petition

Essential Requisite for filing a Petition for
Certiorari
A petition for certiorari under Rule 65 of
the Rules of Court is a pleading limited to
correction of errors of jurisdiction or grave abuse
of discretion amounting to lack or excess of
jurisdiction. Its principal office is to keep the
inferior court within the parameters of its
jurisdiction or to prevent it from committing such
a grave abuse of discretion amounting to lack or
excess of jurisdiction. (Tan v. Spouses Antazo,
G.R. No. 187208, February 23, 2011)
In order to avail of the remedy of certiorari under
Rule 65, the following must concur:
(1) that the writ is directed against a tribunal, a
board or any officer exercising judicial or
quasi-judicial functions;
(2) that such tribunal, board or officer has acted
without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack
or excess of jurisdiction; and
(3) that there is no appeal or any plain, speedy
and adequate remedy in the ordinary course
of law. (Idul v. Alster Int'l. Shipping Services,
Inc., G.R. No. 209907, June 23, 2021, J.
Hernando)
for certiorari is the allegation that the judicial
tribunal acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. Grave
abuse of discretion has been defined as a
"capricious or whimsical exercise of judgment
that is patent and gross as to amount to an
evasion of positive duty or a virtual refusal to
perform a duty enjoined by law." In order to
determine whether the Court of Appeals erred in
dismissing the Petition for Certiorari for being the
wrong remedy, it is necessary to find out whether
the Regional Trial Court acted with grave abuse
of discretion as to warrant the filing of a petition
for certiorari against it. (Cruz v. People, G.R. No.
224974, July 3, 2017)
Certiorari under Rule 65 is a remedy narrow in
scope and inflexible in character. It is not a
general utility tool in the legal workshop. It offers
only a limited form of review. Its principal
function is to keep an inferior tribunal within its
jurisdiction. It can be invoked only for an error of
jurisdiction, that is, one where the act complained
of was issued by the court, officer or a quasi-
judicial body without or in excess of jurisdiction,
or with grave abuse of discretion which is
tantamount to lack or in excess of jurisdiction.
Excess of jurisdiction as distinguished from
absence of jurisdiction means that an act, though

378
within the general power of a tribunal, board or
officer is not authorized, and invalid with respect
to the particular proceeding, because the
conditions which alone authorize the exercise of
the general power in respect of it are wanting.
Without jurisdiction means lack or want of
legal power, right or authority to hear and
determine a cause or causes, considered either in
general or with reference to a particular matter.
It means lack of power to exercise authority.
Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction or, in other
words, where the power is exercised in an
arbitrary manner by reason of passion, prejudice,
or personal hostility, and it must be so patent or
gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.
Not every error in proceeding, or every erroneous
conclusion of law or fact, is abuse of discretion.
(Angara v. Fedman Development Corp., G.R. No.
156822 (Resolution), October 18, 2004)
Remedies to raise constitutional issue; Writ
of Certiorari and Prohibition
Petitions for certiorari and prohibition are
appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify,
when proper, acts of legislative and executive
officials. In fine, the certiorari petitions impute
on then President Ramos and the TRB, the
commission of acts that translate inter alia into
usurpation of the congressional authority to grant
franchises and violation of extant statutes. The
petitions make a prima facie case
for certiorari and prohibition; an actual case or
controversy ripe for judicial review exists. Verily,
when an act of a branch of government is
seriously alleged to have infringed
the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the
dispute. In doing so, the judiciary merely defends
the sanctity of its duties and powers under
the Constitution. (Francisco, Jr. v. Toll Regulatory
Board, G.R. Nos. 166910, 169917, 173630 &
183599, October 19, 2010)
Judgment of acquittal rendered by the
Sandiganbayan may be assailed via a
petition for certiorari
At the outset, Court recognizes that a judgment
of acquittal rendered by the Sandiganbayan may
be assailed via a petition for certiorari under Rule
65 of the Rules of Court on narrow grounds
established in jurisprudence.
The general rule is that a judgment of acquittal
rendered after trial on the merits shall be
immediately final and unappealable because
further prosecution will place the accused in
double jeopardy. However, the defense of double
jeopardy will not lie in a Rule 65 petition. Unlike
in an appeal, this remedy does not involve a
review of facts and law on the merits, an
examination of evidence and a determination of
its probative value, or an inquiry on the
correctness of the evaluation of the evidence.
Judicial review in certiorari proceedings shall be
confined to the question of whether the judgment
for acquittal is per se void on jurisdictional
grounds. The court will look into the decision's
validity — if it was rendered by a court without
jurisdiction or if the court acted with grave abuse
of discretion amounting to lack or excess of
jurisdiction — not on its legal correctness. The
abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or
virtual refusal to perform a duty imposed by law,
or to act in contemplation of law or where the
power is exercised in an arbitrary and despotic
379
manner by reason of passion and hostility. More or of the denial of be assailed and in
specifically, to prove that an acquittal is tainted petitioner's motion case a motion for
with grave abuse of discretion, the petitioner for reconsideration or reconsideration or
must show that the prosecution's right to due new trial new trial is timely
filed, whether such
process was violated or that the trial conducted
motion is required or
was a sham. (People v. Sandiganbayan, G.R. No. not, the 60-day
198119, September 27, 2017) period is counted
from notice of denial
Petition for Certiorari distinguished from of said motion
Appeal by Certiorari Extension of 30 days Extension no longer
may be granted for allowed
justifiable reasons
Certiorari as a Certiorari as a
Does not require a Motion for
Mode of Appeal Special Civil Action
prior motion for reconsideration is a
(Rule 45) (Rule 65)
reconsideration condition precedent,
Called petition for A special civil action subject to exceptions
review on certiorari, that is an original
Stays the judgment Does not stay the
is a mode of appeal, action and not a
appealed from judgment or order
which is but a mode of appeal, and
subject of the petition
continuation of the not a part of the
unless enjoined or
appellate process appellate process but
restrained
over the original an independent
Parties are the The tribunal, board,
case. action.
original parties with officer exercising
Seeks to review final May be directed
the appealing party judicial or quasi-
judgments or final against an
as the petitioner and judicial functions is
orders interlocutory order of
the ad- verse party as impleaded as
the court or where no
the respon- dent respondent
appeal or plain or
without impleading
speedy remedy
the lower court or
available in the
judge
ordinary course of
Filed only with the May be filed with the
law
Supreme Court Supreme Court, Court
Raises only questions Raises questions of
of Appeals,
of law jurisdiction because a
Sandiganbayan, or
tribunal, board or
Regional Trial Court
officer exercising
SC may deny the Court may dismiss
judicial or quasi-
petition motu propio the petition outright
judicial functions has
on the ground that on the ground that
acted without
the appeal is without the same is patently
jurisdiction or in
merit, or prosecuted without merit, or
excess of jurisdiction
mathfestly for delay, prosecuted manifestly
or with grave abuse
or that the questions for delay, or that the
of discretion
raised therein are too questions raised are
amounting to lack of
unsubstantial to too unsubstantial to
jurisdiction
require consideration require consideration
Filed within 15 days Filed not later than
(M. De Leon, Remedial Law Reviewer-Primer,
from notice of 60 days from notice
judgment or final of judgment, order or 2021, pp. 373-374)
order appealed from, resolution sought to

380
A Motion for Reconsideration is Required
Before Filing a Petition for Certiorari
General Rule: Certiorari under Rule 65 inherently
requires the filing of a motion for reconsideration
to enable the court or agency to rectify its
mistakes without the intervention of a higher
court.
Nevertheless, this rule admits certain exceptions,
such as:
(a) where the order is a patent nullity, as where
the court a quo has no jurisdiction;
(b) where the questions raised in
the certiorari proceedings have been duly
raised and passed upon by the lower court,
or are the same as those raised and passed
upon in the lower court;
(c) where there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
Government or of the petitioner or the
subject matter of the action is perishable;
(d) where, under the circumstances, a motion
for reconsideration would be useless;
(e) where petitioner was deprived of due
process and there is extreme urgency for
relief;
(f) where, in a criminal case, relief from an
order of arrest is urgent and the granting of
such relief by the trial court is improbable;
(g) where the proceedings in the lower court
are a nullity for lack of due process;
(h) where the proceeding were ex parte or in
which the petitioner had no opportunity to
object; and
(i) where the issue raised is one purely of law
or where public interest is involved. (Gacad,
Jr. v. Corpuz, G.R. No. 216107, August 3,
2022, J. Hernando citing Rapid Manpower
Consultants, Inc. v. De Guzman, G.R. No.
187418 (Resolution), September 28, 2015)
Rule 65 not a remedy for lost appeal
Section 1 of Rule 45 provides that when a party
desires to appeal by certiorari from a judgment,
final order or resolution of the CA, he or she may
file with the Supreme Court a verified
petition for review on certiorari which shall raise
only questions of law. Clearly, the assailed
September 12, 2008 and February 6, 2009
Resolutions of the appellate court may be
elevated to this Court via a petition for review
on certiorari under Rule 45 on pure questions of
law. However, as can be gleaned from the
records, the petitioner availed of a petition for
certiorari under Rule 65 instead. It is settled that
an extraordinary remedy of certiorari will not lie
if there is a plain, speedy, and adequate remedy
in the ordinary course of law, as in this case.
Petitioner should have availed of a petition for
review on certiorari under Rule 45 and not a
petition for certiorari under Rule 65 as its petition
was dismissed by the appellate court based on
Section 3 of Rule 117 which is an adjudication on
the merits and not merely an interlocutory order.
(Inter-Island Information Systems, Inc. v. Court
of Appeals, Eleventh Division, G.R. No. 187323,
June 23, 2021, J. Hernando)
Petitioners availed of the wrong
remedy. At the outset, it must be pointed out that
petitioners' resort to a Petition
for Certiorari under Rule 65 of the Rules of
Court is inappropriate. Petitioners' remedy from
the adverse Decision of the CA lies in Rule 45
which is a Petition for Review on Certiorari. As
such, this petition should have been dismissed
outright for being a wrong mode of appeal. Even
if the petition is to be treated as filed under Rule
45, the same must still be denied for late filing
and there being no reversible error on the part of
the CA. Records show that petitioners received a
copy of the CA Resolution denying their Motion
for Reconsideration on October 30, 2006. They
therefore had 15 days or until November 14, 2006
within which to file their Petition for Review
on Certiorari before this Court. However, they
filed their Petition for Certiorari on December 29,
2006, after the period to file a Petition for Review
381
on Certiorari under Rule 45 had expired. Hence,
this Petition for Certiorari under Rule 65 was
resorted to as a substitute for a lost appeal which
is not allowed. (Spouses Magtoto v. Court of
Appeals, G.R. No. 175792, November 21, 2012)
Certiorari is not and cannot be a substitute
for an appeal
Seemingly, a Petition for Certiorari under Rule 65
was filed to make up for the loss of petitioner's
right to an ordinary appeal. However, it is
elementary that the special civil action of
certiorari is not and cannot be a substitute for an
appeal, where the latter remedy is available.
While the Court has, in several cases, previously
granted a petition for certiorari despite the
availability of an appeal, it only applies (a) when
public welfare and the advancement of public
policy dictates; (b) when the broader interest of
justice so requires; (c) when the writs issued are
null and void; or (d) when the questioned order
amounts to an oppressive exercise of judicial
authority.
[S]ince the Court of Appeals had jurisdiction over
the petition under Rule 65, any alleged errors
committed by it in the exercise of its jurisdiction
would be errors of judgment which are
reviewable by timely appeal and not by a special
civil action of certiorari. If the aggrieved party
fails to do so within the reglementary period, and
the decision accordingly becomes final and
executory, he cannot avail himself of the writ of
certiorari, his predicament being the effect of his
deliberate inaction.
The appeal from a final disposition of the Court of
Appeals is a petition for review under Rule 45 and
not a special civil action under Rule 65 of the
Rules of Court, now Rule 45 and Rule 65,
respectively, of the 1997 Rules of Civil Procedure.
Rule 45 is clear that the decisions, final orders or
resolutions of the Court of Appeals in any c a s e
, i.e., regardless of the nature of the action or
proceeding involved, may be appealed to this
Court by filing a petition for review, which would
be but a continuation of the appellate process
over the original case. Under Rule 45 the
reglementary period to appeal is fifteen (15) days
from notice of judgment or denial of motion for
reconsideration.
[xxx xxx xxx]
For the writ of certiorari under Rule 65 of the
Rules of Court to issue, a petitioner must show
that he has no plain, speedy and adequate
remedy in the ordinary course of law against its
perceived grievance. A remedy is considered
"plain, speedy and adequate" if it will promptly
relieve the petitioner from the injurious effects of
the judgment and the acts of the lower court or
agency. In this case, appeal was not only
available but also a speedy and adequate
remedy. (Idul v. Alster Int'l. Shipping Services,
Inc., G.R. No. 209907, June 23, 2021, J.
Hernando)
Certiorari Not Available When Appeal is
Available
General Where an appeal is available,
Rule certiorari will not prosper even
if the ground therefor is grave
abuse of discretion. (Penson v.
Commission on Elections
Constituted as the National
Board of Canvassers for
Senators and Party-List
Representatives, G.R. No.
211636, September 28, 2021)
Exceptions Even when appeal is available
and is the proper remedy, SC
has allowed a writ of certiorari:
(1) Where the appeal does not
constitute a speedy and
adequate remedy;
382
 (2) Where the orders were Certiorari involving actions/omissions of
also issued either in excess MTC/RTC in election cases shall be filed
of or without jurisdiction; exclusively with COMELEC
(3) For certain special
considerations, as public
In election cases involving an act or an omission
welfare or public policy;
(4) Where, in criminal actions, of a municipal or a regional trial court,
the court rejects rebuttal the petition shall be filed exclusively with the
evidence for the Commission on Elections, in aid of its appellate
prosecution as, in case of jurisdiction. The question then is, would taking
acquittal, there could be cognizance of a petition for certiorari questioning
no remedy;
an interlocutory order of the regional trial court in
(5) Where the order is a
patent nullity; and an electoral protest case be considered in aid of
(6) Where the decision in the the appellate jurisdiction of the COMELEC? The
certiorari case will avoid Court finds in the affirmative. Interpreting the
future litigations. phrase "in aid of its appellate jurisdiction," the
Court held in J.M. Tuason & Co., Inc. v. Jaramillo,
Certiorari is NOT the Proper Remedy to et al. that if a case may be appealed to a
Appeal before the DAR. particular court or judicial tribunal or body, then
said court or judicial tribunal or body has
The CA correctly dismissed Buncio's Petition for jurisdiction to issue the extraordinary writ
Certiorari for being a wrong remedy. Clearly, of certiorari, in aid of its appellate jurisdiction.
Buncio had other plain, speedy, or adequate This was reiterated in De Jesus v. Court of
remedy before the DAR. Appeals, where the Court stated that a court may
Section 50-A of RA 6557, as amended by RA issue a writ of certiorari in aid of its appellate
9700, expressly provides that "if there is an jurisdiction if said court has jurisdiction to review,
allegation from any of the parties that the case is by appeal or writ of error, the final orders or
agrarian in nature and one of the parties is a decisions of the lower court. (Galang, Jr. v.
farmer, farmworker, or tenant, the case shall be Geronimo, G.R. No. 192793, February 22, 2011)
automatically referred by the judge or the
prosecutor to the DAR which shall determine and The Court has consistently held that a petition
certify within fifteen (15) days from referral for certiorari against actions of the COMELEC is
whether an agrarian dispute exists: Provided, that confined only to instances of grave abuse of
from the determination of the DAR, an aggrieved discretion amounting to patent and substantial
party shall have judicial recourse." Hence, the denial of due process, because the COMELEC is
proper recourse of Buncio upon the trial court's presumed to be most competent in matters
referral of the case to await the DARAB's falling within its domain.
resolution. Thereafter, Buncio can assail the As settled in jurisprudence, grave abuse of
determination of the DARAB by appeal to the CA. discretion is the arbitrary exercise of power due
Plainly, her immediate recourse to the CA via a to passion, prejudice or personal hostility; or the
Petition for Certiorari was improper and thus, whimsical, arbitrary, or capricious exercise of
correctly struck down by the appellate court. (Dy power that amounts to an evasion or refusal to
Buncio v. Ramos, G.R. No. 206120, March 23, perform a positive duty enjoined by law or to act
2022, J. Hernando) at all in contemplation of law. For an act to be

383
condemned as having been done with grave
abuse of discretion, such an abuse must be
patent and gross. (Risos-Vidal v. Commission on
Elections, G.R. No. 206666, January 21, 2015)
Certiorari is the Proper Remedy to Appeal a
Declaration of Presumptive Death
The seemingly settled doctrine that a petition
for certiorari is the proper mode of elevating
matters to the Court of Appeals in all
presumptive death cases, whether under Article
41 of the Family Code or under Articles 390 and
391 of the Civil Code. This generalization must be
clarified. Article 41 of the Family Code explicitly
states that the Rules on Summary Procedure
shall apply if the declaration for presumptive
death is sought for purposes of remarriage.
The Rules on Summary Procedure
prohibit the filing of a motion for reconsideration
to expedite the resolution of cases. Since the
decision will be final and executory, no motion for
reconsideration is needed. The Office of the
Solicitor General must file a petition for certiorari
under Rule 65 of the Rules of Court before the
Court of Appeals. (Tadeo-Matias v. Republic, G.R.
No. 230751, April 25, 2018)
Certiorari is the Proper Remedy to Small
Claim
Considering the final nature of a small claims case
decision under the above-stated rule, the remedy
of appeal is not allowed, and the prevailing party
may, thus, immediately move for its
execution. Nevertheless, the proscription on
appeals in small claims cases, similar to other
proceedings where appeal is not an available
remedy, does not preclude the aggrieved party
from filing a petition for certiorari under Rule 65
of the Rules of Court. (A.L. Ang Network, Inc. v.
Mondejar, G.R. No. 200804 (Resolution), January
22, 2014)
Certiorari is the Proper Remedy to
Ascertain NLRC decision
Decisions of the NLRC are reviewable by the CA
through Rule 65 of the Rules of Court. The CA is
tasked in the proceeding to ascertain if the NLRC
decision merits a reversal exclusively on the basis
of the presence of grave abuse of discretion
amounting to lack or excess of jurisdiction.
Hence, when a CA decision is brought before the
Court through a petition for review on certiorari
under Rule 45, the question of law that must be
tackled is whether the CA correctly found that the
NLRC acted or did not act with grave abuse of
discretion in rendering its challenged decision. 66
The Court does not reexamine conflicting
evidence, re-evaluate the credibility of witnesses,
or substitute its own judgment for that of the
tribunal in determining where the weight of
evidence lies or what evidence is credible.
On the other hand, if the factual findings of the
LA and the NLRC are conflicting, as in this case,
the reviewing court may delve into the records
and examine for itself the questioned findings.
Under this situation, such conflicting factual
findings are not binding on the Court, and we
retain the authority to pass on the evidence
presented and draw conclusions therefrom.
Within the parameters of the following: (a) when
it is necessary to prevent a substantial wrong or
to do substantial justice; (b) when the findings of
the NLRC contradict those of the LA; and (c)
when necessary to arrive at a just decision of the
case, the appellate court necessarily has to look
at the evidence and make its own factual
determination.
In cases filed before administrative or quasi-
judicial bodies like the NLRC, the required
quantum of proof is substantial evidence, or that
amount of relevant evidence that a reasonable
384
mind might accept as adequate to justify a Prohibition cannot enjoin acts that have
conclusion already been accomplished

We reiterate the rule in illegal dismissal cases that Prohibition is a preventive and not a corrective
while the employer bears the burden of proving remedy. Its objective is to obtain a judgment
that the termination was for a valid or authorized directing a defendant to desist from continuing
cause, the employee must first establish by with the commission ofan act perceived to be
substantial evidence serious embarrassments and illegal. It will not lie for acts already executed or
insults had been committed against his person, accomplished (Custodio v. Department of Public
honor and reputation on several occasions by a Works and Highways, G.R. No. 225373 (Notice),
company officer; serious flight safety concerns; February 16, 2022)
absence of employment contract with Alphaland
Corporation; absence of helicopter recurrent Accomplished Facts / Fait Accompli
training; unresolved issues on services already
rendered in favor of Alphaland Corporation as Writ of prohibition does not lie to enjoin an act
fixed wing pilot from May 2, 2011 to June 2012; already fait accompli (Anti-Trapo Movement of
and other related matters. the Philippines v. Land Transportation Office, G.R.
No. 231540, June 27, 2022)
The last paragraph of Esico's resignation letter
conveys his gratitude the fact of his dismissal General rule Exception
from service. (Esico v. Alphaland Corp., G.R. No. A petition for Even when an act is already
216716, November 17, 2021, J. Hernando) prohibition is fait accompli, SC has
intended to allowed a writ of prohibition;
prohibit or Where it would provide a
PROHIBITION
prevent future complete relief by not only
acts done preventing what remains to
Requisites for prohibition without be done but by undoing
authority or what has been done, such
For a party to be entitled to a writ of prohibition, jurisdiction, as terminating a preliminary
he must establish the following requisites: and is not investigation instead of filing
proper for acts a motion to quash. (Aurillo,
(a) it must be directed against a tribunal,
already Jr. v. Rabi, G.R. No. 120014,
corporation, board or person exercising
accomplished November 26, 2002)
functions, judicial or ministerial;
(b) the tribunal, corporation, board or person Writ of prohibition does not lie to enjoin an
has acted without or in excess of its act already fait accompli (Anti-Trapo
jurisdiction, or with grave Movement of the Philippines v. Land
abuse ofdiscretion; and Transportation Office, G.R. No. 231540, June 27,
(c) there is no appeal or any other plain, speedy, 2022)
and adequate remedy in the ordinary
course of law. (Belmonte v. Office of the MANDAMUS
Deputy Ombudsman for the Military and
Other Law Enforcement Offices, G.R. No. It must be stressed, that the extraordinary
197665, January 13, 2016) remedy of mandamus lies to compel the
performance of duties that are purely ministerial

385
in nature only. The peremptory writ of mandamus
would not be available if, in the first place, there
is no clear legal imposition of a duty upon the
office or officer sought to be compelled to act, or
if it is sought to control the performance of a
discretionary duty.
For mandamus to lie, the following requisites
must be present:
(a) the plaintiff has a clear legal right to the act
demanded;
(b) it must be the duty of the defendant to
perform the act, because it is mandated by
law;
(c) the defendant unlawfully neglects the
performance of the duty enjoined by law;
(d) the act to be performed is ministerial, not
discretionary; and
(e) there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course
of law (Tongonan Holdings and
Development Corp. v. Nuevo, G.R. No.
218973 (Notice), March 23, 2022)
Mandamus Proper When There is the
Existence of a Clear Legal Right
It is essential to the issuance of a writ of
mandamus that petitioner should have a clear
legal right to the thing demanded and it must
be the imperative duty of therespondent to
perform the act required. Mandamus never
issues in doubtful cases. While it may not be
necessary that the ministerial duty be absolutely
expressed, it must however, be clear. The writ
neither confers powers nor imposes duties.
It is simply a command to exercise a power
already possessed and to perform a duty already
imposed. (Padilla v. Congress of the Philippines,
G.R. Nos. 231671 & 231694, July 25, 2017)
The writ of mandamus can be awarded only
when the petitioners' legal right to the
performance of the particular act which is sought
to be compelled is clear and complete. Under
Rule 65 of the Rules of Court, a clear legal right
is a right which is indubitably granted by law or is
inferable as a matter of law. If the right is clear
and the case is meritorious, objections raising
merely technical questions will be disregarded.
But where the right sought to be enforced is in
substantial doubt or dispute, as in this
case, mandamus cannot issue. (Angeles v.
Secretary of Justice, G.R. No. 142549, March 9,
2010)
Mandamus not resorted to compel one to
perform a Discretionary Duty
General Rule: Mandamus applies only to compel
one to perform a ministerial duty.
Exception: Mandamus is available to compel the
performance of a discretionary act, when refused,
but not 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 (Jacinto Olan, et al. v. CA, et al., supra.;
Ongsuco v. Hon. Malones, G.R. No. 182065,
October 27, 2009).
Mandamus not be issued when
administrative remedies are available
General Rule: Mandamus will not be issued
when administrative remedies are available.
Exceptions:
(a) Party is in estoppels (Vda. de Tan vs.
Veterans Backpay Commission, GR. No.
L12944, March 30,1959); and
(b) Pure questions of law are raised (Madrigal
vs. Lecaroz, G.R. No. L-46218, October 23,
1990)
386
Distinguish Prohibition from Mandamus ofwhich is when the issue raised is a pure
question of law. (ibid., p. 541)
Prohibition Mandamus
To prevent an act by To compel an act Purpose of the requirement of filing of a
a respondent desired Motion for Reconsideration
May be directed May be directed
against entities against judicial and The filing of a motion for reconsideration before
exercising judicial or non-judicial entitie resort to certiorari will lie is intended to afford the
quasi-judicial, or
court an opportunity to correct any actual or
ministerial functions
fancied error attributed to it by way of re-
Extends to Extends only to
discretionary ministerial functions examination of the legal and factual aspects of
functions the case. (Ruiz v. delos Santos, G.R. No. 166386,
(M. De Leon, Remedial Law Reviewer-Primer, January 27, 2009)
2021, p. 376)
Exceptions on the filing of a motion for
(c) EXCEPTIONS TO FILING OF MOTION reconsideration
FOR RECONSIDERATION BEFORE Certiorari under Rule 65 inherently requires the
FILING PETITION filing of a motion for reconsideration to enable the
court or agency to rectify its mistakes without the
Rule on Filing of Motion for intervention of a higher court. Nevertheless, this
Reconsideration
rule admits certain exceptions, such as:
Plain adequate remedy before the filing of
the petition for certiorari, prohibition and (1) Where the order is a patent nullity, as
mandamus where the court a quo has no jurisdiction;
(2) Where the question raised in the
Rule 65 of the Rules of Civil Procedure provides certiorariproceeding have been duly raised
that a petition for certiorari may be filed when and passed upon by the lower court, or are
the same as those raised and passed upon
"there is no appeal nor any plain, speedy, and
in the lower court;
adequate remedy in the ordinary course of law." (3) Where there is an urgent necessity for the
The "plain" and "adequate remedy" referred to in resolution of the question and any further
Rule 65 is a motion for reconsideration of the delay would prejudice the interest of the
assailed decision. (Tan, Civil Procedure: A Guide government or the petitioner or the subject
for the Bench and the Bar, Book III, 2022 Ed., p. of the action is perishable;
(4) Where under the circumstances, a motion
540)
for reconsideration would be useless;
(5) Where petitioner was deprived of due
Nature of the filing of a Motion for process, and there is extreme urgency for
Reconsideration relief;
(6) Where, in a criminal case, relief from an
As a general rule, a motion for reconsideration order of arrest is urgent and the granting
must first be filed with the lower court before the of such relief by the trial court is
extraordinary remedy of certiorari is resorted to, improbable;
since a motion for reconsideration is considered a (7) Where the proceedings in the lower court
plain, speedy and adequate remedy in the are a nullity for lack of due process;
ordinary course of law. Nevertheless, this general
rule admits of well-established exceptions, one

387
 (8) Where the proceeding was ex parte or in Where the action is filed by a private person, he
which the petitioner had no opportunity to must prove that he is entitled to the controverte
object; and d position; otherwise, respondent has a right to
(9) Where the issue raised is one purely of law
the undisturbedpossession of the office. (Velasco
or where public interest is involved.
(Gacad, Jr. v. Corpuz, G.R. No. 216107, v. Belmonte, Jr., G.R. No. 211140, January 12,
August 3, 2022, J. Hernando citing Rapid 2016)
Manpower Consultants, Inc. v. De
Guzman, G.R. No. 187418 (Resolution), Distinguish mandamus from quo warranto
September 28, 2015)
Mandamus Quo warranto
E. QUO WARRANTO (RULE 66) Clarifies legal duties, Clarifies who has
not legal titles legal title to the
Quo warranto literally means “by what authority” office, or franchise
Respondent, without Respondent usurps
An action for the usurpation of a public office, claiming any right to the office
position or franchise may be commenced by a the office, excludes
verified petition brought in the name of the the petitioner
Republic of the Philippines against: (M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 376)
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office, Distinguish quo warranto from
position or franchise; impeachment
(b) A public officer who does or suffers an act
which, by the provision of law, constitutes a Quo warranto Impeachment
Quo warranto is a Impeachment is a
ground for the forfeiture of his office; or
procedural process constitutional process
(c) An association which acts as a corporation for removing a public for removing a public
within the Philippines without being legally officer. officer.
incorporated or without lawful authority so to act. Quo warranto can be Impeachment
(Rule 66, Sec.1). initiated by the initiated by the House
Solicitor General or of Representatives.
A quo warranto proceeding is the proper legal public prosecutor, or
by any person
remedy to determine the right or title to the
claiming to be
contested public office and to oust the holder entitled to the public
from its enjoyment. It is brought against the office or position
person who is alleged to have usurped, intruded usurped or unlawfully
into, or unlawfully held or exercised held or exercised by
the public office, and may be commenced another.
by the Solicitor General or a public prosecutor, Quo warranto is mpeachment is when
available when (a) a the impeachable
as the case may be, or by any person
person who usurps, officers committed
claiming to be entitled to the public office or intrudes into, culpable violation of
position usurped or unlawfully held or exercised or unlawfully holds or the Constitution, graft
by another. (Aguinaldo v. Aquino III, G.R. No. exercises a public and corruption,
224302, November 29, 2016) office, position, or betrayal of public
franchise; or (b) a

388
 public officer who trust and other high the right of the results of the
does an act which crimes. petitioner to hold the election;
constitutes a ground office or position
for the forfeiture of arose;
his office; or (c)an Petitioner is the Petitioner may be any
association which person entitled to the voter even if he is not
acts as a corporation office; entitled to the office;
within the Philippines The court has to When the tribunal
without being legally declare who the declares the
incorporated or person entitled to the candidate-elect as
without authority so office is if he is the ineligible, he will be
to act. (Sec. 1, Rule petitioner. unseated but the
66) person occupying the
Quo warranto shall Impeachment shall second place will not
be decided by the be decided by the be de- clared as the
Court. Senate. one duly elected
(Tan, Civil Procedure: A Guide for the Bench and because the law shall
the Bar, Book III, 2022 Ed., pp. 563-564) consid- er only the
person who, having
duly filed his
Distinction: Quo Warranto under the Rules
certificate of
of Court and Quo Warranto under the candidacy, received a
Omnibus Election Code plurality of votes.
(M. De Leon, Remedial Law Reviewer-Primer,
Quo Warranto Quo Warranto in 2021, pp. 380-381)
(Rule 66) Electoral
Proceedings Who May Commence Action for Quo
Subject of the Subject of the
Warranto:
petition is in relation petition is in relation
to an appointive to an elective office; (a) Solicitor General or
office; (b) Public prosecutor (Rule 66, Secs. 2 and 3).
The issue is the Grounds relied upon
legality of the are: (a) ineligibility to How is Action Commenced
occupancy of the the position; or (b) By filing a verified petition in the name of the
office by virtue ofa disloyalty to the Republic of the Philippines (Rule 66, Sec. 1).
legal appointment; Republic
Petition is brought May be instituted Against whom May be filed
either to the Supreme with the COMELEC by
Court, the Court of any voter contesting
Appeals or the the election of any An action for the usurpation of a public office,
Regional Trial Court; member of Congress, position or franchise may be commenced by a
regional, provincial or verified petition brought in the name of the
city officer; or to the Republic of the Philippines against:
MeTC, MTC or MCTC (a) A person who usurps, intrudes into, or
if against any unlawfully holds or exercises a public
barangay official; office, position or franchise;
Filed within one year Filed within 10 days (b) A public officer who does or suffers an act
from the time the after the which, by the provision of law, constitutes
cause of ouster, or proclamation of the a ground for forfeiture of his office; and,

389
 (c) An association which acts as a corporation The Solicitor General or a public prosecutor must
within the Philippines without being legally commence an action for quo warranto in the
incorporated or without lawful authority so following instances:
to act. (Rule 66, Sec. 1).
(a) When directed by the President_of the
Philippines;
Distinguish a quo warranto action (b) When upon complaint; or
commenced by a private individual from a (c) Otherwise, he has good reason to believe
quo warranto action commenced by the that any case specified in the preceding
Solicitor General or public prosecutor. section can be established by proof. (Rule
66, Sec. 2).
In the action In an action
commenced by the commenced by the (2) Rule in case the Solicitor General or
private individual Solicitor General or public prosecutor commences an
a public prosecutor action for quo warranto with the
it is necessary for the it is not necessary permission of the court (Discretionary
petitioner to prove that there be a Quo Warranto)
his right to the office person claiming to be
in dispute. If he fails entitled to the office The Solicitor General or a public prosecutor may,
to prove this, it is alleged to have been with the permission of the court in which the
unnecessary for the usurped. The duty of action is to be commenced:
court to pass upon the court is to pass (a) Bring such an action at the request and upon
the right of the upon the right of the the relation of another person;
respondent to the respondent only (b) In such case the officer bringing it may first
office require an indemnity for the expenses and
(Riguera, Primer-Reviewer on Remedial Law, costs of the action in an amount approved
2022 Ed., p. 950) by and to be deposited in the court by the
person at whose request and upon whose
The remedy of quo warranto is vested in the relation the same is brought. (Rule 66, Sec.
people, and not in any private individual or group,
3).
because disputes over title to public office are
Relator – a person at whose request and upon
viewed as a public question of governmental
whose relation the Solicitor General or public
legitimacy and not merely a private quarrel
prosecutor brings an action for quo warranto with
among rival claimants. The only time that an
the permission of the court under Sections 3 and
individual, in his own name, may bring an action
4 of Rule 66.
for quo warranto is when such individual has a
claim over the position in question. (Republic v.
When individual may commence an action
Sereno, G.R. No. 237428, May 11, 2018)
Section 5, Rule 66 of the Rules of Court explicitly
Classification of quo warranto proceeding
requires that individuals who commence quo
warranto proceedings in their own name, must
(1) Instances where the Solicitor General
establish their eligibility to the public office or
or public prosecutor must commence
an action for quo warranto position usurped or unlawfully held by the
(Compulsory Quo Warranto) respondent.

390
Lacking the requisite qualifications for the
controverted public office or position, the
petitioner in a quo warranto proceeding may not
raise the lack of qualification of the supposed
usurper. This requirement necessarily proceeds
from the ultimate relief that is granted to the
individual initiating the quo warranto proceeding
— which is ousting the incumbent and placing the
challenger to the controverted position. (Arroyo
v. Court of Appeals, G.R. No. 202860, April 10,
2019)
Duty of the person filing an action for quo
warranto for reinstatement to an office
The petitioner in a quo warranto proceeding who
seeks reinstatement to an office, on the ground
of usurpation or illegal deprivation, must prove
his clear right to the office for his suit to succeed;
otherwise, his petition must fail. (General v. Urro,
G.R. No. 191560, March 29, 2011)
Contents of Petition
When the action is against a person for usurping
a public office, position or franchise, the petition
shall:
(1) set forth the name of the person who claim
to be entitled thereto,
(2) an averment of his right to the same and
that the respondent is unlawfully in
possession thereof.
All persons who claim to be entitled to the public
office, position or franchise may be made parties,
and their respective rights to such public office,
position or franchise determined, in the same
action. (Rule 66, Sec. 6).
Period for pleadings and Proceedings May
be Reduced & Action Given Precedence
The court where the petition was filed in its
discretion may:
(1) Reduce the period provided by these Rules
for filing pleadings and for all other
proceedings in the action in order to secure
the most expeditious determination of the
matters involved therein consistent with the
rights of the parties.
(2) Such action may be given precedence over
any other civil matter pending in the
court. (Rule 66, Sec. 8).
Effect of Judgment in case there is a finding
of usurpation
When the respondent is found guilty of usurping
into, intruding into, or unlawfully holding or
exercising a public office, position or franchise,
the court will render the following judgment;
(1) A judgment that such respondent be ousted
and altogether excluded therefrom;
(2) That the petitioner or relator, as the case
may be, recover his costs; and
(3) 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).
Effect in case judgment is in favor of the
petitioner
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the
public office he may:
(1) After taking the oath of office and executing
any official bond required by law, take upon
himself the execution of the office, and
(2) May 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.
(Rule 66, Sec. 10).
Remedy in case of refusal to comply
If the respondent refuses or neglects to deliver
any book or paper pursuant to such demand, he
may be:
391
(1) punished for contempt as having disobeyed
a lawful order of the court; and
(2) the person adjudged entitled to the office
may also bring action against the respondent
to recover the damages sustained by such
person by reason of the usurpation. (Rule
66, Sec. 10).
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).
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).
Prescription does not lie against the
government in filing the action for quo
warranto
The SolGen's power to commence quo
warranto proceedings to be imprescriptible. In
such a case, therefore, the SolGen's exercise of
the power is practically subject to no restriction
other than the exercise of his/her sound
discretion. If, as the ponencia posits, this
unfettered power of the SolGen is allowed to be
exerted against impeachable officers, the
independence of these constitutional offices will
effectively be undermined (Republic v. Sereno,
G.R. No. 237428, May 11, 2018)
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)
Limitations
General A proceeding for the ouster of a
Rule public officer or employee must
be commenced 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)
Exception (a) 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).
(b) 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).
F. EXPROPRIATION (RULE 67)
SEE ALSO GUIDELINES FOR
EXPROPRIATION PROCEEDINGS OF
NATIONAL GOVERNMENT
INFRASTRUCTURE PROJECTS, SEC. 4,
RA 8974)
Eminent Domain is the right of the State to
acquire private property for public use upon the
payment of just compensation. (Riguera, Primer-
Reviewer on Remedial Law, 2022 Ed., p. 955)
The power of eminent domain is an inherent
competence of the state. It is essential to a
392
sovereign. Thus, the Constitution does not
explicitly define this power but subjects it to a
limitation: that it be exercised only for public use
and with payment of just compensation. Whether
the use is public or whether the compensation is
constitutionally just will be determined finally by
the courts. (National Power Corp. v. Posada, G.R.
No. 191945, [March 11, 2015)
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
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 955)
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).
Expropriation is an involuntary sale where the
landowner is practically an unwilling seller.
Provided all the requisites for its exercise are
present, a private individual cannot resist the
state's exercise of its inherent power of eminent
domain. Nevertheless, there is nothing that
precludes the government from entering into a
negotiated sale with a private landowner to
acquire a property to be devoted for a public
purpose. In fact, expropriation proceedings or
court intervention would be unnecessary should
a deed of sale be executed where the parties
come to an agreement as to the price of the
property to be sold. (Republic v. Jose Gamir-
Consuelo Diaz Heirs Association, Inc., G.R. No.
218732, November 12, 2018)
The expropriation of real property does not
include mere physical entry or occupation of land.
Although eminent domain usually
involves a taking of title, there may also be
compensable taking of only some, not all, of the
property interests in the bundle of rights that
constitute ownership. (Republic v. Spouses
Nocom, G.R. No. 233988, November 15, 2021)
Principle of Jus Regalia
Proceeding from the principle of jus regalia, the
right to eminent domain has always been
considered as a fundamental state power that is
inseparable from sovereignty. It is described as
the State's inherent power that need not be
granted even by the Constitution, and as the
government's right to appropriate, in the nature
of compulsory sale to the State, private property
for public use or purpose.
Expropriation, or the exercise of the State's right
to eminent domain, is proscribed by the restraints
of public use and just compensation. It is
governed by Rule 67 of the Rules of Court, which
presents procedural guidelines for the court to
ensure that due process is observed and just
compensation rightly paid to the private owners.
(Republic v. Samson-Tatad, G.R. No. 187677,
April 17, 2013)
Constitutional Provision on Expropriation
Sec. 9, Art. III of the 1987 Constitution provides
for the right of the State to exercise its right to
expropriate private property upon payment of
just compensation.
393
Who has the power to expropriate:
(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).
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
effect shall be made in the complaint (Sec. 1,
Rule 67).
Note: All persons who have lawful
interest in the property sought to be expropriated
should be impleaded in the complaint for
purposes of determining who shall be entitled
to just compensation. If a known owner is not
joined as defendant, he may intervene in the pr
oceeding. If the owner is joined but not served
with process and the proceeding is already
closed before he came to know of the
condemnation, he may maintain an independent
suit for damages. (Republic v. Mupas, G.R. Nos.
181892, 209917, 209696 & 209731, September
8, 2015)
Mandatory Requirement; Public Purpose
In esse, expropriation is forced private property
taking, the landowner being really without a
ghost of a chance to defeat the case of the
expropriating agency. In other words, in
expropriation, the private owner is deprived of
property against his will. Withal, the mandatory
requirement of due process ought to be strictly
followed, such that the state must show, at the
minimum, a genuine need, an exacting public
purpose to take private property, the purpose to
be specifically alleged or least reasonably
deducible from the complaint. (Vda de Ouano v.
Republic, G.R. Nos. 168770 & 168812, February
9, 2011)
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).
Modern Concept of Public Purpose
Public use, in common acceptation, means "use
by the public." However, the concept has
expanded to include utility, advantage or
productivity for the benefit of the public. In Asia's
Emerging Dragon Corporation v. Department of
Transportation and Communications, Justice
Corona, in his dissenting opinion said that: To be
valid, the taking must be for public use. The
meaning of the term "public use" has evolved
over time in response to changing public needs
394
and exigencies. Public use which was traditionally (Spouses Yusay v. Court of Appeals, G.R. No.
understood as strictly limited to actual "use by the 156684 (Resolution), April 6, 2011)
public" has already been abandoned. "Public use"
has now been held to be synonymous with "public Distinctions between an Expropriation
interest," "public benefit," and "public Proceeding (Rule 67) and an Escheat
convenience." (Asia's Emerging Dragon Corp. v. Proceeding (Rule 91)
Department of Transportation and
Communications, G.R. Nos. 169914 & 174166, Expropriation Escheat
April 18, 2008) Proceeding Proceeding
(Rule 67) (Rule 91)
It is essential that the element of public use of Expropriation Escheat is a special
proceeding is a proceeding governed
the property be maintained throughout the
special civil action by Rule 91;
proceedings for expropriation. The effects of governed by Rule 67;
abandoning the public purpose were explained in Expropriation An escheat
Mactan-Cebu International Airport Authority v. proceeding is fded for proceeding is
Lozada, Sr. (Mactan-Cebu International Airport the purpose of taking intended to revert
Authority v. Lozada, Sr., G.R. No. 176625, of property for public back the property of
February 25, 2010) use; the decedent leaving
no heir to succeed or
person by law
No Prohibition Against Expropriation entitled to it;
Proceedings In expropriation In escheat
proceeding there is a proceeding, it is not
There can be no prohibition against a procedure requirement of required;
whereby the immediate possession of the land payment of just
under expropriation proceedings may be taken, compensation;
Venue of In escheat
provided always that due provision is made to
expropriation is the proceeding the venue
secure the prompt adjudication and payment of Regional Trial Court lies with the Regional
just compensation to the owner. This bar against where the property to Trial Court where the
prohibition comes from the nature of the power be expropriated is deceased last resided
of eminent domain as necessitating the taking of located or where his estate
private land intended for public use, and the may be found if he is
interest of the affected landowner is thus made residing outside of
the Philippines.
subordinate to the power of the State. Once the
(Tan, Civil Procedure: A Guide for the Bench and
State decides to exercise its power of eminent
the Bar, Book III, 2022 Ed., pp. 591-592)
domain, the power of judicial review becomes
limited in scope, and the courts will be left to
Where to File Complaint
determine the appropriate amount of just
compensation to be paid to the affected
Complaint is filed in the RTC because the subject
landowners. Only when the landowners are not
of the suit — the State’s exercise of eminent
given their just compensation for the taking of
domain — is a matter incapable of pecuniary
their property or when there has been no
estimation (San Roque vs. Heirs of Pastor, G.R.
agreement on the amount of just compensation
No. 138896, June 20, 2000; Civil Procedure Vol.
may the remedy of prohibition become available.
II, p. 292).

395

Matters to Allege in Complaint for
Expropriation
The right of eminent domain shall be exercised by
the filing of a verified complaint, alleging;
(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:
(a) the owner does not agree to sell his
property; or,
(b) the owner is willing to sell but does not agree
with the price offered (Riano, Civil Procedure
Vol. II, 2016 Ed., p. 291).
Other Modes of Expropriation
By Local The power of eminent domain
Govern- is lodged in the legislative
ment Unit branch of government, which
may delegate the exercise
thereof to LGUs, other public
entities and public utilities. An
LGU may therefore exercise
the power to expropriate
private property only when
authorized by Congress and
subject to the latter's control
and restraints, imposed
"through the law conferring the
power or in other legislations."
In this case, Section 19 of RA
7160, which delegates to LGUs
the power of eminent domain,
also lays down the parameters
for its exercise. (Spouses
Yusay v. Court of Appeals, G.R.
No. 156684 (Resolution), April
6, 2011)
Under the The amount of "offer" which
Agrarian the DAR gives to the
Reform landowner as compensation for
Program his land, as mentioned in
Section 16 (b) and (c), is
based on the initial valuation
by the LBP. This then is the
amount which may be
accepted or rejected by the
landowner under the
procedure established in
Section 16. Perforce, such
initial valuation by the LBP also
becomes the basis of the
deposit of provisional
compensation pending final
determination of just
compensation, in accordance
with sub-paragraph (Land
Bank of the Phils. v. Heir of
Vda. de Arieta, G.R. No.
161834, August 11, 2010)
Under a case filed by a landowner for
Electric recovery of possession or
Power ejectment against a public
Industry utility corporation, endowed
Reform with the power of eminent
Act of domain, which has occupied
2001 (R.A. the land belonging to the
No. 9136) former in the interest of public
service without prior
acquisition of title thereto by
negotiated purchase or
expropriation proceedings, will
not prosper. Any action to
compel the public utility
corporation to vacate such
property is unavailing since the
landowner is denied the
remedies of ejectment and
injunction for reasons of public
policy and public necessity as
well as equitable estoppel. The
proper recourse is for the
ejectment court: (1) to dismiss
396
 the case without prejudice to
the landowner filing the proper
action for recovery of just
compensation and
consequential damages; or (2)
to dismiss the case and direct
the public utility corporation to
institute the proper
expropriation or condemnation
proceedings and to pay the
just compensation and
consequential damages
assessed therein; or (3) to
continue with the case as if it
were an expropriation case and
determine the just
compensation and
consequential damages
pursuant to Rule 67
(Expropriation) of the Rules of
Court, if the ejectment court
has jurisdiction over the value
of the subject land. (National
Transmission Corp. v. Bermuda
Development Corp., G.R. No.
214782, April 3, 2019)
For Expropriation proceedings for
Infrastruc- national infrastructure projects
ture are governed by Rule 67 of
Projects the Rules of
Under R.A. Court and Republic Act No.
No. 8974 8974. Expropriation, the
procedure by which the
government takes possession
of private property, is outlined
primarily in Rule 67 of
the Rules of Court. It
undergoes two phases. The
first phase determines the
propriety of the action. The
second phase determines the
compensation to be paid to the
landowner. (National Power
Corp. v. Posada, G.R. No.
191945, March 11, 2015)
(Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book III, 2022 Ed., pp. 593-596)
1. TWO STAGES IN EVERY ACTION
FOR EXPROPRIATION
First Stage: Second Stage:
Determination of the Determination by the
authority of the Court of “the just
plaintiff to exercise compensation for
the power of eminent property sought to be
domain and the taken” with
propriety of its assistance of not
exercise in the more than three (3)
context of the facts commissioners
involved in the suit. It
ends with an order, if
not of dismissal of
the action
(National Corporation vs. Posada, GR No. 191945,
March 11, 2015).
Requirements for the plaintiff to enter the
property subject of expropriation
Upon the filing of the complaint or at any time
thereafter and plaintiff shall have the right to take
or enter upon the possession of the real property
involved if he complies with the following
requisites:
(1) due notice to the defendant;
(2) deposits with the authorized government
depositary an amount equivalent to the
assessed value of the property for purposes
of taxation to be held by such bank subject
to the orders of the court;
(3) Such deposit shall be in money, unless in lieu
thereof the court authorizes the deposit of a
certificate of deposit of a government bank
of the Republic of the Philippines payable on
demand to the authorized government
depositary;
(4) If personal property is involved, its value
shall be provisionally ascertained and the
amount to be deposited shall be promptly
fixed by the court. (Rule 67, Sec. 2).
Requisites for immediate entry of the
plaintiff in the premises subject of
expropriation
397
The requisites for authorizing immediate entry demand to the authorized Projects and For
are the filing of a complaint for expropriation government depositary Other Purposes).
sufficient in form and substance, and the deposit (Rule 67, Sec. 2).
of the amount equivalent to fifteen percent
(15%) of the fair market value of the property to Requirement in case of expropriation for an
be expropriated based on its current tax infrastructure project of the government
declaration. Upon compliance with these
requirements, the petitioner in an expropriation Section 4 of Republic Act No. 8974,
case is entitled to a writ of possession as a matter unlike Rule 67, Section 2 of the Rules of Civil
of right and the issuance of the writ becomes Procedure, requires immediate payment to the
ministerial. Indubitably, since the complaint was landowner of 100% of the value of the property
found to have been sufficient in form and based on the current relevant zonal valuation of
substance and the required deposit had been duly the Bureau of Internal Revenue. It is the Bureau
complied with, the issuance of the writ had aptly of Internal Revenue, not the court, which
become ministerial on the part of the RTC. It determines the zonal value.
cannot be said, therefore, that the RTC
committed grave abuse of discretion when it The law also requires the immediate payment of
found the taking of the properties of Topanga and the value of the improvements and/or structures
Pathfinder proper. (Municipality of Cordova v. on the land before the trial court can issue the
Pathfinder Development Corp., G.R. No. 205544, Writ of Possession.
June 29, 2016)
Thus, the trial court committed two errors. First,
When Plaintiff Can Immediately Enter Into it based the value of the improvements on the
Possession of the Real Property property on the determination made by the
commissioners, and not on the determination
General Rule Exception made by the National Power Corporation,
Expropriator shall have If the subject contrary to the requirements of Section 7
the right to take or enter matter involves of Republic Act No. 8974. The second error of the
upon the possession of the acquisition of trial court occurred when it issued a Writ of
the real property involved right-of-way, site Possession on the basis of the National Power
if he deposits with the or location for Corporation's deposit of the alleged provisional
authorized government any national
value with Land Bank of the Philippines, not on its
depositary an amount government
equivalent to the infrastructure actual payment to respondents. Even if the
assessed value of the project through deposit of P580,769.93 was the correct
property for purposes of expropriation provisional value, it cannot be considered as
taxation to be held by pursuant to Sec. compliance with Section 4 of Republic Act No.
such bank subject to the 4 (a) of RA 8974 8974. (National Power Corp. v. Posada, G.R. No.
orders of the court. (An Act to 191945, March 11, 2015)
Facilitate the
Deposit shall be in Acquisition of
money, unless the court Right-of-Way, Rules on the Defenses and Objection
authorizes the deposit of Site or Location
a certificate of deposit of for National If a defendant (1) file and serve a notice of
a government bank of the Government has no objection appearance and a
Philippines payable on Infrastructure or defense to manifestation to that

398
 the action or the effect, specifically
taking of his designating or
property, he identifying the property
may: in which he claims to be
interested, within the
time stated in the
summons.
(2) Thereafter, he shall be
entitled to notice of all
proceedings affecting
the same
If a defendant (1) serve his answer within
has any the time stated in the
objection to the summons. The answer
filing of or the shall specifically
allegations in designate or identify
the complaint, the property in which
or any objection he claims to have an
or defense to interest, state the
the taking of his nature and extent of
property, he the interest claimed,
shall: and
(2) adduce all his
objections and
defenses to the taking
of his property.
In case of (1) A defendant waives all
failure of the defenses and
defendant raise objections not so
his objection or alleged;
defenses: (2) the court, in the
interest of justice, may
permit amendments to
the answer to be made
not later than ten (10)
days from the filing
thereof.
(Rule 67, Sec. 3).
Note: No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the
answer or any subsequent pleading. (ibid.)
Remedy of the defendant on the issue of
Just Compensation
At the trial of the issue of just compensation
whether or not a defendant has previously
appeared or answered, he may present evidence
as to the amount of the compensation to be paid
for his property, and he may share in the
distribution of the award. (ibid.)
2. ORDER OF EXPROPRIATION
An order declaring that the plaintiff has lawful
right to take the property for public use upon
payment of just compensation
When court may issue an Order of
Expropriation
(a) If the objections to and the defenses against
the right of the plaintiff to expropriate the
property are overruled, or
(b) When no party appears to defend as
required against expropriation (Rule 67, Sec.
4[1]).
The court may issue an order of expropriation
declaring that the plaintiff has a lawful right to
take the property sought to be expropriated, for
the public use or purpose described in the
complaint, upon the payment of just
compensation to be determined as of the date of
the taking of the property or the filing of the
complaint, whichever came first. (ibid.)
Remedy of the defendant in case of
issuance of final order of expropriation
A final order sustaining the right to expropriate
the property may be appealed by any party
aggrieved thereby. (Rule 67, Sec. 4[2]).
Orders or judgment which can be appealed
from final order of expropriation
The orders or judgment which can be appealed in
expropriation proceedings shall be as follows:
(a) A final order sustaining the right to
expropriate the property;
399
(b) Order of determination of just
compensation;
(c) Judgment in expropriation proceeding (Tan,
Civil Procedure: A Guide for the Bench and
the Bar, Book III, 2022 Ed., p. 604)
Effect of the filing of an appeal from the
final order of expropriation
Section 4 of Rule 67 further states that a final
order sustaining the right to expropriate the
property, such as the assailed Order of
Expropriation, may be appealed by any party
aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the
just compensation to be paid. It is clear from
the foregoing that the proper remedy of a
defendant in an expropriation case who wishes to
contest an order of expropriation is not to file
a certiorari petition and allege that the RTC
committed grave abuse of discretion in issuing
the order of expropriation. The remedy is to file
an appeal of the order of expropriation. (PNOC
Alternative Fuels Corp. v. National Grid
Corporation of the Philippines, G.R. No. 224936,
September 4, 2019)
3. ASCERTAINMENT OF JUST
COMPENSATION
Upon the rendition of the order of expropriation,
the court shall:
(1) appoint not more than three (3) competent
and disinterested persons as commissioners
to ascertain and report to the court the just
compensation for the property sought to be
taken; (Rule 67, Sec. 5[1]).
(2) The order of appointment shall designate the
time and place of the first session of the
hearing to be held by the commissioners and
specify the time within which their report
shall be submitted to the court; (Rule 67,
Sec. 5[1]).
(3) Copies of the order shall be served on the
parties. (Rule 67, Sec. 5[2]).
Note: Hearing is mandatory.
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,
Civil Procedure Vol. II, 2016 Ed., p. 301).
The parties must be given:
(a) notice of the hearings and the opportunity to
attend them;
(b) opportunity to introduce evidence in their
favor during the said hearings; and,
(c) opportunity for the parties to argue their
respective causes
Rule on Appointment of Commissioner
In expropriation cases, the appointment of
commissioners for the determination of just
compensation for the property sought to be taken
is a mandatory requirement. In an expropriation
case such as this one where the principal issue is
the determination of just compensation, a trial
before the Commissioners is indispensable to
allow the parties to present evidence on the issue
of just compensation. Contrary to the submission
400
of private respondents, the appointment of at
least three (3) competent persons as
commissioners to ascertain just compensation for
the property sought to be taken is a mandatory
requirement in expropriation cases. (Republic v.
Ropa Development Corp., G.R. No. 227614,
January 11, 2021)
Objections to the appointment of any of the
commissioners shall be filed with the court within
ten (10) days from service, and shall be resolved
within thirty (30) days after all the commissioners
shall have received copies of the objection. (Rule
67, Sec. 5[2]).
The commissioner to be appointed is specifically
required to be disinterested. As defined, such
person must be free from bias, prejudice or
partiality. (Hernandez v. Hernandez, G.R. No.
158576, March 9, 2011)
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).
Rules on Just Compensation
Just Compensation
The Court has defined just compensation in this
wise: Constitutionally, “just compensation” is
the sum equivalent to the market value of the
property, broadly described as 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 the
one who receives and the one whodesires to
sell, it being fixed at the time of the actual taking
by the government. Just compensation is define
d as the full and fair equivalent of the property
taken from its owner by the expropriator. It has
been been repeatedly stressed this Court that the
true measure is not the taker’s gain but the
owner’s loss. The word “just” is used to modify
the meaning of the word “compensation”
to convey the idea that the equivalent to be
given for the property to be taken shall be real,
substantial, full and ample. (Republic v. Heirs of
Spouses Dela Cruz, G.R. No. 245988, June 16,
2021 citing Land Bank of the Phils. v. Chico, G.R.
No. 168453, March 13, 2009)
Just compensation is the market value of the
property plus consequential damages to the
property not taken less the consequential benefits
to be derived by the owner from the public use or
purpose of the property taken. The consequential
benefits assessed shall in no case exceed the
consequential damages assessed. This is to avoid
the property owner being deprived of the actual
value of his property. The following equation is
illustrative:
FMV + (CD-CB) = JC
Where:
• FMV is the fair market value
• (CD-CB) is consequential damages to the
property not taken less the consequential
benefits to be derived by the owner from the
public use or purpose of the property taken,
the operation of its franchise by the
corporation, or the carrying of the business of
the corporation or person taking the property.
Note: Market value is not limited to the assessed
value of the property or to the schedule of market
values determined by the provincial or city
appraisal committee. However, these values may
serve as factors to be considered in the judicial
valuation of the property. (Rebadulla v. Republic,
G.R. Nos. 222159 & 222171, January 31, 2018)
401
Determination of Just Compensation; A
Judicial Function
The determination of "just compensation" in
eminent domain cases is a judicial function. The
executive department or the legislature may
make the initial determinations but when a party
claims a violation of the guarantee in the Bill of
Rights that private property may not be taken for
public use without just compensation, no statute,
decree, or executive order can mandate that its
own determination shall prevail over the court's
findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed
compensation. (Export Processing Zone Authority
v. Dulay, G.R. No. L-59603, April 29, 1987)
The determination of just compensation is a
judicial function which cannot be curtailed or
limited by legislation, much less by an
administrative rule. Section 57 of R.A. No. 6657
vests the Special Agrarian Courts the "original and
exclusive jurisdiction over all petitions for the
determination of just compensation to
landowners." While Section 17 of R.A. No. 6657
requires the due consideration of the formula
prescribed by the DAR, the determination of just
compensation is still subject to the final decision
of the proper court. (Land Bank of the Philippines
v. Del Moral, Inc., G.R. No. 187307, October 14,
2020, J. Hernando)
Since the determination of just compensation is a
judicial function, the Court must abandon its
ruling in Veterans Bank, Martinez and Soriano
that a petition for determination of just
compensation before the SAC shall be proscribed
and adjudged dismissible if not filed within the
15-day period prescribed under the DARAB Rules.
To maintain the rulings would be incompatible
and inconsistent with the legislative intent to vest
the original and exclusive jurisdiction in the
determination of just compensation with the SAC.
Indeed, such rulings judicially reduced the SAC to
merely an appellate court to review the
administrative decisions of the DAR. This was
never the intention of the Congress.
As earlier cited, in Section 57 of R.A. No. 6657,
Congress expressly granted the RTC, acting as
SAC, the original and exclusive jurisdiction over
all petitions for the determination of just
compensation to landowners. Only the legislature
can recall that power. The DAR has no authority
to qualify or undo that. The Court's
pronouncement in Veterans Bank, Martinez,
Soriano, and Limkaichong, reconciling the power
of the DAR and the SAC essentially barring any
petition to the SAC for having been filed beyond
the 15-day period provided in Section 11, Rule
XIII of the DARAB Rules of Procedure, cannot be
sustained. The DAR regulation simply has no
statutory basis. (Land Bank of the Philippines v.
Escaro, G.R. No. 204526, February 10, 2021, J.
Hernando)
The method of ascertaining just compensation
under provisions of P.D. NOS. 76, 464, 794
AND 1533 constitutes impermissible
encroachment on judicial prerogatives. It tends to
render this Court initial in a matter which under
the Constitution is reserved to it for final
determination. Thus, although in an expropriation
proceeding the court technically would still have
the power to determine the just compensation for
the property, following the applicable decrees, its
task would be relegated to simply stating the
lower value of the property as declared either by
the owner or the assessor. As a necessary
consequence, it would be useless for the court to
appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy the
due process clause in the taking of private
property is seemingly fulfilled since it cannot be
said that a judicial proceeding was not had before
402
the actual taking. However, the strict application
of the decrees during the proceedings would be
nothing short of a mere formality or charade as
the court has only to choose between the
valuation of the owner and that of the assessor,
and its choice is always limited to the lower of the
two. The court cannot exercise its discretion or
independence in determining what is just or fair.
Even a grade school pupil could substitute for the
judge insofar as the determination of
constitutional just compensation is concerned.
(Export Processing Zone Authority v. Dulay, G.R.
No. L-59603, April 29, 1987)
Reckoning Period in Ascertaining Payment
of Just Compensation
Just compensation is based on the fair market
value of the property at the time of the taking.
In ascertaining just compensation, the fair
market value of the expropriated property is
determined as of the time of taking. (Land Bank
of the Philippines v. Garcia, G.R. No. 208865,
September 28, 2020)
The “time of taking" refers to that time when the
State deprived the landowner of the use and
benefit of his property, as when the State
acquires title to the property or as of the filing of
the complaint, per Section 4, Rule 67 of the Rules
of Court. (Land Bank of the Phils. v. Yatco
Agricultural Enterprises, G.R. No. 172551,
January 15, 2014)
However, with the foregoing recent
pronouncements, it is settled that when
payment of just compensation is not effected
immediately after the taking of the property,
then just compensation must be computed
on the basis of the market value of the
landholding prevailing at the time of payment.
(Land Bank of the Philippines v. Del Moral, Inc.,
G.R. No. 187307, October 14, 2020, J.
Hernando)
Furthermore, It is settled that the requirement of
just compensation is not satisfied by the mere
deposit with any accessible bank of the
provisional compensation determined by the LBP
or the DAR, and its subsequent release to the
landowner after compliance with the legal
requirements set forth by RA 6657. What is
material is the fact that the landowner remains
unpaid notwithstanding the taking of the
property. (Philippine Veterans Bank v. Bases
Conversion and Development Authority, G.R. No.
217492, October 4, 2021, J. Hernando)
Factors Considered in Valuation of
Properties for Expropriation
Various factors can come into play in the
valuation of specific properties singled out for
expropriation. The values given by provincial
assessors are usually uniform for very wide areas
covering several barrios or even an entire town
with the exception of the poblacion. Individual
differences are never taken into account. The
value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or
other crops. Very often land described as
"cogonal" has been cultivated for generations.
Buildings are described in terms of only two or
three classes of building materials and estimates
of areas are more often inaccurate than correct.
Tax values can serve as guides but cannot be
absolute substitutes for just compensation.
(Export Processing Zone Authority v. Dulay, G.R.
No. L-59603, April 29, 1987)
Preliminary Deposit
Preliminary Deposit is an advance payment for
just compensation (Visayan Refining Co. vs.
Camus, G.R. no. No. 15870, December 03, 1919).
403
Purpose of Preliminary Deposit Lastly, RA 8974 requires the Government to
Provide for damages in case the court finds that pay just compensation twice:
plaintiff has no right to expropriate (Rule 67, Sec. immediately upon the filing of the complaint,
2). when the amount to be paid is 100% of the
value of the property based on the current
Effect of Non-Payment of Just relevant zonal valuation of the BIR, and the
Compensation value of the improvements and/or structures
sought to be expropriated (initial payment); and
General Rule Exception when the decision of the court in
Non-payment of just Private owners have the determination of just compensation becomes
compensation does the right to recover final and executory, in which case the
not automatically possession of implementing agency shall pay the owner the
entitle the private property if the State
difference between the amount already paid and
owner to recover fails to pay within 5
possession of the years from finality of the just compensation as determined by the
expropriated judgment court (final payment). (Republic v. Heirs of Tulao,
property. G.R. No. 230995 (Notice), March 23, 2022)
(Riano, Civil Procedure Vol. II, 2016 Ed., p. 305).
New System of Immediate Payment of
Determination of Just Compensation Initial Just Compensation
include Payment of Interest
Upon the filing of the complaint or at any time
Just compensation should be immediately made thereafter, and after due notice to the defendant,
available to the property owner so that he may the implementing agency shall immediately
derive income from this compensation, in the deposit to the court in favor of the owner the
same manner that he would have derived income amount equivalent to the sum of:
from his expropriated property. (1) One hundred percent (100%) of the value
of the land based on the current relevant zonal
However, if full compensation is not paid for the valuation of the Bureau of Internal Revenue
property taken, then the State must pay for the (BIR) issued not more than three (3) years
shortfall in the earning potential immediately lost prior to the filing of the expropriation
due to the taking, and the absence of complaint subject to subparagraph (c) of this
replacement property from which income can be section;
derived. Interest on the unpaid compensation (2) The replacement cost at current market
becomes due as compliance with the value of the improvements and structures as
constitutional mandate on eminent domain and determined by:
as a basic measure of fairness. (i) The implementing agency;
(ii) A government financial institution with
Thus, interest in eminent domain cases "runs as adequate experience in property appraisal;
a matter of law and follows as a matter of course and
from the right of the landowner to be placed in as (iii) An independent property appraiser
good a position as money can accomplish, accredited by the BSP.
as of the date of taking." (3) The current market value of crops and
trees located within the property as

404
 determined by a government financial
institution or an independent property
appraiser to be selected as indicated in
subparagraph (a) of Section 5 hereof.
Upon compliance with the guidelines
abovementioned, the court shall immediately
issue to the implementing agency an order to
take possession of the property and start the
implementation of the project. (R.A. No. 8974,
Sec. 6).
Requisites for New System of Immediate
Payment of Initial Just Compensation
(1) A complaint is filed;
(2) Purpose is the acquisition of right-of-way,
site or location for any national government
infrastructure project through expropriation;
(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).
RA No. 8974 supersedes the system of
deposit under Rule 67
R.A. No. 8974, which provides for a procedure
eminently more favorable to the property owner
than Rule 67, inescapably applies in instances
when the national government expropriates
property “for national government infrastructure
projects.” Thus, if expropriation is engaged in by
the national government for purposes other than
national infrastructure projects, the assessed
value standard and the deposit mode prescribed
in Rule 67 continues to apply. The intent of R.A.
No. 8974 to supersede the system of deposit
under Rule 67 with the scheme of “immediate
payment” in cases involving national government
infrastructure projects is indeed very clear
(Republic vs. Gingoyon, G.R. No. 166429,
December 19, 2005).
Proceedings before the commissioners
(1) The commissioners have the power to
receive evidence and are authorized to
administer oaths on hearings before them.
(2) The commissioners, after due notice to the
parties to attend, may view and examine the
subject property and its surroundings, and
may measure the same.
(3) The commissioners shall assess the
consequential damages to the property not
taken and deduct therefrom the
consequential benefits to be derived by the
owner from the public use or purpose of the
property taken. But in no case shall the
consequential benefits assessed exceed the
consequential damages assessed. (Rule 67,
Sec. 6).
(4) 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.
(5) Upon the filing of the commissioners' report,
the clerk of court shall serve copies on all
interested parties, with notice that they are
allowed 10 days within which to file
objections to the findings of the report. (Rule
67, Sec. 7). (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., pp. 969-970)
Actions that the court may take upon the
commissioners' report
The court may, after hearing:
(1) Accept the report and render judgment in
accordance therewith;
(2) Recommit the report to the commissioners
for further report of facts;
405
(3) Set aside the report and appoint new
commissioners; or
(4) Accept the report in part and reject it in part.
The court may make such order or render such
judgment as shall secure to the plaintiff the
property essential to the exercise of his right of
expropriation, and to the defendant just
compensation for the property so taken. (Rule 67,
Sec. 8; Riguera, Primer-Reviewer on Remedial
Law, 2022 Ed., pp. 970-971)
Duty of the Court in case uncertain
ownership or if conflicting claims are
involved
If the ownership of the property taken is
uncertain, or there are conflicting claims to any
part thereof, the court may:
(1) order any sum or sums awarded as
compensation for the property to be paid to
the court for the benefit of the person
adjudged in the same proceeding to be
entitled thereto.
(2) But the judgment shall require the payment
of the sum or sums awarded to either the
defendant or the court before the plaintiff
can enter upon the property, or retain it for
the public use or purpose if entry has already
been made. (Rule 67, Sec. 9)
4. RIGHTS OF PLAINTIFF UPON
JUDGMENT AND PAYMENT
Upon payment by the plaintiff to the defendant of
the compensation fixed by the judgment, with
legal interest thereon from the taking of the
possession of the property, or after tender to him
of the amount so fixed and payment of the costs,
the plaintiff shall have the rights:
(1) to enter upon the property expropriated and
to appropriate it for the public use or
purpose defined in the judgment; or
(2) to retain it should he have taken immediate
possession thereof under the provisions of
section 2 hereof.
(3) 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)
Effect of an appeal from the judgment of
the court
In case of appeal from the judgment of the court,
it shall have the following effects:
(1) The right of the plaintiff to enter upon the
property of the defendant and appropriate
the same for public use or purpose shall not
be delayed by an appeal from the judgment.
(2) But if the appellate court determines that
plaintiff has no right of expropriation,
judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the
restoration to the defendant of the
possession of the property, and to determine
the damages which the defendant sustained
and may recover by reason of the possession
taken by the plaintiff. (Rule 67, Sec. 11)
Rule on the payment of costs of the
proceedings
(1) The fees of the commissioners shall be taxed
as a part of the costs of the proceedings.
(2) All costs, except those of rival claimants
litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the
owner of the property and the judgment is
affirmed, in which event the costs of the
appeal shall be paid by the owner.
406
Note: Landbank of the Philippines is exempt from
paying the costs of the suit pursuant to Section
1, Rule 142 of the Rules, since it is an
instrumentality performing a governmental
function in agrarian reform proceedings charged
with the disbursement of public funds. (Land
Bank of the Philippines v. Heirs of Sanchez, G.R.
No. 214902, January 22, 2020)
Landbank of the Philippines is performing a
governmental function in an agrarian reform
proceeding, it is exempt from payment of costs
of suit, including commissioners' fees, as it is
considered part of costs of suit. (Land Bank of
the Philippines v. Del Prado Ledesma, Inc., G.R.
No. 229079 (Notice), June 30, 2021)
Contents of Judgment
The judgment entered in expropriation
proceedings shall state definitely, by an adequate
description:
(1) the particular property or interest therein
expropriated; and,
(2) the nature of the public use or purpose for
which it is expropriated. (Rule 67, Sec. 13)
Effect of Recording of Judgment
A certified copy of the judgment shall be recorded
in the Registry of Deeds of the place in which the
property is situated. Such recording vests in the
plaintiff the title to the real estate so described
for such public use or purpose (Rule 67, Sec. 13).
Effect of Appeal
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. (ibid)
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. (ibid)
Effect of Reversal of the Order of
Expropriation
The owner shall repossess the property with the
right to be indemnified for all damages sustained
due to the taking. (ibid)
Power of the guardian in an expropriation
proceedings
The guardian or guardian ad litem of a minor or
of a person judicially declared to be incompetent
may, with the approval of the court first had, do
and perform on behalf of his ward any act,
matter, or thing respecting the expropriation for
public use or purpose of property belonging to
such minor or person judicially declared to be
incompetent, which such minor or person
judicially declared to be incompetent could do in
such proceedings if he were of age or competent.
(Rule 67, Sec. 14).
Effect of Abandonment of Expropriation
Proceedings
The answer to that question depends upon the
character of the title acquired by the expropriator,
whether it be the State, a province, a
municipality, or a corporation which has the right
to acquire property under the power of eminent
domain.
(1) If, for example, land is expropriated for a
particular purpose, with the condition that
when that purpose is ended or abandoned
the property shall return to its former owner,
then, of course, when the purpose is
terminated or abandoned the former owner
reacquires the property so expropriated.
(2) If, for example, land is expropriated for a
public street and the expropriation is granted
407
 upon condition that the city can only use it
for a public street, then, of course, when the
city abandons its use as a public street, it
returns to the former owner, unless there is
some statutory provision to the contrary. . .
(3) If upon the contrary, however, the decree of
expropriation gives to the entity a fee simple
title, then of course, the land becomes the
absolute property of the expropriator,
whether it be the State, a province, or
municipality, and in that case the non-user
does not have the effect of defeating the title
acquired by the expropriation proceedings.
(Air Transportation Office v. Gopuco, Jr.,
G.R. No. 158563, June 30, 2005, citing Fery
v. Municipality of Cabanatuan, G.R. No.
17540, July 23, 1921)
When land has been acquired for public use in
fee simple, unconditionally, either by the
exercise of eminent domain or by purchase, the
former owner retains no rights in the land, and
the public use may be abandoned or the land
may be devoted to a different use, without any
impairment of the estate or title acquired, or any
reversion to the former owner. (Air
Transportation Office v. Gopuco, Jr., G.R. No.
158563, June 30, 2005, citing Fort Wayne vs.
Lake Shore, etc. Ry. Co., 132 Ind., 558; 18
L.R.A., 367.)
G. FORECLOSURE OF REAL ESTATE
MORTGAGE (RULE 68)
Real estate mortgage
A real estate mortgage is an accessory contract
constituted by the owner of a real property
whereby he allows a lien to be constituted
thereon for the purpose of securing in favor of
the creditor the fulfillment of a principal
obligation. (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., p. 975)
Foreclosure of real estate mortgage
The proceeding whereby the property subject of
the real estate mortgage is sold at public auction
for the payment of the principal obligation in
favor of the mortgagee. (Article 2087, Civil Code).
It is called foreclosure because the purpose of the
action is to foreclose or divest the rights in the
property of the mortgagor and junior lienholders
and to vest their rights in the purchaser. (Rule 68,
Sec. 3; Riguera, Primer-Reviewer on Remedial
Law, 2022 Ed., p. 975)
Foreclosure is the process by which a mortgagee
acquires an absolute title to the property of which
he had previously been only the conditional
owner, or upon which he had previously a mere
lien or encumbrance. (Benedicto v. Yulo, G.R. No.
8106, November 26, 1913)
The action for foreclosure of real estate mortgage
is an action quasi in rem since it is not only
directed against a particular person, but it
constitutes lien on the property of the defendant;
and it is real action since it involves an interest
over a real property. (Tan, Civil Procedure: A
Guide For the Bench and the Bar, Book III, 2022
Ed., p. 646)
Remedies of the mortgagee in case of
default of the mortgagor
The remedies available to mortgagee in case of
default of the mortgagor in his obligation are as
follows, to wit:
(1) Judicial or extrajudicial foreclosure of
mortgage; or
(2) File an ordinary action to collect the debt;
(3) Filing of violation of B.P. Blg. 22 in case the
loan is also secured by a check. (Tan, Civil
Procedure: A Guide for the Bench and the
Bar, Book III, 2022 Ed., p. 647)
408
Classification of Foreclosure of Mortgage 1. JUDICIAL FORECLOSURE

Judicial Extrajudicial Parties to (1) Mortgagee

Foreclosure Foreclosure Judicial (2) Mortgagor
(Rule 68) (Act 3135) Foreclosure (3) Successors in interest
Rule 68 and must be Extrajudicial (4) Junior encumbrancer/s
done in accordance foreclosure of Parties (1) Mortgage debtor;
with the procedure mortgage is governed Defendant; (2) Owner of property, if
therein prescribed. by Act No. 3135 as Indispensable not debtor;
amended and done Parties (3) Executor or
by the sheriff administrator of
pursuant to the deceased mortgagor;
special power of (4) Executor or
attorney inserted in administrator of the
the mortgage deceased owner; and,
document. (5) Heir/s of the deceased
Complaint is filed No complaint is filed; owner of the property
with the courts; Necessary All persons having claims or
No right of There is a right of Parties claiming an interest
redemption except redemption. subordinate to the holder
when mortgagee is a Mortgagor has a right of the mortgage, e.g.
banking institution; of redemption for 1 second mortgagee,
equity of redemption year from registration subsequent attaching
only (90 to 120 days, of the sale; creditor, and purchaser of
and any time before the mortgaged property
confirmation of (Rule 68, Sec. 1).
foreclosure sale);
Mortgagee can move Mortgagee has to file Outline: Procedure in a Foreclosure Case
for deficiency a separate action to
judgment in the same recover any The procedure in a foreclosure case may be
action; deficiency;
briefly outlined as follows:
Buyer at public Buyer at public
auction becomes auction becomes
absolute owner only absolute owner only FILING OF THE The mortgagee or his
after confirmation of after finality of an COMPLAINT assignee files the
the sale; action for foreclosure complaint,
consolidation of which shall set forth the
ownership; matters stated in Sec. 1
Mortgagee need not Mortgagee is given a Rule 68
be given a special special power of JUDGMENT OF If upon trial the court shall
power of attorney. attorney in the FORECLOSURE find the facts set forth in
mortgage contract to the complaint to be true, it
foreclose the shall determine the amount
mortgaged property due to the plaintiff upon
in case of default. the mortgage debt,
(M. De Leon, Remedial Law Reviewer-Primer, including interests and
other charges as approved
2021, p. 394)
by the court, and costs,

409
 and shall render judgment
for the sum so found due.
EQUITY OF The court shall order that
REDEMPTION the sum found due be paid
to the court or to the
judgment obligee within a
period of not less than 90
days nor more than 120
days from the entry of
judgment, and that in
default of such payment
the property shall be sold
at public auction to satisfy
the judgment. (Sec. 2, Rule
68)
FORECLOSURE If the defendant fails to
SALE pay within the period
specified in the judgment
of foreclosure, the plaintiff
shall file a motion for the
foreclosure sale of the
property. The sale shall be
conducted by way of a
public auction in the
manner and under the
provisions of Rule 39
governing execution sale of
real property.
ORDER OF After the foreclosure sale
CONFIRMATION
has been conducted, the
purchaser shall file a
motion for the confirmation
of the sale. The order of
confirmation of the sale
shall operate to divest the
rights in the property of all
the parties to the action
and to vest their rights in
the purchaser, subject to
such rights of redemption
as may be allowed by the
law. (Sec. 3, Rule 68)
WRIT OF Upon the finality of the
POSSESSION order of confirmation or
upon the expiration of the
redemption period when
allowed by law, the
purchaser or last
redemptioner can file with
the court which ordered
the foreclosure sale a
motion for the issuance of
a writ of possession over
the property. The
purchaser or last
redemptioner shall be
entitled to possession of
the property unless a third
party is actually holding the
same adversely to the
judgment obligor. (Sec. 3,
Rule 68)
DEFICIENCY If the proceeds of the
JUDGMENT foreclosure sale are not
sufficient to pay the
judgment award, the
plaintiff may file a motion
for the court to render a
deficiency judgment
against the defendant,
upon which execution may
issue immediately. (Sec. 6,
Rule 68)
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., pp. 981-983)
Requirements for filing an action for
foreclosure of real estate mortgage
The complaint shall set forth the:
(1) date and due execution of the mortgage;
(2) its assignments, if any;
(3) the names and residences of the mortgagor
and the mortgagee;
(4) a description of the mortgaged property;
(5) a statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage,
(6) the amount claimed to be unpaid thereon;
and
(7) the names and residences of all persons
having or claiming an interest in the property
subordinate in right to that of the holder of
410
 the mortgage, all of whom shall be made (3) that in default of such payment the property
defendants in the action. (Rule 68, Sec. 1) shall be sold at public auction to satisfy the
judgment (Rule 68, Sec. 2).
Note: In order to bind the principal by a mortgage
Period given for the payment of the sum due is
on real property executed by an agent, it must
not merely provisional but a SUBSTANTIVE
upon its face purport to be made, signed and
RIGHT granted to mortgage debtor as last
sealed in the name of the principal, otherwise, it
opportunity for him to pay his debt and save his
will bind the agent only. (Philippine Sugar Estates
mortgaged property from final disposition at a
Development Co., Ltd., Inc. v. De Coster, G.R.
foreclosure sale (Riano, Civil Procedure Vol. II,
No. 23352, December 31, 1926)
2016 Ed., p. 315).
Personal notice to the mortgagor
Rules on Equity and Right of Redemption
Well-settled is the rule that personal notice to the
Right of Equity of
mortgagor in extrajudicial foreclosure
Redemption Redemption
proceeding is not necessary. Section 3 of Act No.
The right of Equity of redemption
3135, as amended by Act No. 4118, requires redemption exists in exists only in judicial
only the posting of the notice of sale in three extrajudicial foreclosure.
public places and the publication of that notice in foreclosure.
a newspaper of general circulation. An In extrajudicial In judicial
exception tothis rule is when the parties stipulate foreclosure, the foreclosure, the
that personal notice is additionally required to be mortgagor (or his mortgagor (or his
successor-in- successor- in-
given to the mortgagor. Failure to abide by the
interest) may interest) may
general rule or its exception renders the exercise his right of exercise his equity of
foreclosure proceedings null and void (Panacan redemption within redemption during
Lumber Co. v. Solidbank Corp., G.R. No. 226272, one (1) year from the the period of not less
September 16, 2020, J. Hernando) registration of the than 90 days nor
sale in the Office of more than 120 days
the Registry of from entry of
Deeds. judgment of
Actions of the court if it finds the facts in
foreclosure or even
the complaint are true
Note: There is no after the foreclosure
right of redemption in sale but before the
If upon trial, the court shall find the facts set forth judicial foreclosure of judicial confirmation
in the complaint to be true, it shall: mortgage, except of the same.
(1) Ascertain the amount due to the plaintiff only if the mortgage
upon the mortgage debt or obligation, is the Philippine
including interest and other charges as National Bank or any
approved by the court and the costs; and; banking
(2) Render judgment for the sum so found due institution.(GSIS vs.
and order that the same be paid to the court The CFI of Iloilo, G.R.
or to the judgment obligee within a period of No. 45322, July 5,
not less than 90 days but not more than 120 1989; R.A. No. 8791)
days from entry of judgment; and (Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book III, 2022 Ed., p. 656)

411
Redemption
In general, the concept of redemption is to allow
the owner to repurchase or buy back, within a
certain period and for a certain amount, a
property that has been sold due to debt, tax, or
encumbrance (Iligan Bay Manufacturing Corp. vs.
Dy, G.R. Nos. 140836 & 140907, June 08, 2007).
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
When the defendant, after being directed to do
so as provided in the next preceding section, fails
to pay the amount of the judgment within the
period specified therein, the court, upon motion,
shall:
(1) Order the property to be sold in the manner
and under the provisions of Rule 39 and
other regulations governing sales of real
estate under execution;
(2) Such sale shall not affect the rights of
persons holding prior encumbrances upon
the property or a part thereof; and
(3) when confirmed by an order of the court,
also upon motion, it shall operate to divest
the rights in the property of all the parties to
the action and to vest their rights in the
purchaser, subject to such rights of
redemption as may be allowed by law. (Rule
68, Sec. 3[1])
Rights of the purchaser in an auction sale
Upon the finality of the order of confirmation or
upon the expiration of the period of redemption
when allowed by law, the purchaser at the
auction sale or last redemptioner, if any, shall be:
(1) Entitled to the possession of the property
unless a third party is actually holding the
same adversely to the judgment obligor.
(2) The said purchaser or last redemptioner may
secure a writ of possession, upon motion,
from the court which ordered the
foreclosure. (Rule 68, Sec. 3[2])
The title 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.).
Disposition of proceeds of sale
The amount realized from the foreclosure sale of
the mortgaged property shall, after deducting the
costs of the sale, be:
(1) Paid to the person foreclosing the mortgage,
and
(2) When there shall be any balance or residue,
after paying off the mortgage debt due, the
same shall be paid to junior encumbrancers
in the order of their priority, to be
ascertained by the court, or
(3) if there be no such encumbrancers or there
be a balance or residue after payment to
them, then to the mortgagor or his duly
authorized agent, or to the person entitled
to it. (Rule 68, Sec. 4)
In the absence of any evidence showing that the
mortgage also covers the other obligations of the
412
mortgagor, the proceeds from the sale should not (4) A mortgagor, who is not a debtor and merely
be applied to them. (Philippine Bank of Executed the mortgage to secure a principal
Communications v. Yeung, G.R. No. 179691, debtor’s obligation, is not liable for
deficiency UNLESS he assumed liability for
December 4, 2013)
the same in contract (Phil. Trust Company
vs. Siua, G.R. no. No. 29736, February 28,
Order of Confirmation Appealable 1929; Riano, Civil Procedure Vol. II, 2016
The order of confirmation is appealable. If not Ed., p. 322).
appealed within the period for appeal, it becomes
final (Riano, Civil Procedure Vol. II, 2016 Ed., Registration of Sale
p.319).
A certified copy of the final order of the court
The mortgagor is entitled to a notice of hearing confirming the sale shall be registered in the
of the confirmation of the sale. Otherwise, the Registry of Deeds. If no right of redemption
order is void. Due process requires that said exists, the certificate of title in the name of the
notice be given so that the mortgagor can resist mortgagor shall be cancelled, and a new one
the motion and be informed that his right to issued in the name of the purchaser. (Rule 68,
redeem is cut off (Tiglao vs. Botones, G.R. No. L- Sec. 7).
3619, October 29, 1951).
Where NO right of Where Right of
Deficiency Judgment redemption exists Redemption Exists
The certificate of title The certificate of title
in the name of the in the name of the
Deficiency judgment may be awarded in favor of
mortgagor shall be mortgagor shall not
the plaintiff against the mortgagor, if the
cancelled, and a new be cancelled, but the
proceeds of the sale of the property are not one issued in the certificate of sale and
sufficient to satisfy the judgment. Motion for name of the the order confirming
deficiency judgment must be filed after the sale, purchaser the sale shall be
when the deficiency is known (Rule 68, Sec. 6). registered and a brief
memorandum thereof
made by the registrar
Instances where court cannot render
of deeds upon the
deficiency judgment certificate of title
(ibid.)
(1) Recto Law (see: Art. 1484 of the NCC) –
where the mortgagor is a non-resident,
If Property is If Property is NOT
UNLESS there is attachment
Redeemed Redeemed
Ratio: Deficiency judgment is an action in
The deed of The final deed of sale
personam and jurisdiction over the person redemption shall be executed by the
is mandatory. Since the debtor is outside registered with the sheriff in favor of the
the country, jurisdiction over his person registry of deeds, and purchaser at the
cannot be acquired. a brief memorandum foreclosure sale shall
(2) When mortgagor Dies - the mortgagee must thereof shall be made be registered with
file his claim with the probate court (Rule 86, by the registrar of the registry of deeds;
Sec. 7). deeds on said whereupon the
(3) Mortgagor is a Third person but not solidarily certificate of title certificate of title in
liable with the debtor. the name of the
mortgagor shall be

413
 cancelled and a new
one issued in the
name of the
purchaser
(ibid.)
2. EXTRAJUDICIAL FORECLOSURE
(ACT NO. 3135, AS AMENDED)
Authority to foreclose extrajudicially
The Supreme Court declared that there is
authority to foreclose extrajudicially when the
mortgagee document empowers the mortgagee
to extrajudicially foreclose the property. Such
authority to extrajudicially foreclose by necessary
implication carries with it the grant of power to
sell the property at a public auction. It is only
when the deed is silent as to the grant of
authority to extrajudicially foreclose on the
mortgage that a mortgagee is prevented from
availing of such remedy (Sps. Baysa v. Sps.
Plantilla, G.R. No. 159271, July 13, 2015).
Procedure
Rule 68 does not provide for any special
provisions on the mechanics of a suit. Hence, a
foreclosure suit will proceed like an ordinary civil
action in so far as not inconsistent with Rule 68
(Riano, Civil Procedure Vol. II, 2016 Ed., pp. 314-
315).
Posting requirements
Before the sale of the real property/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. 15[c], Rule 39).
● Written notice to the judgment obligor atleast
three (3) days before the sale (Sec. 15[d],
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
atleast 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).
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.
15[c], Rule 39).
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.
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).
The publication and posting of the notice of the
rescheduled extrajudicial foreclosure sale are
414
mandatory and jurisdictional. The ensuing
foreclosure sale held without the publication and
posting of the notice is void ab initio. This is
because the requirements of publication and pos
ting emanate from public policy considerations,
and are not for the benefit of the parties to the
mortgage. (Spouses Bautista v. Premiere
Development Bank, G.R. No. 201881, [September
5, 2018)
Waiver of posting and publication
Waiver of posting and publication is void for
Notices are given to secure bidders and prevent
a sacrifice of the property. Clearly, 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. (Spouses
Bautista v. Premiere Development Bank, G.R. No.
201881, September 5, 2018)
Right of Redemption for Extrajudicial
Foreclosure
Act 3135, juridical persons whose property is
being sold pursuant to an extrajudicial
foreclosure, shall have the right to redeem
the property in accordance with this provision
until, but not after, the registration of the
certificate of foreclosure sale with the applicable
Register of Deeds which in no case shall be more
than three (3) months after foreclosure,
whichever is earlier. Owners of property that has
been sold in a foreclosure sale prior to the
effectivity of this Act shall retain their redemption
rights until their expiration. (Spouses Limso v.
Philippine National Bank, G.R. Nos. 158622,
169441, 172958, 173194, 196958, 197120 &
205463, January 27, 2016)
Where, after extrajudicial foreclosure of a real
estate mortgage, the mortgagee purchased the
same at the foreclosure sale, he shall be entitled
to a writ of possession despite the fact that the
premises are in the possession of a lessee whose
lease had not yet terminated, unless the lease
had been previously registered in the Registry of
Property or the mortgagee had prior actual
knowledge of the existence of the Sec. 7 of Act
3135, as amended, the petition for such writ of
possession shall be made under oath and filed as
an ex parte motion in the registration or cadastral
proceedings of the property (Ibasco vs. Caguioa,
G.R. No. 62619, August 19, 1986).
Who may redeem
(a) The judgment obligor; or
(b) His successor in interest in the whole or any
part of the property;
(c) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor
is termed a redemptioner (Rule 39, Sec. 27).
Amount of Redemption Price
(a) Purchase price;
(b) 1% interest thereon, up to the time of
redemption;
(c) Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last-named
amount at the same rate; and
(d) If the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest. (Rule 39, Sec. 28)
The redemption price if the property is redeemed
by a subsequent redemptioners:
415
(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.
(ibid).
Period for redemption
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.
And as provided by Act No. 3135, as amended,
the mortgagor may redeem the foreclosed
property within one (1) year from the date of the
sale.
As a general rule, the mortgagor may redeem the
foreclosed property within one (1) year from the
date of the sale. 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)
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.
Effect of Pendency of Action For Annulment
of Sale
The periods for redemption are not extendible or
interrupted. 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).
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).
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 (ibid).
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. 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
416
 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) (Sps.
Reyes vs. Sps. Chung, G.R. No. 228112,
September 13, 2017).
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 (1) within the one-
year redemption period, upon the filing of a bond;
or (2) after the lapse of the redemption period,
without need of a bond. (Gopiao v. Metropolitan
Bank and Trust Co., G.R. No. 188931, July 28,
2014)
The proceeding upon an application for a writ of
possession is ex parte and summary in nature,
brought for the benefit of one party only and
without notice being sent by the court to any
person adverse in interest. The relief is granted
even without giving an opportunity to be heard to
the person against whom the relief is sought. Its
nature as an ex parte petition under Act No.
3135, as amended, renders the application for the
issuance of a writ of possession a non-litigious
proceeding. (Mallari v. Government Service
Insurance System, G.R. No. 157659, January 25,
2010)
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.
Issuance of Writ of Possession
Act No. 3135 only applies when the one-year
redemption period has not yet lapsed.
The general rule is that in extra-judicial
foreclosures, a writ of possession may be issued
to the purchaser in two different instances, and
based on two different sources:
(1) within the redemption period, in accordance
with Act No. 3135, particularly Section 7, as
amended; and
(2) after the lapse of the redemption period,
based on the purchaser's right of ownership.
In the first instance, Section 725 of Act No. 3135
provides that the purchaser in a foreclosure sale
may apply for a writ of possession by filing an ex
parte motion under oath. The provision also
requires that a bond be furnished and approved,
and no third person is involved.
On the other hand, Section 8 of the same Act, as
amended, provides the remedy available to the
debtor, that is, the opportunity to contest the
transfer of possession but only within the period
of redemption. (Spouses Torrecampo v. Wealth
Development Bank Corp., G.R. No. 221845,
March 21, 2022, J. Hernando)
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 (Sec. 8, Act No. 3135 as
amended by Act No. 4118)
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, even by
the 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).
417
Exceptions:
(1) Gross inadequacy of purchase price
(2) Third party claiming right adverse to
debtor/mortgagor
(2) Failure to pay the surplus proceeds of the
sale to mortgagor (UCPB vs. Nagtalon, G.R.
No. 172504, July 31, 2013).
Remedy of the Debtor
The debtor may, in the proceedings in which
possession was requested, but not later than
thirty days after the purchaser was given
possession, petition that the sale be set aside and
the writ of possession cancelled, specifying the
damages suffered by him, because the mortgage
was not violated or the sale was not made in
accordance with the provisions hereof. (Sec. 8,
Act No. 3135 as amended by Act No. 4118)
Actions that the Court may perform
The court shall take cognizance of this petition in
accordance with the summary procedure
provided for in section one hundred and twelve
of Act Numbered Four hundred and ninety-six;
and if it finds the complaint of the debtor justified,
it shall dispose in his favor of all or part of the
bond furnished by the person who obtained
possession. (ibid.)
Remedy of the parties from the order of the
judge
Either of the parties may appeal from the order
of the judge in accordance with section fourteen
of Act Numbered Four hundred and ninety-six;
but the order of possession shall continue in
effect during the pendency of the appeal. (ibid.)
Rights of the redeemer after the
redemption
When the property is redeemed after the
purchaser has been given possession, the
redeemer shall be entitled to:
(1) deduct from the price of redemption any
rentals that said purchaser may have
collected in case the property or any part
thereof was rented;
(2) if the purchaser occupied the property as his
own dwelling, it being town property, or
used it gainfully, it being rural property, the
redeemer may deduct from the price the
interest of one per centum per month
provided for in section four hundred and
sixty-five of the Code of Civil Procedure (Sec.
9, Act No. 3135 as amended by Act No.
4118)
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. (ibid.)
418
 3. THE GENERAL BANKING LAW OF
2000 (SEC. 47, RA 8791)
The Court had ruled that Section 78 of Republic
Act (RA) No. 337 or the "General Banking Act," as
amended, (now Section 47 of RA No. 8791 or the
"General Banking Law of 2000”) shall govern in
cases where the mortgagee is a bank, and not
the Rules of Court in relation to Section 6 of Act
No. 3135, as amended by Act No. 4118. (Bank of
the Philippine Islands v. LCL Capital, Inc., G.R.
Nos. 243396 & 243409, September 14, 2021)
Right of Redemption under R.A. No. 8791
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. (Section 78 of RA No.
337; Bank of the Philippine Islands v. LCL Capital,
Inc., G.R. Nos. 243396 & 243409, September 14,
2021)
Notwithstanding Act 3135, juridical persons
whose property is being sold pursuant to an
extrajudicial foreclosure, shall have the right to
redeem the property in accordance with this
provision until, but not after, the registration of
the certificate of foreclosure sale with the
applicable Register of Deeds which in no case
shall be more than three (3) months after
foreclosure, whichever is earlier. Owners of
property that has been sold in a foreclosure sale
prior to the effectivity of this Act shall retain their
redemption rights until their expiration. (Sec. 47,
R.A. No. 8791)
Effect of Confirmation of Sale
Sec. 47, par. 1, of the General Banking Law of
2000 explicitly provides the right of redemption
under judicial foreclosure of mortgage.
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.
It 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. (Sec. 47, R.A. No. 8791)
Judicial Extrajudicial
Foreclosure Foreclosure
Mortgagor may Juridical persons shall
exercise right of have the right to redeem
redemption within until, but not after, the
one year after the registration of the
sale, when the certificate of foreclosure
loan or credit sale with the Register of
accommodation is Deeds which in no case
granted by a bank shall be more than 3
months after foreclosure,
whichever is earlier.
(Sec. 47, R.A. No. 8791)
Such interpretation is in harmony with the
avowed purpose of R.A. No. 8791 in providing for
a shorter redemption period for juridical persons.
In Goldenway Merchandising Corporation v.
Equitable PCI Bank, the Court explained that the
419
shortened period under Section 47 of R.A. No.
8791 served as additional security for banks to
maintain their solvency and liquidity, to wit:
The difference in the treatment of juridical
persons and natural persons was based on the
nature of the properties foreclosed - whether
these are used as residence, for which the more
liberal one-year redemption period is retained, or
used for industrial or commercial purposes, in
which case a shorter term is deemed necessary
to reduce the period of uncertainty in the
ownership of property and enable mortgagee-
banks to dispose sooner of these acquired assets.
It must be underscored that the General Banking
Law of 2000, crafted in the aftermath of the 1997
Southeast Asian financial crisis, sought to reform
the General Banking Act of 1949 by fashioning a
legal framework for maintaining a safe and sound
banking system. In this context, the amendment
introduced by Section 47 embodied one of such
safe and sound practices aimed at ensuring the
solvency and liquidity of our banks. It cannot
therefore be disputed that the said provision
amending the redemption period in Act 3135 was
based on a reasonable classification and germane
to the purpose of the law. [Emphasis supplied]
To adopt Grandwood's position that Section 47 of
R.A. No. 8791 no longer applies would defeat its
very purpose to provide additional security to
mortgagee-banks.The shorter redemption period
is an incentive which mortgagee-banks may use
to encourage prospective assignees to accept the
assignment of credit for a consideration. If the
redemption period under R.A. No. 8791 would be
extended upon the assignment by the bank of its
rights under a mortgage contract, then it would
be tedious for banks to find willing parties to be
subrogated in its place. Thus, it would adversely
limit the bank's opportunities to quickly dispose
of its hard assets, and maintain its solvency and
liquidity. (White Marketing Development Corp. v.
Grandwood Furniture & Woodwork, Inc., G.R. No.
222407, November 23, 2016)
H. PARTITION (RULE 69)
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, 2022 Ed., p.
993)
Partition is the separation, division and
assignment of a thing held in common among
those to whom it may belong. Every act intended
to put an end to indivision among co-heirs, and
legatees or devisees, is deemed to be a partition.
(Lipa Agricultural Development Corp. v. Salas,
G.R. No. 242646 (Notice), June 30, 2021)
Nature of an action for Partition
It is an action quasi in rem since it is not only
directed against a particular person, but it
constitutes a lien on the property subject matter
of the action with the intention of excluding the
interest of the defendant therein. (Tan, Civil
Procedure: A Guide for the Bench and the Bar,
Book III, 2022 Ed., p. 699)
Purpose of Partition
The purpose of partition being to separate,
divide, and assign a thing held in common among
those to whom it may belong. (Gabila v. Perez,
G.R. No. L-29541, January 27, 1989)
Classes of Partition
Voluntary is a division of the property by
partition the act of the parties
themselves
Compulsory is a partition by judicial
partition proceedings at the instance of
one or more of the co-tenants
420
 without regard to the wishes of
the other co-tenants.
(Tan, Civil Procedure: A Guide for the Bench and
the Bar, Book III, 2022 Ed., p. 699)
Kinds of Partition
Total Partition is total when all the
things are divided among the
participants
Partial When some of the things are
divided, the rest remaining in
community ownership
Provisional Partition is provisional when it
is temporary or conditional
(Art. 1084), that is, until a final
or definitedivisionismade
Definite When the division resulting is
permanent, final and absolute
Judicial udicial partition takes place
when the court intervenes and
approves the division (Rules 90
and 69, Rules of Court)
Extrajudicial The division may be made by
the testator himself, or by
some person named by the
deceased or amicably by the
interested heirs (Sec. 1, Rule
74) by common agreement
(ibid. p. 700)
Instances when Partition is not Available
(1) Court may not order partition of an estate
in an action for quieting of title. (Heirs of
Marquez v. Heirs of Hernandez, G.R. No.
236826, March 23, 2022, J. Hernando)
There are instances when co-owner may not
demand partition at anytime as when:
(2) There is an agreement among the co-owners
to keep the property undivided for a certain
period of time but not exceeding ten (10)
years (Art. 494, NCC);
(3) b) When partition is prohibited by the donor
or testator for a period not exceeding twenty
years (Art. 494; Art. 1083, NCC);
(4) c) When partition is prohibited by law (Art.
494, NCC);
(5) d) When the property is not subject to a
physical division and to do so would render
it unserviceable for the use for which it is
intended (Art. 495, NCC);
(6) e) When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled (Art. 1084,
NCC);
(7) An important principle to note is that
prescription 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 implied. (Art. 494,
NCC; Tan, Civil Procedure: A Guide for the
Bench and the Bar, Book III, 2022 Ed., pp.
707-708)
Issues in an action for partition
Action for partition raises two issues:
(1) whether plaintiff is co-owner of property
(2) assuming plaintiff is co-owner, how to divide
the property between plaintiff and defendant
or among the co-owners (M. De Leon,
Remedial Law Reviewer-Primer, 2021, p.
410)
421
Parties in a Partition
Who may Partition of the estate of a
effect decedent may only be
partition of effected by:
the estate?
(1) the heirs themselves
extrajudicially,
(2) the court in an ordinary
action for partition,
(3) testator himself, and
(4) the third person
designated by the
testator
(Sec. 1, Rule 69; M. De
Leon, Remedial Law
Reviewer-Primer, 2021, p.
410)
Where one of the co-
owners died, an
administrator has power to
commence and prosecute
an action of partition of real
estate among the heirs of
the decedent. (Albano vs
Agtarap, G.R. No.
7075. March 25, 1912)
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 All other persons interested
be made in the property. (Sec. 1,
defendants Rule 69)
Effect of Non-inclusion of a co-owner
(a) 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).
(b) After Judgment – 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. In an action for
partition, all the co-heirs and persons having an
interest in the property are indispensable parties;
as such, an action for partition will not lie without
the joinder of the said parties (Agcaoili v. Mata,
G.R. No. 224414, February 26, 2020)
Rules on Prescription in an Action for
Partition
Action for partition is imprescriptible for as long
as the co-owners expressly or impliedly recognize
the co-ownership (Heirs of Bartolome Infante vs.
Court of Appeals, G.R. No. 77202, June 22, 1988;
M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 409)
However, if a co-owner repudiates the co-
ownership and makes known such repudiation to
the other co-owners, then partition is no longer a
proper remedy of the aggrieved co-owner. S/he
should filed an accion reivindicatoria which is
prescriptible. —10 years (Heirs of Catctlino Jardin
vs. Heirs of Sixto Hallasgo, G.R. No. L-55225,
September SO, 1982; M. De Leon, Remedial Law
Reviewer-Primer, 2021, p. 409).
Nature of determination of issue of co-
ownership in an action for partition
The determination as to the existence of co-
ownership is necessary in the resolution of an
action for partition. An admission is any
statement of fact made by a party against his
interest or unfavorable to the conclusion for
which he contends or is inconsistent with the
facts alleged by him. (Lacbayan v. Samoy, Jr.,
G.R. No. 165427, March 21, 2011)
Burden of proof in an action for partition
The plaintiff has the burden of proof, as the party
demanding the partition of property, to establish
422
her right to a share in the property by
preponderance of evidence. (Tan, Civil
Procedure: A Guide for the Bench and the Bar,
Book III, 2022 Ed., p. 719)
Outline: Proceedings in judicial partition.
The proceedings in judicial partition may be
briefly outlined as follows:
COMPLAINT A person having the right
to compel the partition of
real estate may file a
complaint for partition,
setting forth the nature
and extent of his title and
an adequate description
of the real estate of which
partition is demanded and
joining as defendants all
other persons interested
in the property.
ORDER FOR fafterthetrialthecourt finds
PARTITION that the plaintiff has the
right thereto, it shall
order the partition of the
real estate among all the
parties in interest. (Sec.
2, Rule 69).
PARTITION BY he parties may, if they
AGREEMENT are able to agree, make
the partition among
themselves by proper
instruments of
conveyance, and the
court shall confirm the
partition agreement (Sec.
2, Rule 69).
PARTITION BY If the parties cannot
COMMISSIONERS agree on the partition,
the court shall appoint
not more than 3
competent and
disinterested persons as
commissioners to make
the partition (Sec. 3, Rule
69).
PROCEEDINGS The commissioners shall:
BEFORE THE (a) partition the property,
COMMISSIONERS b) if the real estate
cannot be divided without
prejudice to the interests
of the parties, the court
may assign it to one of
the parties willing to take
it, provided he pays to
the other parties such
amounts as the
commissioners deem
equitable, unless one of
the interested parties
asks that the property be
sold instead of being
assigned, in which case
the court shall (c) order
the commissioners to sell
the property at public
sale.
REPORT OF shall make a full and
COMMISSIONERS accurate report to the
court of all their
proceedings as to the
partition, or the
assignment of the real
estate to one of the
parties, or the sale of the
real estate. Upon the
filing of the report the
clerk of court shall serve
copies on all interested
parties with notice that
they have 10 days within
which to file objections to
the findings of the report.
ACTION OF Upon the expiration of
COURT UPON the 10- day period, the
REPORT, court may upon hearing:
JUDGMENT OF (a) accept the report and
PARTITION. render judgment in
accordance therewith; (b)
recommit the report to
the commissioners for
further report of facts; or
(c) set aside the report
423
 and appoint new case may be. (Silva v. Lo, G.R. No. 206667, [June
commissioners; or (d) 23, 2021, J. Hernando)
accept the report in part
and reject it in part; and
First Stage — Suit is taken up with the
make such order and
Determination determination of whether or
render judgment as shall
of the not a co-ownership in fact
effectuate a fair and just
propriety of exists, (i.e., not otherwise
partition of the real estate
partition legally proscribed) and may
or its value (where the
(Order of be made by voluntary
realty is assigned or sold)
partition) agreement of all the parties
between the several
interested in the property.
owners thereof.
This phase may end with a
(Riguera, Primer-Reviewer on Remedial Law, declaration that plaintiff is
2022 Ed., pp. 997-998) not entitled to have a
partition either because a co-
Matters to Alleged in the Complaint for ownership does not exist, or
Partition partition is legally prohibited.
(1) Nature and extent of the plaintiff’s title It may end, upon the other
hand, with an adjudgment
(2) Adequate description of real estate of which
that a co-ownership does in
partition is demanded; and truth exist, partition is proper
(3) Defendants and all other persons interested in the premises and an
in the property are joined (Rule 69, Sec. 1) accounting of rents and
profits received by the
Note: He must also include a demand for the defendant from the real
accounting of the rents, profits and other income estate in question is in order.
In the latter case, the parties
from the property which he may be entitled to
may, if they are able to
(Rule 69, Sec. 8). These cannot be demanded in agree, make partition among
another action because they are parts of the themselves by proper
cause of action for partition. They will be barred instruments of conveyance,
if not set up in the same action pursuant to the and the court shall confirm
rule against splitting a single cause of action. the partition so agreed upon.
In either case — i.e., either
the action is dismissed or
Two Stages of an Action for Partition partition and/or accounting is
decreed — the order is a final
In our jurisdiction, Rule 69 of the Rules of Court one, and may be appealed by
have laid down two phases of an action for any party aggrieved thereby.
partition: first, the trial court, after determining Second Stage commences when it appears
that a co-ownership in fact exists and that — Actual that "the parties are unable
partitioning of to agree upon the partition"
partition is proper, issues an order for partition;
the subject directed by the court. In that
and, second, the trial court promulgates a property event, partition shall be done
decision confirming the sketch and subdivision of (Judgment of for the parties by the court
the properties submitted by the parties (if the partition) with the assistance of not
parties reach an agreement) or by the appointed more than three (3)
commissioners (if the parties fail to agree), as the commissioners. This second
stage may well also deal with

424
 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. Such an order is,
to be sure, final and
appealable.
(Silva v. Lo, G.R. No. 206667, [June 23, 2021, J.
Hernando)
Actions of the Court in case the parties fail
to agree to partition the property
If the parties are unable to agree upon the
partition, the court shall:
(1) appoint not more than three (3) competent
and disinterested persons as commissioners;
(2) Ordering the commissioners to make the
partition;
(3) Commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court shall
direct. (Rule 69, Sec. 3)

Requirements before the Commissioners

Actions of the Court in case of a Complaint
can assume their function
for Partition; Order of partition and
partition by agreement
Before making such partition, the commissioners
shall:
If after the trial the court finds that the plaintiff
(1) Take and subscribe an oath that they will
has the right thereto, it shall:
faithfully perform their duties as
(1) order the partition of the real estate among
commissioners;
all the parties in interest.
(2) Such oath shall be filed in court with the
(2) Thereupon the parties may, if they are able
other proceedings in the case. (Rule 69, Sec.
to agree, make the partition among
4)
themselves by proper instruments of
conveyance, and
Duties of the commissioners in making the
(3) The court shall confirm the partition so
partition
agreed upon by all the parties, and such
partition, together with the order of the
In making the partition, the commissioners shall:
court confirming the same, shall be recorded
(1) view and examine the real estate, after due
in the registry of deeds of the place in which
notice to the parties to attend at such view
the property is situated. (Rule 69, Sec. 2)
and examination;
(2) shall hear the parties as to their preference
Partition by Agreement
in the portion of the property to be set apart
After issuance of Order of Partition and the
to them and the comparative value thereof;
parties are able to agree, they may make the
and
partition among themselves by proper
(3) shall set apart the same to the parties in lots
instruments of conveyance:
or parcels as will be most advantageous and
(1) confirmed by the court; and,
equitable, having due regard to the
(2) recorded in the registry of deeds of the place
improvements, situation and quality of the
in which the property is situated (Rule 69,
different parts thereof. (ibid)
Sec. 2).

425
Actions of the Commissioner if the property
cannot be divided
When it is made to appear to the commissioners
that the real state, or a portion thereof, cannot
be divided without prejudice to the interests of
the parties, the court may:
(1) order it assigned to one of the parties willing
to take the same, provided he pays to the
other parties such amount as the
commissioners deem equitable;
(3) unless one of the interested parties asks that
the property be sold instead of being so
assigned, in which case the court shall order
the commissioners to sell the real estate at
public sale under such conditions and within
such time as the court may determine. (Rule
69, Sec. 5)
Report of the Commissioner
(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) The sale of the same
Upon the filing of such a report, the clerk of court
shall serve copies thereof on all the 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 69, Sec. 6).
Note: 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 (ibid.)
Actions of the court upon commissioners’
report
Upon the expiration of the period of ten (10) days
to file objections; 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:
(1) Upon hearing, accept the report and render
judgment in accordance therewith; or,
(2) For cause shown, recommit the same to the
commissioners for further report of facts; or
(3) Set aside the report and appoint new
commissioners; or
(4) Accept the report in Part and reject it in part;
or
(5) Make such order and render such judgment
(Rule 69, Sec. 7).
Rules on the rents and profits earned by the
property
In an action for partition in accordance with this
Rule, a party shall:
(1) recover from another his just share of rents
and profits received by such other party from
the real estate in question, and
(2) the judgment shall include an allowance for
such rents and profits. (Rule 69, Sec. 8).
Powers of the guardian in an action for
partition
The guardian or guardian ad litem of a minor or
person judicially declared to be incompetent may,
with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or
thing respecting the partition of real estate, which
the minor or person judicially declared to be
incompetent could do in partition proceedings if
he were of age or competent (Rule 69, Sec. 9).
Actions of the court on the expenses and
cost of the pleadings
The court shall:
426
(1) Equitably tax and apportion between or
If the whole The judgment To vest in the
among the parties the costs and expenses
property is shall state the party making
which accrue in the action;
assigned to fact of such the payment
(2) Apportionment of the compensation of the
one of the payment and the whole of
commissioners, having regard to the
parties The the real estate
interests of the parties, and execution may
upon his assignment of free from any
issue therefor as in other cases. (Rule 69,
paying to the real estate interest on the
Sec. 10).
the others to the party part of the
the sum or making the other parties
Judgment and Its Effects
sums payment to the action
ordered by
The judgment shall have the effect of vesting in
the court.
each party to the portion of real estate assigned
to him. If the The judgment To vest the
property is shall state the real estate in
If the whole property is assigned to one of the sold and name of the the purchaser
parties upon his paying to the others the sum/s the sale is purchaser or or purchasers
ordered by the court, the effect of the judgment confirmed purchasers making the
shall be to vest the whole real estate free from by the and a definite payment/s,
any interest on the part of the other party to the court. description of free from the
action. the parcels of claims of any
real estate of the parties
If the property is sold and the sale is confirmed sold to each to the action
by the court, the effect of the judgment shall be purchaser
to vest the real estate in the purchaser/s making
payment free from all the claims of any parties to (Rule 69, Sec. 11).
the action (Rule 69, Sec. 11).
Note: A case for partition and an action for
quieting of title have identical causes of action
Judgment Contents of Effect of and can therefore be the subject of res judicata
Judgment Judgment (Heirs of Gaudine vs. CA, G.R. No. 119879, March
11, 2004).
If actual The judgment To vest in
partition of shall state each party to
Recording of Judgment
property is definitely, by the act, in
made. metes and severalty the
A certified copy of the judgment shall in either
bounds and portion of the
case be recorded in the registry of deeds of the
adequate estate
place in which the real estate is situated, and the
description, assigned to
expenses of such recording shall be taxed as part
the particular him
of the costs of the action. (Rule 69, Sec. 11).
portion of the
estate assigned
Effects in case another person has rights
to each party
over the property

427
Nothing in this Rule contained shall be construed dispossession. MTC has
so as to: exclusive jurisdiction.
(1) prejudice, defeat, or destroy the right or title Accion plenaryactiontorecoverthe
of any person claiming the real estate publiciana right of possession when
dispossession has lasted
involved by title under any other person, or
for more than one year or
(2) by title paramount to the title of the parties when dispossession was
among whom the partition may have been effected by means other
made, than those mentioned in
(3) nor so as to restrict or prevent persons Rule 70, Sec. 1.
holding real estate jointly or in common from Accion action to recover
making an amicable partition thereof by reivindicatoria ownership, including the
recovery of possession.
agreement and suitable instruments of
(M. De Leon, Remedial Law Reviewer-Primer,
conveyance without recourse to an action.
2021, p. 417)
(Rule 69, Sec. 12).
Ejectment
Partition of personal property
Ejectment is a form of action which possessory
The provisions of this Rule shall apply to titles to corporeal hereditaments may be tried and
partitions of estates composed of personal possession obtained or which lies to regain the
property, or of both real and personal property, possession of real property, with damages for the
illegal detention (Tan, Civil Procedure: A Guide
in so far as the same may be applicable (Rule 69,
For the Bench and the Bar, Book III, 2022 Ed., p.
Sec. 13). 742)

I. FORCIBLE ENTRY AND UNLAWFUL Nature of Ejectment Proceedings

DETAINER (RULE 70)
An ejectment suit is summary in nature and is
Three (3) Kinds of Possessory Action on not susceptible to circumvention by the simple
Real Property expedient of asserting ownership over the
property. (J.B. Tirol Boracay Properties Corp. v.
Accion summary action for Tapuz, Jr., G.R. No. 209622 (Notice), June 27,
interdictal forcible entry and unlawful 2022)
detainer which is brought
within one year from

Kinds of Ejectment Suits

There are two (2) kinds of ejectment suits, namely: (1) forcible entry; and (2) unlawful detainer, the
differences of which may be summarized as follows:

Forcible Entry Unlawful Detainer

Possession The possession of the defendant or the The possession is previously legal but
intruder is illegal from the beginning eventually becomes unlawful upon the
because his/her possession of the expiration of one's right to possess the
property is against the will or without the

428
 consent of the plaintiff or the former
possessor.
Thus, plaintiff must allege in the
complaint and prove that he/she was in
prior physical possession of the property
in litigation until he/she was deprived
thereof by the defendant.
Demand to No previous demand to vacate is
Vacate required before the filing of the action.
Prescriptive In general, the one-year prescriptive
Period period is reckoned from the date of
actual entry on the property. However, if
forcible entry is done through stealth,
the period is counted from the time the
plaintiff discovered the entry.
(Palajos v. Abad, G.R. No. 205832, March 7, 2022, J. Hernando; )
Forcible Entry
It is where one is deprived of physical possession
of real property by means of force, intimidation,
threat, strategy, or stealth (Rule 70, Sec. 1).
Elements of Forcible Entry
The three elements that must be alleged and
proved for a forcible entry suit to prosper are
the following:
(a) plaintiff had prior physical possession of
the property before the defendant
encroached on the property; caITAC
(b) plaintiff was deprived of possession either
by force, intimidation, threat, strategy or
stealth by defendant; and
(c) that the action was filed within one (1)
year from the time the plaintiff learned of
his deprivation of the physical possession
of the property, except that when the
entry is through stealth, the one (1) year
period is counted from the time the
plaintiff-owner or legal possessor learned
of the deprivation of the physical
possession of the property. (Palajos v.
Abad, G.R. No. 205832, March 7, 2022, J.
Hernando)
property after, for instance, the
termination or violation of a lease contract.
Thus, the plaintiff need not have prior
physical possession of the property.
Prior to the filing of the action, plaintiff
must issue a demand to vacate to
defendant, which the latter fails to comply
The one-year period in unlawful detainer is
counted from the date of the last demand
to vacate.
Unlawful Detainer
It is where one illegally withholds possession after
the expiration or termination of his right to hold
possession by virtue of any contract, express or
implied (Rule 70, Sec. 1).
Jurisprudence defines unlawful detainer as an
"action to recover possession of real property
from one who illegally withholds possession after
the expiration or termination of [their] right to
hold possession under any contract, express or
implied." "The possession of the defendant in
unlawful detainer is originally legal but became
illegal due to the expiration or termination of the
right to possess." (J.B. Tirol Boracay Properties
Corp. v. Tapuz, Jr., G.R. No. 209622 (Notice),
June 27, 2022)
Elements of Unlawful Detainer
Plaintiff must allege and prove to successfully
prosecute a case for unlawful detainer, to wit:
(1) Initially, possession of property by the
defendant was by contract with or by
tolerance of the plaintiff;
429
(2) eventually, such possession became illegal in pursuance of the summary nature of the
upon notice by plaintiff to defendant of the action. The use of summary procedure in
termination of the latter's ejectment cases is intended to provide an
right of possession;
expeditious means of protecting actual
(3) thereafter, the defendant remained in
possession of the property and deprived possession or right to possession of the property.
the plaintiff of the enjoyment of the same; They are not processes to determine the actual
and title to an estate. If at all, inferior courts are
(4) within one (1) year from the last demand empowered to rule on the question of ownership
on defendant to vacate the property, the raised by the defendant in such suits, only to
plaintiff instituted the complaint resolve the issue of possession. Its determination
for ejectment. (J.B. Tirol Boracay Properties
on the ownership issue is, however, not
Corp. v. Tapuz, Jr., G.R. No. 209622
(Notice), June 27, 2022) conclusive. (A. Francisco Realty and Development
Corp. v. Court of Appeals, G.R. No. 125055,
Nature and Purpose October 30, 1998)

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).
Forcible entry and unlawful detainer are quieting
processes and the one-year time bar to the suit is
By its very nature and purpose, an action for
unlawful detainer or forcible entry is a real action
and in personam because 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 v. Jensen,
G.R. No. 158407, January 17, 2005)

1. DIFFERENTIATED FROM ACCION PUBLICIANA AND ACCION REIVINDICATORIA

Accion Interdictal Accion Publiciana Accion Reivindicatoria

A summary ejectment
proceeding, which may be either
for forcible entry (detentacion) or
unlawful detainer (desahucio),
for the recovery of physical or
material possession (possession
de facto) where the
dispossession has not lasted for
more than one year, and should
be brought in the proper inferior
court; (Heirs of Cullado v.
Gutierrez, G.R. No. 212938, July
The plenary action to recover the
better right of possession (posse
ssion de jure), which should be
brought in the proper inferior
court or Regional Trial Court
(depending upon the value of the
property) when the dispossessio
n has lasted for more than one y
ear (or for less than a year in
cases other than those
mentioned in Rule 70 of
the Rules of Court); (Heirs of
is an action for recovery of
ownership which must be
brought in the proper inferior
court or Regional Trial Court
(depending upom the value of
the property). (Heirs of Cullado v.
Gutierrez, G.R. No. 212938, July
30, 2019)

430
 30, 2019) Cullado v. Gutierrez, G.R. No.
212938, July 30, 2019)

In an ordinary ejectment suit, the As to accion publiciana, this is an In a reivindicatory suit, where the
certificate of title is never ordinary civil proceeding to Torrens title orcertificate of title
imperiled because the decision of determine the better right of is the basis of the complaint's
the ejectment court on the issue possession of real property cause of action, there is always a
of ownership is merely independently of title. (Heirs of direct attack on the certificate of
provisional (Heirs of Cullado v. Cullado v. Gutierrez, G.R. No. title the moment the defendant
Gutierrez, G.R. No. 212938, July 212938, July 30, 2019) disputes its validity in a
30, 2019) counterclaim or a negative
defense. (Heirs of Cullado v.
Gutierrez, G.R. No. 212938, July
30, 2019)

Metropolitan Trial Courts, RTC, MTC, MTCCs, MCTC, MeTC based on its assessed value (B.P.
Municipal Trial Courts, and 129 as amended by R.A. No. 11576)
Municipal Circuit Trial Courts shall
exercise exclusive original RTC
jurisdiction over cases of forcible EXCEEDS P400,000 (Sec. 19[2], B.P. 129 as amended by R.A. No.
entry and unlawful detainer: 11576)
Provided, That when, in such
cases, the defendant raises the MTC - DOES NOT EXCEED P400,000 (Sec. 33[3], B.P. 129 as
question of ownership in his amended by R.A. No. 11576)
pleadings and the question of
possession cannot be resolved
without deciding the issue of
ownership, the issue of
ownership shall be resolved only
to determine the issue of
possession. (Sec. 33[2], B.P.
129)

Who May Institute the Action and When; deprived of the against whom the
Against Whom the Action May be possession of any possession of any land
Maintained land or building by or building is unlawfully
force, intimidation, withheld after the
threat, strategy, or expiration or
The action for forcible entry or unlawful detainer
stealth termination of the right
may be filed by: to hold possession, by
virtue of any contract,
Forcible Entry Unlawful Detainer express or implied or,
A person (natural • A lessor, vendor, • The legal
or juridical) vendee, or other person representatives or

431
 assigns of any such
lessor, vendor, vendee,
or other person
(Rule 70, Sec. 1)
Period to File
The action may be filed in the proper MTC at any
time within one (1) year after such unlawful
deprivation or withholding of possession (Rule 70,
Sec. 1).
An action for forcible entry must be filed within
one year from the date of actual entry on the
land. However, when the entry was done through
stealth, the one-year time bar is reckoned from
the time the entry was discovered. In contrast to
unlawful detainer suits, no previous demand to
vacate is required before an action for forcible
entry may be filed (Philippine Long Distance
Telephone Company vs. Citi Appliance, G.R. No.
214546, October 9, 2019).
Against whom is the action made
Against the person or persons unlawfully
withholding or depriving possession, or any
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Rule 70, Sec. 1).
Issues that can be raised
In ejectment suits, the only issue for resolution is
the physical or material possession of the
property involved, independent of any claim of
ownership by any of the party litigants. However,
in cases where defendant raises the question of
ownership in the pleadings and the question of
possession cannot be resolved without deciding
the issue of ownership, the court may proceed
and resolve the issue of ownership but only for
the purpose of determining the issue of
possession. Nevertheless, the disposition of the
issue of ownership is not final, as it may be the
subject of separate proceeding[s] specifically
brought to settle the issue. (Santos v. National
Statistics Office, G.R. No. 171129, April 6, 2011)
Note: We reiterate that a boundary dispute
cannot be settled summarily through the action
for forcible entry covered by Rule 70 of the Rules
of Court. In forcible entry, the possession of the
defendant is illegal from the very beginning, and
the issue centers on which between the plaintiff
and the defendant had the prior possession de
facto. If the petitioner had possession of the
disputed areas by virtue of the same being
covered by the metes and bounds stated and
defined in her Torrens titles, then she might not
be validly dispossessed thereof through the
action for forcible entry. The dispute should be
properly threshed out only through accion
reivindicatoria. (Martinez v. Heirs of Lim, G.R. No.
234655, September 11, 2019)
Requirement before filing an action against
the lessee
Unless otherwise stipulated, such action by the
lessor against the lessee shall be commenced
only after complying with the following
requirements:
(1) demand to pay; or
(2) comply with the conditions of the lease and
to vacate is made upon the lessee, or
(3) by serving written notice of such demand
upon the person found on the premises; or
(4) by posting such notice on the premises if no
person be found thereon, and the lessee fails
to comply therewith after fifteen (15) days in
the case of land or five (5) days in the case
of buildings.
432
When the right to commence action for crucial. A demand is to pay rents. The
unlawful detainer arises a pre-requisite to an cause of action which
action for unlawful would give rise to an
detainer, when the ejectment case would
General Rule Exception
action is based on be the expiration of
When the lessee fails Unless otherwise
“failure to pay rent the lease. Thus, the
to comply with the stipulated.
due or to comply with requirement under
demand after fifteen
the conditions of his Rule 70, Sec. 2 of a
(15) days in the case
lease,” but not where prior "demand to pay
of land or five (5)
the action is to or comply with the
days in the case of
terminate the lease conditions of the
buildings.
because of the lease and to vacate"
(Rule 70, Sec. 2)
expiration of its would be
term||| (Lanuza v. unnecessary.
When Demand is Necessary Muñoz, G.R. No. (Cruz v. Spouses
147372, May 27, Christensen, G.R. No.
In forcible entry, a demand to vacate is NOT 2004) 205539, October 4,
required before the filing of the action because 2017)
the occupancy is illegal from the very beginning.
Note: The term VACATE need not be stated if
In unlawful detainer, as a rule, demand to there are other terms definitively implying that
vacate is necessary. the tenant should vacate (Golden Gate Realty
Corp. vs. CA, G.R. No. 74289, July 31, 1987).
Exception: Demand, however, shall NOT be However, this will not apply in case the term of
required in unlawful detainers when: the demand is ambiguous (La Campana vs. CA,
(a) There is a stipulation dispensing with a GR No. L-88246, June 4, 1993).
demand (Art. 1169, NCC); or,
(b) When the ground for the suit is based on the Pleadings Allowed
expiration of the lease.
The only pleadings allowed to be filed are as
Necessary Not Necessary follows:
The rule is applicable The jurisdictional (1) complaint,
only where there is a requirement of prior
(2) compulsory counterclaim;
lessor-lessee demand is
(3) crossclaim pleaded in the answer; and
relationship under a unnecessary if the
lease contract. action is premised on (4) the answers thereto.
Further, the rule the termination of
applies only in lease due to All pleadings shall be verified (Rule 70, Sec. 4).
instances where the expiration of the
grounds relied upon terms of contract. Action of the Court on the Complaint
for ejectment are The complaint must
non-payment of be brought on the
rentals or violation of allegation that the The court may, from an examination of the
the conditions of the lease has expired and allegations in the complaint and such evidence as
lease, as the case the lessor demanded may be attached thereto:
may be. In those the lessee to vacate, (1) Dismiss the case outright on any of the
cited situations, not on the allegation grounds for the dismissal of a civil action
notice to vacate is that the lessee failed which are apparent therein; or,

433
(2) If no ground for dismissal is found, it shall
forthwith issue summons (Rule 70, Sec. 5).
Remedy of the defendant upon receipt of
the summons; answer to the complaint
No postponement of the preliminary conference
shall be granted except for highly meritorious
grounds and without prejudice to such sanctions
as the court in the exercise of sound discretion
may impose on the movant. (ibid.)

Within ten (10) days from service of summons,

the defendant shall file his answer to the
complaint and serve a copy thereof on the Effect of Failure to Appear on the
plaintiff. Affirmative and negative defenses not preliminary conference
pleaded therein shall be deemed waived, except
lack of jurisdiction over the subject matter. Cross- Plaintiff Defendant
claims and compulsory counterclaims not The failure of the If a sole defendant
asserted in the answer shall be considered plaintiff to appear in shall fail to appear:
barred. The answer to counterclaims or cross- the preliminary (1) the plaintiff shall
conference shall be likewise be entitled
claims shall be served and filed within ten (10)
cause for: to judgment in
days from service of the answer in which they are (1) the dismissal of his accordance with
pleaded (Rule 70, Sec. 6). complaint; the next preceding
(2) The defendant section;
Actions of the Court in case of failure to file an who appears in (2) This procedure
answer: the absence of the shall not apply
plaintiff shall be where one of two
entitled to or more
Should the defendant fail to answer the complaint
judgment on his defendants sued
within the period above provided, the court, counterclaim in under a common
(1) Motu proprio or on motion of the plaintiff, accordance with cause of action
shall render judgment as may be warranted the next preceding defense shall
by the facts alleged in the complaint and section. appear at the
limited to what is prayed for therein. (3) All cross-claims preliminary
shall be dismissed. conference.
(2) The court may in its discretion reduce the
amount of damages and attorney's fees
(ibid.)
claimed for being excessive or otherwise
unconscionable, without prejudice to the
Record of Preliminary Conference
applicability of section 3 (c), Rule 9 if there
are two or more defendants. (Rule 70, Sec.
Within five (5) days after the preliminary
7). conference has been terminated, the court shall
issue an order stating the matters taken up
Preliminary Conference
therein, including but not limited to:
(1) Whether the parties have arrived at an
A preliminary conference shall be conducted not
amicable settlement, and if so, the terms
later than 30 days after the last answer is filed.
thereof;
(Rule 70, Sec. 8). (2) The stipulations or admissions entered into
by the parties;

434
(3) Whether, on the basis of the pleadings and
the stipulations and admission made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
thirty (30) days from issuance of the order;
(4) A clear specification of material facts which
remain converted; and
(5) Such other matters intended to expedite the
disposition of the case. (Rule 70, Sec. 9).
Duty of the parties after receipt of the order
of the court
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)
The failure of one party to submit his position
paper does not bar at all the MTC from issuing a
judgment on the ejectment complaint. (Teraña v.
De Sagun, G.R. No. 152131, April 29, 2009)
4. Rendition of Judgment
The court shall render judgment after receipt of
the position paper and affidavits of the parties:
(a) Within thirty (30) days from receipt of the
affidavits and position papers, or
(b) the expiration of the period for filing the
same, the court shall render judgment.
As the court deems necessary, during said period,
there may be a clarificatory hearing. 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).
Effect in case of non-compliance with
referral of conciliation
Cases requiring referral for conciliation, where
there is no showing of compliance with such
requirement, shall be:
(a) dismissed without prejudice, and
(b) may be revived only after that requirement
shall have been complied with. (Rule 70,
Sec. 12).
Prohibited Pleadings and Motions
The following petitions, motions, or pleadings
shall not be allowed:
(1) Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
section 12;
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file
pleadings, affidavits or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints;
(12) Interventions. (Rule 70, Sec. 13).
Contents of the affidavit to be filed by the
parties
The affidavits required to be submitted under this
Rule shall state:
(a) only facts of direct personal knowledge of
the affiants which are admissible in
evidence, and
435
(b) shall show their competence to testify to the
matters stated therein.
A violation of this requirement may:
(a) subject the party or the counsel who submits
the same to disciplinary action, and
(b) shall be cause to expunge the inadmissible
affidavit or portion thereof from the record.
(Rule 70, Sec. 14).
Availability of preliminary injunction in
ejectment cases.
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof,
to prevent the defendant from committing further
acts of dispossession against the plaintiff.
A possessor deprived of his possession through
forcible from the filing of the complaint, present
a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him
in his possession. The court shall decide the
motion within thirty (30) days from the filing
thereof. (Rule 70, Sec. 15).
Resolving defense of ownership
The sole issue in ejectment cases is physical or
material possession of the subject property,
independent of any claim of ownership by the
parties." Section 16, Rule 70 of the Rules of Court
provides the exception to the rule in that the issue
of ownership shall be resolved in deciding the
issue of possession if the question of possession
is intertwined with the issue of ownership. In the
related ejectment case, the parties were allowed
to prove how they came into possession of the
property. (Tiña v. Sta. Clara Estate, Inc., G.R. No.
239979, February 17, 2020, J. Hernando)
Resolving defense of ownership
As a rule, "possession" in forcible entry cases
refers to prior physical possession or
possession de facto, not possession de jure or
that arising from ownership. Title is not an
issue. As an exception, Section 16, Rule 70 of
the Rules of Court provides that the issue of
ownership shall be resolved in deciding the
issue of possession if the question of
possession is intertwined with the issue of
ownership. Thus, based on the foregoing, the
issue of ownership of the property in forcible
entry cases may be provisionally determined —
to determine the issue of possession and only
if the question of possession cannot be resolved
without deciding the issue of ownership.
In addition, We have likewise consistently held
that "possession can be acquired not only by
material occupation, but also by the fact that a
thing is subject to the action of one's will or by
the proper acts and legal formalities established
for acquiring such right." (Palajos v. Abad, G.R.
No. 205832, March 7, 2022, J. Hernando)
Nature of Judgment
The judgment rendered shall be conclusive only
with respect to possession and shall not bind the
title or affect ownership of the land or building
(Sec. 18, Rule 70).
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;
436
(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,
(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).
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, Civil
Procedure Vol. II, 2016 Ed., p. 364).
J. CONTEMPT (RULE 71)
Contempt is the disobedience to the court by
acting in opposition to its authority, justice, and
dignity (Regalado vs. Go, GR No. 167988,
February 6, 2007).
Contempt of court is defined as a disobedience
to the court by acting in opposition to its
authority, justice, and dignity. It signifies not only
a willful disregard or disobedience of the court's
order, but such conduct which tends to bring the
authority of the court and the administration of
law into disrepute or, in some manner, to impede
the due administration of justice. It is a defiance
of the authority, justice, or dignity of the court
which tends to bring the authority and
administration of the law into disrespect or to
interfere with or prejudice party-litigants or their
witnesses during litigation. (Harbour Centre Port
Terminal, Inc. v. La Filipina Uygongco Corp., G.R.
Nos. 240984 & 241120, September 27, 2021, J.
Hernando)
The power to punish for contempt of court is
exercised on the preservative and not on the
vindictive principle, and only occasionally should
a court invoke its inherent power in order to
retain that respect without which the
administration of justice must falter or fail. As
judges[,] we ought to exercise our power to
punish contempt judiciously and sparingly, with
utmost restraint, and with the end in view of
437
utilizing the power for the correction and
preservation of the dignity of the Court, not for
retaliation or vindictiveness (Causing vs. Judge
dela Rosa, OCA IPI No. 17-4663-RTJ, March 7,
2018).
Purpose and nature of power
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
Kinds of Contempt
According to Nature
Due to this two-fold aspect of the exercise of the power to punish them, contempts are classified as civil
or criminal.
Civil contempt
A civil contempt is the failure to do something
ordered to be done by a court or a judge for the
benefit of the opposing party therein
Where the punishment is by fine directed to be
paid to a party in the nature of damages for the
wrong inflicted, or by imprisonment as a coercive
measure to enforce the performance of some act
for the benefit of the party or in aid of the final
judgment or decree rendered in his behalf, the
contempt judgment will, if made before final
decree, be treated as in the nature of an
interlocutory order, or, if made after final decree,
as remedial in nature, and may be reviewed only
on appeal from the final decree, or in such other
mode as is appropriate to the review of
judgments in civil cases.
Civil contempt proceedings are generally held to
be remedial and civil in their nature; that is, they
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 personal, because that
power is intended as a safeguard, not for judges
as persons, but for the functions they exercise
(Rodriguez vs. Bonifacio, A.M. No. RTJ-99-1510,
November 6, 2000).
Criminal contempt
A criminal contempt, is conduct directed against
the authority and dignity of a court or of a judge,
as in unlawfully assailing or discrediting the
authority or dignity of the court or judge, or in
doing a duly forbidden act
Where the punishment imposed, whether against
a party to a suit or a stranger, is wholly or
primarily to protect or vindicate the dignity and
power of the court, either by fine payable to the
government or by imprisonment, or both, it is
deemed a judgment in a criminal case.
Criminal contempt proceedings are generally held
to be in the nature of criminal or quasi-criminal
438
 are proceedings for the enforcement of some actions. They are punitive in nature, and the
duty, and essentially a remedy for coercing a Government, the courts, and the people are
person to do the thing required. interested in their prosecution.
civil contempt proceedings should be instituted by criminal contempt proceedings, it is generally held
an aggrieved party, or his successor, or someone that the State is the real prosecutor
who has a pecuniary interest in the right to be
protected.
n proceedings for civil contempt, there is no In proceedings for criminal contempt, the
presumption, although the burden of proof is on defendant is presumed innocent and the burden is
the complainant, and while the proof need not be on the prosecution to prove the charges beyond
beyond reasonable doubt, it must amount to reasonable doubt.
more than a mere preponderance of evidence. It
has been said that the burden of proof in a
civil contempt proceeding lies somewhere
between the criminal "reasonable doubt" burden
and the civil "fair preponderance" burden.
(Harbour Centre Port Terminal, Inc. v. La Filipina Uygongco Corp., G.R. Nos. 240984 & 241120, September
27, 2021, J. Hernando)

The question of whether the contempt committed is civil or criminal, does not affect the jurisdiction or the
power of a Court to punish the same. (Harbour Centre Port Terminal, Inc. v. La Filipina Uygongco Corp.,
G.R. Nos. 240984 & 241120, September 27, 2021, J. Hernando)

As to Manner of Commission:

There are two (2) types of contempt of court: (i) direct contempt and (ii) indirect contempt.

DIRECT INDIRECT

Direct contempt consists of misbehavior in the
presence of or so near a court as to obstruct or
interrupt the proceedings before it.
It includes:
(a) Misbehavior in the presence of or so near a
court as to obstruct or interrupt the
proceedings; (Rule 71, Sec. 1)
(b) disrespect to the court,
(c) offensive behavior against others,
(d) refusal, despite being lawfully required, to
be sworn in or to answer as a witness, or to
subscribe an affidavit or deposition.
Indirect contempt is committed through any of the
acts enumerated under Section 3, Rule 71
It includes:
(a) Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
the act of a person who, after being
dispossessed or ejected from any real property
by the judgment or process of any court of
competent jurisdiction, enters or attempts or
induces another to enter into or upon such real
property, for the purpose of executing acts of
ownership or possession, or in any manner

439
It can be punished summarily without a hearing.
(Palad v. Patajo-Kapunan, A.C. No. 9923, October
9, 2019)
Pleadings containing derogatory, offensive or
malicious statements when submitted before a (d)
court or judge in which the proceedings are
pending is direct contempt (Dantes vs. Caguioa,
A.M. NO. RTJ-05-1919, June 27, 2005). (e)
In general, committed in the presence of or so
near the court or judge as to obstruct or interrupt
the proceedings before it (M. De Leon, Remedial
Law Reviewer-Primer, 2021, p. 428)
Can be punished summarily without hearing
(Encinas v. National Bookstore Inc., G.R. No.
162704 (Resolution), July 28, 2005)
A person may be summarily adjudged in (1) If the respondent is adjudged guilty of indirect
contempt by such court and punished by:
(a) a fine not exceeding two thousand pesos
(P2,000.00)
(b) or imprisonment not exceeding ten (10)
days, or both,
(c) if it be a Regional Trial Court or a court of (2) If he is adjudged guilty of contempt committed
equivalent or higher rank, or by a fine not
exceeding two hundred pesos (P2,000.00)
or imprisonment not exceeding one (1) day,
or both, if it be a lower court.
disturbs the possession given to the person
adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt under Sec. 1 of this
Rule;
Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
Assuming to be an attorney or an officer of a
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him.
(Palad v. Patajo-Kapunan, A.C. No. 9923,
[October 9, 2019])
It is not committed in the presence of the court, but
done at a distance which tends to belittle, degrade,
obstruct or embarrass the court and justice (M. De
Leon, Remedial Law Reviewer-Primer, 2021, p. 428)
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).
contempt committed against a Regional Trial
Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty
thousand pesos (P30,000.00) or imprisonment
not exceeding six (6) months, or both.
against a lower court, he may be punished by a
fine not exceeding five thousand pesos
(P5,000.00) or imprisonment not exceeding one
(1) month, or both.
(3) If the contempt consists in the violation of a writ
of injunction, temporary restraining order
440

Remedy:
(1) Certiorari or prohibition directed against the
court which adjudged him in direct contempt
(2) The execution of the judgment shall be
suspended pending resolution of the petition,
provided such person files a bond and
conditioned that he will abide by and perform the
judgment should the petition be decided against
him (Sec. 2, Rule 71)
or status quo order, he may also be ordered to
make complete restitution to the party injured by
such violation of the property involved or such
amount as may be alleged and proved (Rule 71,
Sec. 7)
(4) 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. (Rule 77,
Sec. 12)
Remedy:
(1) The person adjudged for indirect contempt may
appeal such judgment or final order to the proper
court as in criminal cases.
(2) The execution of the judgment shall NOT be
suspended until a bond is filed by the person
adjudged in contempt.
441
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.
How Contempt Proceedings are Commenced
Procedural requisites before the accused
may be punished for indirect contempt:
1. A charge in writing to be filed;
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 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 Exception
The petition for The court, however,
contempt shall allege in the exercise of its
such fact but the discretion, may order
petition shall be the consolidation of
docketed, heard and the contempt charge
decided separately and the principal
from the principal action for joint
action. hearing and decision
(Rule 71, Sec. 4).
When imprisonment shall be imposed
Rule 71, Sec. 8. Imprisonment until order obeyed.
When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it. (M. De Leon, Remedial Law Reviewer-Primer,
2021, p. 435)
Note: This means that the penalty of imprisonment
may exceed six months. (ibid.)
The dismissal of the indirect contempt charge
amounts to an acquittal, which effectively bars a
second prosecution. Contempt is not a criminal
offense. However, a charge for contempt of court
partakes of the nature of a criminal action. Rules
that govern criminal prosecutions strictly apply to
442
a prosecution for contempt. In fact, Section 11 of Nature of Special Proceedings
Rule 71 of the Rules of Court provides that the
appeal in indirect contempt proceedings may be General Rule Exception
taken as in criminal cases. This Court has held that Special Proceeding But it may become
an alleged contemner should be accorded the is non-adversarial adversarial in the course
same rights as that of an accused. Thus, the in nature when of the proceedings when
initiated until the there are oppositors to
dismissal of the indirect contempt charge against
case is concluded. the petition
respondent amounts to an acquittal, which Since generally,
effectively bars a second prosecution (Digital there is no definite
Telecommunications Philippines, Inc. vs. Cantos, adverse party
G.R. No. 180200, November 25, 2013; M. De Leon, because it is
Remedial Law Reviewer-Primer, 2021, p. 435). directed against
the whole world.
Most special
It is only the judge who orders the confinement of
proceedings are in
a person for contempt of court who could issue the rem.
Order of Release (Inoturan vs. Limsiaco Jr., A.M. (M. De Leon, Remedial Law Reviewer-Primer,
No. MTJ-01-1362, May 06, 2005). 2021 Edition, p. 437)

Contempt Against Quasi-Judicial Entities It is true that in special proceedings, formal

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).
VI. SPECIAL PROCEEDINGS AND SPECIAL
WRITS
Special Proceedings
Remedy by which a party seeks to establish a
status, a right, or a particular fact. (Rule 1, Sec.
3[c], ROC)
pleadings and a hearing may be dispensed with,
and the remedy is granted upon mere application
or motion. However, a special proceeding is not
always summary. The procedure laid down in Rule
108 is not a summary proceeding per se.
It requires:
(a) publication of the petition;
(b) it mandates the inclusion as parties of all
persons who may claim interest which would
be affected by the cancellation or correction;
(c) it also requires the civil registrar and any
person in interest to file their opposition, if
any; and
(d) it states that although the court may make
orders expediting the proceedings, it is after
hearing that the court shall either dismiss the
petition or issue an order granting the same.

Thus, any proceeding other than those
enumerated under the Rules of Court, which has
for its object the establishment of a status, a right
or a particular fact, may be considered a special
proceeding.
Thus, as long as the procedural requirements in
Rule 108 are followed, it is the appropriate
adversary proceeding to effect substantial
corrections and changes in entries of the civil
register. (Ordoña v. Local Civil Registrar of Pasig
City, G.R. No. 215370, November 9, 2021, citing
Republic vs. Olaybar, G.R. No. 189538, February
10, 2014)

443

Rules in civil actions applicable to special
proceedings
Special proceedings are primarily governed by the
special provisions applicable to them. In the
absence of special provisions, the rules provided
for in ordinary actions shall be, as far as
practicable, applicable in special proceedings.
(Rule 72, Sec. 2, ROC)
A. SETTLEMENT OF ESTATE OF DECEASED
PERSONS
Substantive Basis
The rights to succession are transmitted from the
moment of death of of the decedent. (Art. 777,
Civil Code).
Before the actual transmission of the rights, the
procedural guidelines set forth in Rules 73-90 must
be complied with. Once complied with, the rights
of the heirs retroact to the time of the death of the
person who estate was settled (De Leon and
Wilwayco, Special Proceedings Essentials for
Bench and Bar, 2020 Edition, p. 8)
Nature of Settlement of Estate
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. (Philippine Savings Bank vs. Lantin,
G. R. No. L-33929. September 2, 1983)
1. VENUE AND PROCESS (RULE 73)
Venue in the Settlement of Estate of a
Decedent
- the place where to file -
If the deceased is a If the deceased
resident of the is a non-resident
Philippines
Whether he is a citizen or The proper court of
an alien, his will shall be any province in
proved, or letters of which he had estate
administration granted, (Rule 73, Sec. 1).
and his estate settled, in
the proper court in the
province in which he
resides at the time of his
death (Rule 73, Sec. 1).
Rule 73, Section 1 provides for the venue of
actions for the settlement of the estate of
deceased persons.
In order to determine the proper venue, in estate
proceedings, one looks into the fact of residency
in the Philippines and not in the fact of citizenship
(De Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, p.11, 2020 ed.).
Citizenship of the decedent is immaterial in
determining the venue where the estate of
decedent is settled.
For purposes of settlement of estate, residence
refers to the actual or physical residence, as
distinguished from legal residence or domicile. In
other words, “resides” should be viewed or
understood in its popular sense; it signifies
physical presence in a place and actual stay
thereat. Venue for ordinary civil actions and that
for special proceedings have one and the same
meaning. As thus defined, "residence," in the
context of venue provisions, means nothing more
than a person’s actual residence or place of abode,
provided he resides therein with continuity and
consistency. (Garcia-Quiazon vs. Belen, GR No.
189121, July 31, 2013)
In this popular sense, the term means merely
residence, that is, personal residence, not legal
residence or domicile. Residence simply requires
bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that
444
place and also an intention to make it one’s
domicile. No particular length of time of residence
is required though. However, the residence must
be more than temporary. (San Luis vs. San Luis, Jurisdiction of Courts in the Settlement of
G.R. No. 133743, February 6, 2007) Estate of a Decedent

Question of residence; when determinative
The question of residence is determinative only of
the venue and does not affect the jurisdiction 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)
It is well settled that "domicile is not commonly
changed by presence in a place merely for one's
own health," even if coupled with knowledge that
one will never again be able, on account of illness
to return home. (In re Eusebio v. Eusebio, G.R. No.
L-8409, December 28, 1956)
When Venue may be Assailed
General Rule: Exception:
The jurisdiction of Venue may be assailed
the court, so far as only
it depends on the (1) Upon appeal from
residence of the the court in the
decedent or original case; or
location of the (2) When want of
estate, shall not be jurisdiction appears
contested in a suit on the record, that is,
or proceeding if upon plain reading
(Rule 73, Sec. 1). of the records of the
case it will
immediately show
that the venue was
improperly laid
(Consolidated Bank
and Trust Corp. v.
Intermediate; De
Leon and Wilwayco,
Special Proceedings
Essentials for Bench
and Bar, p.12, 2020
ed.)
It depends on the gross value of the estate of the
decedent:
Which court to file
(Pursuant to B.P. Blg. 129, As Amended by
R.A. No. 7691, As Further Amended By R.A.
No. 11576)
MeTC, MTCC, RTC
MTC and MCTC
Where the gross value Where the gross
of the estate does not value of the estate
exceed Php 2,000,000 exceeds Php
2,000,000.
The values indicated in MTC’s jurisdiction are
exclusive of:
(a) interest
(b) damages of whatever kind
(c) attorney's fees
(d) litigation expenses
(e) costs
Note: The amount of the above items must be
specifically alleged. They shall also be included in
the determination of the filing fees. (Sec. 33[1],
B.P. Blg. 129, as amended by Sec. 3, R.A. No.
7691). Thus, it is not the actual gross value of the
estate which is the basis of jurisdiction but the
alleged gross value of the estate in the petition.
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 the claims in all
the causes of action, irrespective of whether the
causes of action arose out of the same or different
transactions. (Sec. 33[1], B.P. Blg. 129, as
amended by Sec. 3, R.A. No. 7691)

445
 and/or settlement of jurisdiction by the
Exclusionary Rule/Principle of Preferential the estate of deceased probate court and the
Jurisdiction persons, but does not rights of third parties
extend to the are not impaired, the
determination of probate court is
The court first taking cognizance of the settlement
questions of competent to decide
of the estate of a decedent, shall exercise ownership that arise the question of
jurisdiction to the exclusion of all other courts during the ownership (Agtarap v.
(Rule 73, Sec. 1). While the Rule speaks of proceedings. The Agtarap, G.R. Nos.
jurisdiction, what it actually refers to is venue patent rationale for 177099 and 177192,
(Riguera, Primer-Reviewer on Remedial Law, Vol. this rule is that such June 8, 2011; Cora v.
court merely exercises Vda. De Pangilinan,
2, Special Proceedings, Criminal Procedure, and
special and limited G.R. Nos. L-27082 and
Evidence, p. 14, 2020 ed.). jurisdiction. (Guia v. L-29545 (1978))
Cosico, Jr., G.R. No.
Preference is given in favor of the court where the 246997, (May 5, 2021)
estate proceedings, as compared to intestate
proceedings, are held (Rule 73, Sec. 1). The The main function of settlement of estate
probate of the will is mandatory. It is anomalous proceedings is to settle and liquidate the estate of
that the estate of a person who deceased persons. (David v. Calilung, G.R. No.
died testate should be settled in an intestate 241036, January 26, 2021)
proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and Exclusive, Special, and Limited Jurisdiction
the judge assigned to the testate proceeding
should continue hearing the two cases (Roberts General Rule:
vs. Leonidas, G.R. No. 55509, April 27, 1984). It must be emphasized that the trial court, sitting
as a probate court, has limited and special
The Court, in citing the case of Coca vs. Borromeo jurisdiction, and cannot hear and dispose of
held that the question of whether a particular collateral matters and issues which may be
matter should be resolved by the CFI in the properly threshed out only in an ordinary civil
exercise of its general jurisdiction or of its limited action (Vda. De Manalo vs. CA, G.R. No. 129242,
probate jurisdiction is in reality not a jurisdictional January 16, 2001).
question. In essence, it is a procedural question
involving a mode of practice "which may be Once a special proceeding for the settlement of
waived." (Romero vs. CA, G.R. No. 188921, April the estate of a decedent is filed in one of such
18, 2012). courts, that court has exclusive jurisdiction over
said estate and no other special proceedings
Extent of jurisdiction of probate court involving the same subject matter may be filed
before any other court (Romero vs. CA, G.R. No.
General Rule Exception 188921, April 18, 2012).
the jurisdiction of the If the interested
trial court, either as a parties are all heirs, or It is primarily concerned with the administration,
probate court or the question is one of liquidation and distribution of the estate (Union
an intestate court, collation or
Bank of the Philippines vs. Ariola, G.R. No. 149926,
relates only to matters advancement, or the
having to do with the parties consent to the February 23, 2005).
probate of the will assumption of

446
Exception:
Justified by expediency and convenience, the
jurisdiction of the probate court extends to matters
incidental or collateral to the settlement and
distribution of the estate (Agtarap vs. Agtarap,
G.R. No. 177099, June 8, 2011).
(1) Questions of Heirship
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
(Agtarap vs. Agtarap, G.R. No. 177099, June 8,
2011).
Hence, the rule that a probate court’s
determination of ownership over properties which
may form part of the estate is not final or ultimate
in nature, is applicable only as between the
representatives of the estate and strangers
thereto (Romero vs. CA, G.R. No. 188921, April 18,
2012).
(2) Questions of Ownership
General Rule:
The probate court, whether in a testate or
intestate proceeding, can only pass upon
questions of title provisionally. The reason is that
the probate court’s limited jurisdiction and the
principle that questions of title or ownership,
which result in exclusion or inclusion from the
inventory of the property, can only be settled in a
separate action (Aranas vs. Mercado, G.R. No.
156407, January 15, 2014, citing De Leon vs. CA,
G.R. No. 128781, August 6, 2002).
Exception:
If the interested parties are all heirs, 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, the pobate court is competent to
decide on question of ownership (Agtarap vs.
Agtarap, G.R. No. 177099, June 8, 2011).
Powers and Duties of the 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 (Rule 90);
(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 (Rule 86, Sec. 11);
(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
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)
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);
447
 (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)
(4) The validity of a waiver of hereditary rights
(Borromeo-Herrera vs. Borromeo, et al., L-
41171, July 23, 1987, deciding 3 other cases
therein);
(5) Its jurisdiction extends to matters incidental
or collateral to the settlement; and
(6) 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. (Regalado, Remedial Law
Compendium Vol. II, 2008 Edition, p. 13)
An adoption decree cannot be assailed
collaterally in settlement proceedings (Santos vs.
Aranzanso G.R. No. L-26940, August 21, 1982).
Venue of Settlement of Estate in Case of
Dissolution of Marriage
If either of the The community property shall
spouses died be inventoried, administered,
and liquidated, and the debts
thereof paid, in the testate or
intestate proceedings of the
deceased spouse (Rule 73,
Sec. 2).
A creditor cannot directly sue
the surviving spouse of a
deceased-debtor in an
ordinary proceeding for
collection of sum of money.
The remedy is to file a claim
in the proceeding for the
settlement of the estate or, if
none has been commenced,
he can file a petition either for
the issuance of letters of
administration or for the
allowance of will, depending
on whether petitioner's
husband died intestate or
testate (Alipio vs. CA, G.R.
No. 134100, September 29,
2000).
If both spouses The conjugal partnership shall
died be liquidated in the testate or
intestate proceedings of
either (Rule 73, Sec. 2).
Presumption of Death
(1) For purposes of settlement of his estate, a
person shall be presumed dead if absent and
unheard from for the periods fixed in the Civil
Code (Rule 73, Sec. 4).
Judicial declaration of presumptive death
For 2 years
purposes
of
remarriage
For The absentee shall not be
purposes presumed dead for the purpose
of opening of opening his succession:
the estate
Ordinary Presumption of death
• 10 years (Art. 390, NCC)
• 5 years above/after 75 years
old (Art. 390, NCC)
Extra Ordinary Presumption of
death
• 4 years (Art. 391, NCC)
For 10-5-4 years - Civil Code
provides for the order of
intestate succession as follows:
1. Descending Direct line
2. Ascending Direct Line
3. Illegitimate Children
4. Surviving Spouse
5. Collateral Relatives
6. The State
Escheat After an absence of seven (7)
years, it being unknown whether
or not the absentee still lives, he
shall be presumed dead for all
purposes (Includes Escheat
Proceedings), except for those
of succession. (Art. 391, NCC)
NOTE: THE STATE IS NOT A
SUCCESSOR OF A DECEDENT IN
448
 THE ABSENCE OF LEGAL HEIRS.
The phrase "for all purposes"
necessarily includes escheat
proceedings. Hence, the state
does not have to wait for 10
years since a presumption arises
after the lapse of 7 years that
the absentee is presumed dead
for all purposes other than the
opening the succession and the
State may now institute escheat
proceedings.
(2) Later, if he proves to be alive, he shall be
entitled to the balance of his estate after
payment of all his debts. The balance may be
recovered in the same proceeding (Rule 73,
Sec. 4)
There is no independent action for the declaration
of presumptive death for purposes of succession,
except for purpose of remarriage.
Under the Family Code, a spouse may seek the
declaration of presumptive death of the absentee
spouse for the purpose of remarriage (Family
Code, Art. 41).
In the case of Tadeo Matias vs Republic, the RTC
rendered judgment declaring Wilfredo absent or
presumptively dead under Article 41 of the Family
Code for purposes of claiming financial benefits
due him as a former military officer. But the
decision of the RTC decision was set aside by the
Supreme Court. Firstly, the citation in the decision
of Article 41 of the Family Code is erroneous since
the petitioner's purpose in seeking such
declaration was not for purposes of remarriage but
for purposes of claiming death benefits from the
government. The petition should have been
dismissed outright since in our jurisdiction a
petition whose sole objective is to have a person
declared presumptively dead under Articles 390
and 391 of the Civil Code is not a valid suit and no
court has any authority to take cognizance of the
same. The reason is that since Articles 390 and
391 merely express evidentiary presumptions, an
action brought exclusively to declare a person
presumptively dead pursuant thereto presents no
actual controversy that a court may decide. The
SC stressed that the presumptions under Articles
390 and 391 arise by operation of law, without
need of court declaration, once the factual
conditions in said articles are established. (Tadeo-
Matias v. Republic, G.R. No. 230751, April 25,
2018)
2. SUMMARY SETTLEMENT OF ESTATES
(RULE 74)
Meaning of summary of settlement of estate
It is a judicial proceeding wherein, without the
appointment of executor or administrator, and
without delay, the competent court summarily
proceeds to value the estate of the decedent;
ascertain his debts and order payment thereof;
allow his will if any; declare his heirs, devisees, and
legatees; and distribute his net estate among his
known heirs, devisees and legatees, who shall
thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded
to them, respectively. (Rule 74, Sec. 2, ROC;
Asuncion vs. Dela Cruz, G.R. No. L-
7855, November 23, 1955; Albano, Pre-week
Reviewer in Remedial Law, 2019 Edition, p. 319)
General Rule Exception
Estate settlement (1) Extrajudicial
should be judicially settlement by
administered agreement between
through an or among heirs. (Rule
administrator/ 74, Sec. 1)
executor. (2) Summary settlement
of estates of small
value (Rule 74, Sec.
2).
Distinction between Extrajudicial
Settlement and Summary Settlement of
Estates of Small Value
449
 Extrajudicial Summary ii. Petition for Letters of Administration
Settlement Settlement with the will annexed (if no executor is
No court intervention Judicial adjudication is named in the will)
necessary although
Extra-judicial Settlement by Agreement
the nature of the
Between Heirs
proceeding is
summary
Modes of Extra-Judicial Settlement of
Value of estate Gross value of the
Estate
immaterial estate must not By (1) Where there are
exceed Php 10,000.00 Agreement several heirs in
Allowed only when Allowed in both of the agreement
there is no will testate and intestate Parties
succession The parties may, without
securing letters of
There must be no Available even if there
administration, divide the
outstanding debts at are debts estate among themselves
the time of the as they see fit by means of
settlement of the a public instrument filed in
estate the office of the register of
Resorted to at the May be instituted by deeds.
instance of and by any interested party,
Requisites
agreement of all heirs even a creditor of the
(a) Decedent left
estate without the i. no will;
consent of all the heirs ii. no debts;
Amount of bond is Amount of bond is to (b) Heirs are all of age, or
equivalent to the be determined by the the minors are
value of the personal court represented by their
judicial or legal
property
representatives duly
(De Leon and Wilwayco, Special Proceedings authorized for such
Essentials for Bench and Bar, 2020 Edition, p. 41) purpose;
(c) Settlement is made in
Modes of Settlement of Estate a public instrument;
(d) Filed with the proper
Register of Deeds
(1) Extra-judicial Settlement
(e) Fact of extra-judicial
(a) By agreement of parties (Rule 74, Sec. 1);
settlement published
(b) By self-adjudication (Rule 74, Sec. 1);
in a newspaper of
general circulation
(2) Judicial Settlement once a week for 3
(a) Partition (Rule 69); consecutive weeks in
(b) Summary settlement of estate of small the province; and
value (Rule 74, Sec. 2); (f) In case the estate
(c) Petition for Letters of Administration (Rule consists of personal
79); property, filing of a
(d) Probate of a will (Rules 75-79) bond in the amount
i. Petition for Letters Testamentary; or equivalent to the value
of such property.

450

(2) In case of
disagreement by the
heirs
Should they disagree, they
may divide the estate in an
ordinary action of partition
(Rule 74, Sec. 1).
By Self- If there is only one heir, he
Adjudication may adjudicate to himself
the entire estate by means
of an affidavit filed in the
office of the register of
deeds.
Requisites
(a) Decedent left
i. no will;
ii. no debts;
(b) There is only one heir;
(c) Adjudication of the
property should be by
an Affidavit of Self-
adjudication, filed in
the office of the
register of deeds,
instead of settlement
in a public instrument
(Rule 74, Sec. 1).
Requirement of Bond
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).
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).
The object of registration is to serve as
constructive notice, and this means notice to
others. It must follow that the intrinsic 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).
Form of Settlement; Oral partition allowed
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. (Vda. De Reyes vs. CA, G.R.
92436, July 26, 1991)
Affidavit of Self-adjudication by Sole Heir
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, supra).
Void affidavit of self-adjudication
As discussed in the case of Heirs of Lopez vs DBP,
regardless of their agreement, Enrique could only
convey to Marietta his undivided one-fourth share
of the property, and Marietta could only acquire
that share. This is because Marietta obtained her
451
rights from Enrique who, in the first place, had no
title or interest over the rest of the property that
he could convey.
This is despite Enrique's execution of the affidavit
of self-adjudication wherein he declared himself to
be the only surviving heir of Gregoria Lopez. The
affidavit of self-adjudication is invalid for the
simple reason that it was false. At the time of its
execution, Enrique's siblings were still alive and
entitled to the three-fourth undivided share of the
property. The affidavit of self-adjudication did not
have the effect of vesting upon Enrique ownership
or rights to the property.
The issuance of the original certificate of title in
favor of Marietta does not cure Enrique's lack of
title or authority to convey his co-owners' portions
of the property. Issuance of a certificate of title is
not a grant of title over petitioners' undivided
portions of the property. The physical certificate of
title does not vest in a person ownership or right
over a property. It is merely an evidence of such
ownership or right. (Heirs of Gregorio Lopez v.
Development Bank of the Phils., G.R. No. 193551,
November 19, 2014)
Public instrument not necessary for the
validity of an extrajudicial settlement
The irregularity in the notarization is not fatal to
the validity of the Extrajudicial Settlement. For
even the absence of such formality would not
necessarily invalidate the transaction embodied in
the document, the defect merely renders the
written contract a private instrument rather than a
public one.
While Art. 1358 of the New Civil Code seemingly
requires that contracts transmitting or
extinguishing real rights over immovable property
should be in a public document, hornbook doctrine
is that the embodiment of certain contracts in a
public instrument is only for convenience. It is
established in jurisprudence that non-observance
of the prescribed formalities does not necessarily
excuse the contracting parties from complying
with their respective obligations under their
covenant, and merely grants them the right to
compel each other to execute the proper deed.
(Spouses Pontigon v. Heirs of Sanchez, G.R. No.
221513, December 5, 2016)
Decedent Left No Debts, When Presumed
It shall be presumed that the decedent left no
debts if no creditor filed a petition for letters of
administration within 2 years after the death of the
decedent (Rule 74, Sec. 1).
Section 1 of Rule 74 does not preclude the heirs
from instituting administration proceedings, even
if the estate has no debts or obligation, if they do
not desire to resort for good reasons to an ordinary
action of partition. While section 1 allows the heirs
to divide the estate among themselves as they
may see fit, or to resort to an ordinary action of
partition, it does not compel them to do so if they
have good reasons to take a different course of
action. Said section is not mandatory or
compulsory as may be gleaned from the use made
therein of the word may. If the intention were
otherwise the framer of the rule would have
employed the word shall as was done in other
provisions that are mandatory in character. Note
that the word may is used not only once but in the
whole section, which indicates an intention to
leave the matter entirely to the discretion of the
heirs. (Vda. de Rodriguez v. Tan, G.R. No. L-6044,
November 24, 1952)
Good reason
While Section 1 of Rule 74 allows the heirs to
divide the estate among themselves as they may
see fit, or to resort to an ordinary action for
partition, the said provision does not compel them
to do so if they have good reasons to take a
452
different course of action. It should be noted that
recourse to an administration proceeding even if
the estate has no debts is sanctioned only if the
heirs have good reasons for not resorting to an
action for partition. Where partition is possible,
either in or out of court, the estate should not be
burdened with an administration proceeding
without good and compelling reasons.
Thus, it has been repeatedly held that when a
person dies without leaving pending obligations to
be paid, his heirs, whether of age or not, are not
bound to submit the property to a judicial
administration, which is always long and costly, or
to apply for the appointment of an administrator
by the Court. It has been uniformly held that in
such case the judicial administration and the
appointment of an administrator are superfluous
and unnecessary proceedings. (Spouses Villafria v.
Plazo, G.R. No. 187524 , August 5, 2015)
other notice to interested persons as the
court may direct;
(3) Hearing which shall be held not less than 1
month nor more than 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. (Rule 74, Sec. 2).
Remedies of aggrieved parties after
extrajudicial settlement of estate
(1) Compel settlement of the claim and execute
against the bond or real estate
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.

Judicial Summary Settlement of Estates of

A lien shall be constituted on the real property of
Small Value
the estate and together with the bond, it shall be
liable to creditors, heirs or other persons for a full
Summary settlement of estates of small value is a
period of 2 years after such distribution.
judicial proceeding wherein, without the
appointment of executor or administrator, and
Such lien will not be cancelled before the lapse of
without delay, the competent court summarily
two years even if a distributee offers to post bond
proceeds to value the estate of the decedent;
to answer for contingent claims (Rebong vs.
ascertain his debts and order payment thereof;
Ibanez, G.R. No. L-1578, September 30, 1947).
allow his will if any; declare his heirs, devisee and
legatees; and distribute his net estate among his
If upon the lapse of the 2-year period, the person
known heirs, devisees, and legatees, who shall
authorized to file a claim is a minor, mentally
thereupon be entitled to receive and enter into the
incapacitated, is in prison or outside the
possession of the parts of the estate so awarded
Philippines, he may present his claim within 1 year
by them respectively (Rule 74, Sec. 2).
after such disability is removed (Rule 74, Sec. 5).

When is summary settlement of small value

estates allowed
(1) Petition filed by an interested person;
(2) Notice which shall be published once a week
for 3 consecutive weeks in a newspaper of
general circulation in the province and such
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

453
the real estate belonging to the deceased, or both Being an obligation him because the action
(Rule 74, Sec. 4). created by law, it would be in the nature of
prescribes in 10 a suit for quieting of title,
(2) Action for Rescission years (Art. 1144, an action that is
par. 2, NCC). imprescriptible (Uy vs.
Court of Appeals, 173186,
A partition may be rescinded or annulled for the
September 16, 2015).
same causes as contracts (Art. 1097, NCC).
When plaintiff (legal
A partition, judicial or extra-judicial, may also be owner) is in possession of
rescinded on account of lesion, when any one of the land to be reconveyed
the co-heirs received things whose value is less, and not the defendant
registered owner, the
by at least one-fourth, than the share to which he
action based on fraud is
is entitled, considering the value of the things at imprescriptible as long as
the time they were adjudicated (Art. 1098, NCC). the land has not passed to
an innocent purchaser for
(3) The creditor may ask for administration of value (Heirs of Saludares
enough property of the estate sufficient to pay vs. CA, G.R. No. 128254,
the debt, but the heirs cannot prevent such January 16, 2004).
administration by paying the obligation
(McMicking vs. SyConbieng, G.R. No. L-6871, Production and Allowance of Will (Rule 75)
January 15, 1912).
Article 783 of the Civil Code of the Philippines
(4) After the lapse of the two–year period, an
defines will as “an act whereby a person is
ordinary action may be instituted against the
permitted, with the formalities prescribed by law,
distributees within the statute of limitations,
but not against the bond. to control to a certain degree the disposition of his
estate, to take effect after his death. (Art. 783,
(5) The action to annul a deed of extrajudicial NCC)
settlement on the ground of fraud should be
filed within four years from the discovery of the Allowance of will is NECESSARY
fraud (Gerona vs. De Guzman, L-19060, May
29, 1964).
No will shall pass either real or personal estate
unless it is proved and allowed in the proper court.
(6) Action for reconveyance
Subject to the right of appeal, such allowance of
General Rule Exception the will shall be conclusive as to its due execution
The prescriptive Action for reconveyance is (Rule 75, Sec. 1)
period for non- imprescriptible if plaintiff
participants is 10 is in possession of the Nature of probate proceeding
years from the property. When the party
date of registration seeking reconveyance (1) It is a proceeding in rem. It cannot be
or from date of based on implied or dispensed with and substituted by another
actual discovery if constructive trust is in proceeding, judicial or extrajudicial, without
registration was actual, continuous and offending public policy.
made in bad faith, peaceful possession of the (2) It is mandatory.
because it is based property involved, (3) It is imprescriptible, because it is required by
on implied prescription does not public policy.
constructive trust. commence to run against

454
(4) Doctrine of Estoppel does not apply. The
State could not have intended to defeat the Persons Persons which may be
same by applying thereto the statute of entitled to notified personally or by
limitation of actions (Fernandez vs. Dimagiba, personal mail
G.R. No. L-23638, 1967). notice
(1) Heirs (1) Heirs
Who may petition for probate; persons (2) Legatees (2) Legatees
entitled to notice (3) Devisees (3) Devisees
(4) Executor
The following are the persons who may petition for (a) Person named as
executor (if he is not
probate under Sec. 1, Rule 76
petitioner)
(b) Person named as co-
(a) Devisee executor not petitioning
(b) Executor
(c) Legatee Notice to designated heirs,
(d) Testator – during his lifetime legatees and devisees is
(e) Any other interested person – heir; creditor jurisdictional when they are
known AND their place of
An "interested person" has been defined as residence are known (De
one who would be benefited by the estate, Arranz vs. Galing, G.R. No.
such as an heir, or one who has a claim against 77047, May 28, 1988).
the estate, such as a creditor. The interest
Notice is required to be
must be material and direct, and not merely
personally given to known
indirect or contingent (San Luis vs. San Luis, heirs, legatees, and devisees of
G.R. No. 133743, February 6, 2007). the testator (Rule 76, Sec. 4).

General Rule Exception Probate Court does not look into Intrinsic
Petition for probate is The will may be Validity; Only Extrinsic Validity is
filed after the admitted to probate Determined
testator’s death. during the testator’s
lifetime.
General The main issue which the court
Rule must determine in a probate
Note: The petition for probate filed during the proceeding is the due execution
testator’s lifetime may only be initiated by the or the extrinsic validity of the
testator himself (Gaspi v. Pacis-Trinidad, G.R. No. will as provided by Section 1,
229010, November 23, 2020) Rule 75 of the Rules of Court.
The probate court cannot
Well-settled is the rule that a probate court has the inquire into the intrinsic validity
of the will or the disposition of
jurisdiction to determine all the properties of the
the estate by the testator.
deceased, to determine whether they should or Thus, due execution is
should not be included in the inventory or list of "whether the testator, being of
properties to be administered. The said court is sound mind, freely executed
primarily concerned with the administration, the will in accordance with the
liquidation and distribution of the estate. (Union formalities prescribed by
Bank of the Philippines vs. Santibañez, G.R. No. law" (Tanchanco v. Santos,
G.R. No. 204793, June 8, 2020,
149926, February 23, 2005)
HERNANDO, J.)

455
 Exception It is not beyond the probate
court's jurisdiction to pass upon
the intrinsic validity of the will
when so warranted by
exceptional circumstances.
(1) When practical
considerations demand
that the intrinsic validity of
the will be passed upon
even before it is probated,
the probate court should
meet the issue. (Morales v.
Olondriz, G.R. No. 198994,
February 3, 2016)
(2) when the defect of the will
is apparent on its face and
the probate of the will may
become a useless
ceremony if it is intrinsically
invalid. (Reyes v. Court of
Appeals, G.R. No. 124099,
October 30, 1997)
3. ALLOWANCE OR DISALLOWANCE OF
WILLS (RULE 76)
When is a petition for probate filed; Who
may file for probate
(1) At any time after the death of the testator – (a) Fact of the testator’s death;
(a) by the executor
(b) by a devisee or legatee named in a will,
who need not be a relative of the
decedent;
(c) by any other person interested in the
estate (Rule 76, Sec. 1)
An interested person is one who would
be benefited by the estate, such as an heir
or a creditor who has a claim against the
estate. 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).
(2) During the lifetime of the Testator – only the
testator himself. (Rule 76, Sec. 1)
• Ordinarily, probate proceedings are
instituted only after the death of the
testator but Article 838 of the Civil Code
authorizes the filing of a petition for probate
of the will filed by the testator himself (De
Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, p.62, 2020
ed.).
How is jurisdiction acquired
The probate court acquires jurisdiction over the
settlement proceedings in two ways:
(1) Delivery of the will to the court; or
(2) Filing of a petition for the allowance of a
will (Sec. 3).
The original copy of the will need not be attached
to the petition for probate. It is sufficient that a
copy thereof is annexed to the petition since the
submission of the original will is not a jurisdictional
requirement (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p.66,
2020 ed.).
Contents of Petition for Allowance of a Will
(1) The jurisdictional facts that must be alleged in
the petition for probate are:
(b) Testator’s residence at the time of his
death;
(c) Place where the testator left the estate, if
he is a non-resident;
(d) That the will has been delivered to the
court and is in the possession thereof,
unless not yet delivered;
(e) Value of the estate
– This is required to determine the
jurisdiction of the court (De Leon and
Wilwayco, Special Proceedings Essentials
for Bench and Bar, p.65, 2020 ed.).
(2) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent;
– This is required because it allows the court
to determine the persons who are entitled to
456
 notice, as well as in the determination of the
manner notice shall be given (De Leon and Mandatory Rule on Notice
Wilwayco, Special Proceedings Essentials for
Bench and Bar, p.65, 2020 ed.). I. In case (1) Notice By Publication
of post- (a) Notice is to be
(3) The probable value and character of the mortem published 3 weeks
property of the estate; probate, prior to the scheduled
the date of hearing.
(4) The name of the person for whom letters are following (b) Notice shall be
prayed; notices successively
are published.
required (c) It shall be published in
(5) If the will has not been delivered to the court,
a newspaper of
the name of the person having custody of it
general circulation in
(Rule 76, Sec. 2).
the province where
the petition or will was
filed.
(2) Personal Notice to the
Jurisdictional requirements for proving Interested Persons
wills; Rules on Notice - The court shall also
cause copies of the
notice to be to be
The following are the persons which may be
addressed to the
notified by mail or personally, if their place of
interested persons in
residences are known: their places of residence.
(1) Heirs - Notice shall also be
(2) Legatees deposited by registered mail
(3) Devisees to the place of residence if
(4) Executor/co-executor, if they are not the known, at least 20 days
one petitioning before the hearing. Personal
service of copies of the
Notice to designated heirs, legatees and devisees notice at least 10 days
is jurisdictional when they are known and their before the day of hearing
place of residence are known (Racca v. Echague, shall be equivalent to
mailing. (Rule 76, Sec. 4)
G.R. No. 237133, January 20, 2021)
In case (1) In No newspaper publication
of ante- shall be made where the
Notice is required to be personally given to known mortem petition for probate has been
heirs, legatees, and devisees of the testator (Rule probate, filed by the Testator himself
76, Sec. 4). A perusal of the will shows that the (Rule 76, Sec. 3).
respondent was instituted as the sole heir of the following
decedent. Petitioners, as nephews and nieces of are the (2) If the T asks for the allowance
rules of his own will, notice shall be
the decedent, are neither compulsory nor testate
sent only to his CH (Rule 76,
heirs who are entitled to be notified of the probate Sec. 4)
proceedings under the Rules. Respondent had no
legal obligation to mention petitioners in the Submission of Proofs
petition for probate, or to personally notify them
of the same (Alaban vs. CA, G.R. No. 156021, Compliance with the Twin Notice Rule
September 23, 2005).

457
Rule: Before the introduction of the testimony in
support of the will, it must be shown that notices
were given to the proper parties and that the
petitioner complied with the publication
requirement.
Compliance of the required publication may be
proved by presenting to the court the affidavit of
the publisher and copies of the actual newspapers
on which the notice was published.
The court is not compelled to dismiss the petition
for probate if the petitioner fails to show proof of
notice and publication (De Leon and Wilwayco,
Special Proceedings Essentials for Bench and Bar,
p.65, 2020 ed.).
All such testimony shall be taken under oath and
reduced to writing (Rule 76, Sec. 5).
Grant of Allowance
The court may grant allowance thereof on the
testimony of 1 of the subscribing witnesses only in
case of the following –
(1) If no person appears to contest the allowance
of the will; AND
(2) If such witness testify that the will was
executed as is required by law (Rule 76, Sec.
5).
In Case of a Lost/Destroyed Will
General No will shall be proved as a lost
Rule or destroyed will
Exception Probate of a lost or destroyed will
may be allowed if:
(1) The execution and validity of
the will is established;
(2) It is proven that the will has
been in existence at the time
of the death of the testator,
or shown that it was
fraudulently or accidentally
destroyed in the lifetime of
the testator without his
knowledge;
(3) If at least 2 credible
witnesses prove the
provisions thereof clearly and
distinctly.
(4) In the case of a lost will, its
provisions must be distinctly
stated. It must be certified by
the judge, sealed by the seal
of the court, and filed and
recorded by the clerk of court
as other wills
(Rule 76, Sec. 6)
Where the subscribing witnesses are not
residents of the province where the will
was filed
If their deposition can be taken elsewhere, the
court may direct, on motion, that it be taken.
The court may authorize that a photographic
copy of the will to be presented to the witnesses
who may be questioned for it and for the
handwriting of the testator and others (Rule 76,
Sec. 7).
Allowance of Holographic Wills
In case probate of holographic wills, the
following are the rules:
i. Where there is no contest, the fact that the
testator affirms that the holographic will
and the signature thereon is his signature,
shall be sufficient evidence of its
genuineness and due execution (Rule 76,
Sec. 12).
ii. If contested, the burden of proving the
genuineness is on the contestant. The
testator may, in turn, present additional
proof necessary to rebut the evidence of
the contestant (Rule 76, Sec. 12).
Allowance of Notarial Will
When a notarial will is contested, all the
subscribing witnesses as well as the notary
public who notarized the will , must testify in the
probate proceedings (Rule 76, Sec. 11).
458

Grounds for Disallowance of a Will
(1) As to non-compliance with the legal
formalities
• If not executed and attested as required by
law;
(2) As to lack of testamentary capacity
• If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
(3) No due execution
• If it was executed under duress or under the
influence of fear or threats;
• If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or some other person for his
benefit;
• If the signature of the testator was procured
by fraud or trick, and he did not intend that
the instrument should be his will at the time
of the fixing of his signature. (Rule 76, Sec.
9)
Note: This list is exclusive.
Summary of required witnesses:
No- Testator of a holographic will.
Witness
Rule Application is filed by the
testator himself.
One- Uncontested notarial will
Witness That the will was executed as is
Rule required by law (Rule 76, Sec. 5)
Uncontested holographic will
As to the handwriting and
signature of the testator (ibid)
Two- Lost or destroyed will
Witness As to the existence and
Rule execution of the will (Rule 76,
Sec. 6)
Three- Contested holographic will
Witness At least three (3) witnesses who
Rule know the handwriting of the
testator and shall explicitly
declare that the will and the
signature are in the handwriting
of the testator (Rule 76, Sec.11).
Four- Contested notarial will
Witness The four witnesses include the
Rule three (3) subscribing witnesses
and the (1) notary public who
subscribed on the execution of
the will.
4. CLAIMS AGAINST THE ESTATE (RULE 86)
Money claims of pecuniary nature which could
have been enforced against the deceased in his
lifetime and could have been reduced to simple
money judgments.
Claim: Any debt or pecuniary demand against the
decedent’s estate.
Kinds of Claims:
(1) Absolute claim – one which, if contested
between living persons, would be the proper
subject subject immediate legal action and
would supply a basis of judgment for a sum
certain.
(2) Contingent claim – conditional claim which is
subject to the happening of a future,
uncertain event.
It has reference to uncertain of liability, and
not to uncertainty of collection. (Gaskell vs.
Tan Sit, G.R. No. 18405, September 23, 1992)
(3) Deficiency Judgment – is a contingent claim
and therefore must be filed with the probate
court where the settlement of the deceased
is pending, with the period fixed for the filing
of the claims. (First National City Bank of New
York vs. Cheng Tan, G.R. No. L-14234,
February 28, 1962)
Claims against the estate:
459
(1) Money claims – expenses contracted prior to IMMEDIATELY after granting letters testamentary
the death of the decedent. or of administration, the court shall issue a notice
requiring all persons having money claims against
General Rule: Exception: the decedent to file them in the office of the clerk
Not all money Claims arising after his of said court. (Rule 86, Sec. 1)
claims may death cannot thus be
however be presented, except:
presented, but (a) Funeral expenses; Period of Filing the Claims
only those which and
are proper against (b) Expenses of the last General The notice issued by the court
the decedent, that sickness of the Rule shall state the time for the
is, claims upon a decedent. (Testate filing of claims against the
liability contracted Estate of deceased estate, which shall not be more
by the decedent Gabin vs. Melliza, et. than 12 nor less than 6 months
before his death. al, G.R. No. L-1849, after the date of the first
October 25, 1949) publication of notice. (Rule 86,
Sec. 2)
(2) Expenses of administration – claims incurred Exception Belated claims
after the decedent’s death except claims for 1. At any time before order of
funeral expenses. (Gabin vs. Melliza, G.R. No. distribution is entered, a
L-1849, October 25, 1949) creditor who failed to file his
claim within the time set may
Expenses of administration may be collected move to be allowed to file such
claim. For good cause shown
from the administrator or executor personally
and on such terms as are just,
or by motion in the testate or intestate the court may allow such claim
proceedings without the formality and to be filed within a period not
limitations for money claims against the exceeding one (1) month.
decedent. (De Leon and Wiwalyco, Special
Proceedings Essentials for Bench and Bar, The one-month extension does
2015, p. 128) not commence from expiration
of the original period for filing
claims. It begins from the date
Claims for taxes, whether assessed before or of the order of the court
after the death of the deceased, can be allowing said filing. (Barredo
collected from the heirs even after the vs. CA, G.R. No. 17863,
distribution of the properties of the decedent. November 28, 1962)
They are exempted from the application of the
statute of non-claims. The heirs shall be liable Section 2 of Rule 86 does not
state what cause shall be
therefor, in proportion to their share in the
considered sufficient for the
inheritance. (Marcos II vs. CA, G.R. No. purpose. It is left to the
120880, June 5, 1997) discretion of the court to
determine the sufficiency
(3) Judgment for Money Against The Defendant thereof and the appellate court
cannot reverse or set aside the
Requirement to File Claims Against the action of the lower court unless
the latter has abused its
Estate; Notice to the creditors to be issued
discretion. (Quisumbing vs.
by court Guison, G.R. No. 49022, May
31, 1946)

460

Note: Acknowledgment by the
testator of a specific debt in his
will does not relieve the
creditor from the duty of filing
his claim in the testate or
intestate proceeding. (Herrera,
2005)
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.
(Sec. 5, Rule 86)
Publication of Notice to Creditors
Immediately after the notice to the creditors is
issued, the executor or administrator shall cause
the same to be published 3 weeks successively in
a newspaper of general circulation in the proving.
It shall also be posted for the same period in 4
public places in the province and in 2 public places
in the municipality where the decedent last
resided. (Rule 86, Sec. 3)
Filing copy of Printed Notice
Within 10 days after the notice has been published
and posted in accordance with the preceding
section, the executor or administrator shall file or
cause to be filed in the court a printed copy of the
notice accompanied with an affidavit setting forth
the dates of the first and last publication thereof
and the name of the newspaper in which the same
is printed. (Rule 86, Sec. 4)
Statute of Non-Claims
The statute of non-claims is a period fixed by the
rule for the filing of claims against the estate for
examination and allowance.
Guidelines
(1) The period fixed by probate court must not
be less than six (6) months nor more than
twelve (12) months from the date of the 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.
Note: 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 statue 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 Wilcayco, 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)
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 adminstratrix was
estopped and that the laches had already set
in considering that the issue of the timeliness
of the claim was made after seven (7) years.
461
 (Danan vs. Buencamino, G.R. No. L-57205,
December 14, 1981)
Waiver of Statute of Non-Claims
If the judgment in a civil case has become final,
the estate cannot be heard to say that the
judgment reached after a full-dress trial on the
merits will now go for naught. The estate is thus
waived its right to have claim re-litigated in the
estate proceedings.
Thought 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. 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)
Claims that must be presented under the
statute of non-claims
(1) All claims for money against the decedent,
arising from contract, express or implied,
whether due, not due, or contingent.
(2) All claims for funeral expenses.
(3) Expenses for the last sickness of the
decedent.
(4) Judgment for money against the decedent.
(Rule 86, Sec. 5)
Note: The enumeration is exclusive.
Claims referred to in Sec. 5 of Rule 86 refer to
claims for the recovery of money which are not
secured by a lien against the property of the
estate. (Olave vs. Canlas, G.R. No. L-12709,
February 28, 1962)
Note: If the claim is secured, apply Sec. 7, Rule
86.
Options Available to a Secured Creditor
(1) Abandon or waive the mortgage and claim
the entire debt from the estate of the
mortgagor as an ordinary claim.
(2) Foreclose the mortgage judicially and if there
is judgment for deficiency, he may file a claim
against the estate within the statute of non-
claims.
(3) Rely on the mortgage exclusively, foreclosing
the same judicially or extra-judicially at any
time before it is barred by prescription
without the right to claim for any deficiency.
Note: The mortgage creditor can avail of only one
of the three remedies and if he fails to recover
under that remedy, he cannot avail of any of the
other two remedies. (Bachrach Motor Co. Inc., vs.
Icarangal, G.R. No. L-45350, May 29, 1939)
Under Sec. 7 of Rule 86, the rule also reserves a
right to the executor or administrator of an estate
to redeem a mortgaged or pledged property of a
decedent which the mortgagee or pledge opted to
foreclose, instead of filing a money claim with the
probate court. While the redemption is subject to
the approval of the probate court, the exercise of
the right is discretionary upon the said executor or
administrator and may not be ordered by the
probate court on its own motion. (Manalansan vs.
Castaneda, G.R. No. L-43607, June 27, 1978)
Sec. 5 of Rule 86 expressly allows the prosecution
of money claims arising from a contract against
the estate of a deceased debtor. What is
extinguished is only the obligee’s action or suit file
before the court, which is not then acting as a
probate court. (Stronghold Insurance Company,
Inc. vs. Republic-Asahi Glass Corp., G.R. No.
147561, June 22, 2006)
General Rule Exception
Death of either the When the transmission is
creditor or the prevented by the law, the
debtors does not stipulations of the parties,
462
 extinguish the or the nature of the He may claim his deficiency judgment in the
obligation. obligation. Only manner provided in the proceeding section,
Obligations are obligations that are if:
transmissible to personal or are identified (a) There is a judgment for a deficiency after
the heirs. with the persons the sale of the mortgaged premises, or
themselves are (b) The property pledged in the foreclosure
extinguished by death. or other proceeding to realize upon the
security.
Claim for Civil Liability (3) Rely upon the mortgage or other security
alone, and foreclose the same at any time
Claims for civil liability survives the death of the within the period of the statute of limitations.
accused if the same may also be based on a source In that event, he shall receive no share in the
of obligation other than delict. distribution of the other assets of the estate.

Nothing herein contained shall prohibit the

Separate Civil Action
May be enforced either against:
(1) The estate of the accused, in case of a
contract; or
(2) The executor or administrator, in case of law,
quasi-contract, and quasi-delict.
executor or administrator from redeeming the
property mortgaged or pledged, by paying the
debt for which it is held as security, under the
direction of the court, if the court shall adjudge it
to be for the best interest of the estate that such
redemption shall be made. (Rule 86, Sec. 7)

Solidary obligation of the decedent Claim of Executor or Administrator Against

If the obligation of the decedent is solidary with
another debtor, the claim shall be filed against the
decedent as if he were the only debtor, without
prejudice to the right of the estate to recover
contribution from the other debtor.
In a joint obligation of thes decedent, the claim
shall be confined to the portion belonging to him.
(Rule 86, Sec. 6)
Mortgage debt due from estate
Options of the creditor holding a claim
against the deceased secured by mortgage
or other collateral security:
(1) Abandon the security and prosecute his claim
in the manner provided in this rule, and share
in the general distribution of the assets of the
estate; or
(2) Foreclose his mortgage or realize upon his
security, by action in court, making the
executor or administrator a party defendant.
the Estate
Procedure
(1) The executor or administrator shall give
notice thereof, in writing, to the court.
(2) The court shall then 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)
Under Sec. 8, if the executor or administrator has
a claim against the estate, he shall give notice to
the court in writing and the court shall thereafter
appoint a special administrator.
This is one of the instances where a special
administrator is appointed. The special
administrator will have authority to act only with

463
respect to the claim of the regular administrator or
executor.
From an estate proceeding perspective, the
Special Administrator’s commission is no less a
claim against the estate than a claim that third
parties make make. Sec. 8, Rule 86 recognizes this
when it provides for “Claim of Executor or
Administrator against an Estate.” Under Sec. 13 of
the same Rule, the action of the court on a claim
against the estate is “appealable as in ordinary
cases.” Hence, by express terms of the Rules, the
ruling on the extent of the Special Administrator’s
commission is appealable. (Briones vs. Henson-
Cruz, G.R. No. 159130, August 22, 2008)
Answer of Executor or Administrator
General Within 15 days after service of a
Rule copy of the claim.
Exception The court, in its discretion, may
extend such time.
The answer must contain the
admission or denial of the claim
specifically, and setting forth the
substance of the matters which
are relied upon to support the
admission or denial.
If he has no knowledge sufficient
to enable him to admit or deny
specifically, he shall state such
want of knowledge.
A copy of the answer shall be
served by the executor or
administrator on the claimant.
The court in its discretion, may
extend the time for filing such
answer. (Rule 86, Sec. 10)
Offset of Claim
The executor or administrator in his answer shall
allege in offset any claim which the decedent
before death had against the claimant, and his
failure to do so shall bar the claim forever. (Rule
86, Sec. 10)
Disposition of Admitted Claim
Any claim admitted entirely by the executor or
administrator shall immediately be submitted to
the clerk to the court who may approve the same
without hearing.
However, the court in its discretion and before
approving the claim, may oder that known heirs,
legatees, or devisees be notified and heard.
If upon hearing, an heir, legatee, or devisee
opposes the claim, the court may, in its discretion,
allow him 15 days to file an answer to the claim in
the manner prescribed in the preceding section.
(Rule 86, Sec. 11)
Trial of Contested Claim
Upon the filing of an answer to a claim, or upon
the expiration of the time for such filing, the clerk
of court shall set the claim for trial with notice to
both parties.
The court may refer the claim to a commissioner.
(Rule 86, Sec. 12)
Judgment Appealable
The judgment of the court approving or
disapproving a claim, shall be filed with the record
of the administration proceedings with notice to
both parties, and is appealable as in ordinary
cases.
A judgment against the executor or administrator
shall be that he pay, in due course of
administration, the amount ascertained to be due,
and it shall not create any lien upon the property
of the estate, or give to the judgment creditor any
priority of payment.
Note: The mode of appeal is record on appeal and
must be filed within thirty (30) days from notice of
judgment. (Sec. 13, Rule 86)
464
Actions Commenced Against the Estate (Rule 86) vs Action Commenced Against the Executor
and Administrator (Rule 87)

Rule 86 Rule 87
As to whom it may Against the estate of the deceased Directly against the executor and
be commenced administrator
As to Actions (1) Money claims, debts incurred by the (1) Recovery of real/personal
Covered deceased during his lifetime arising from property or any interest therein
contract; from estate;
(2) Claims for funeral expenses or for (2) Enforcement of a lien thereon;
the last sickness of the deceased; and and
(3) Judgment for money against (3) Action to recover damages
decendant arising from injury.

465
 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.

466
 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 stating: Supported by affidavit

stating the particulars
The amount justly due; thereof

That no payments have been made

thereon which are not credited;

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 of the claim on the executor or administrator
the time for on the claimant
filing such
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
Judgment filed with the
without hearing order that known heirs, commissioner
record of the
legatees, or devisees be
administration
notified and heard.
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

467
5. PAYMENT OF THE DEBTS OF THE ESTATE When Writ of Execution May Issue
(RULE 88)
General Rule Exception
Requisites before executor or administrator Probate court may Execution may issue only
may pay a claim against the estate not issue a writ of where the devisees,
execution to legatees or heirs have
recover a claim entered into possession of
(1) Hearing is conducted;
against the estate their respective portions
(2) Amounts of claims are ascertained; and,
(Aldamiz vs. Judge in the estate prior to the
(3) There are sufficient assets to pay the claims.
of CFI Mindoro, G. settlement and payment
(Rule 88, Sec. 1)
R. No. L-2360, of the debts and expenses
December 29, of administration and it is
The provision in a will for the payment of a specific 1949). later ascertained that
debt does not dispense with the requirement that there are such debts and
a claim should be filed against the estate. (De Leon expenses to be paid
and Wilwayco, Special Proceedings Essentials for (Domingo vs. Garlitos,
Bench and Bar, 2020, p.170). G.R. No. L-18994, June
29, 1963).
In any case where the provision in the will is
Applicable provisions if the decedent is
insufficient to cover the entire debt, that part of
insolvent
the decedent’s estate not disposed of by will shall
answer for such deficiency (Sec. 2).
General Rule: If the assets of the estate of a
decedent which can be applied to the payment of
Order in which the Estate Property is
debts are not sufficient for that purpose, the
Changed for the Payment of Debts and
provisions of Articles 2239 to 2251 of the Civil
Expenses
Code on Preference of Credits shall be
observed, provided that the expenses referred to
(1) The part of the estate designated in the will
(2) The personal estate of the deceased not in Article 2244, No. 8, shall be those involved in
disposed of by will the administration of the decedent's estate (Art.
(3) If said personal estate is not sufficient, or its 1059, Civil Code).
sale would be detrimental to the participants
of the estate, the whole of the real estate not “Art. 2244. With reference to other
disposed of by will, or so much thereof as is property, real and personal, of the debtor,
necessary, may be sold, mortgaged, or
the following claims or credits shall be
otherwise encumbered for that purpose by
the executor or administrator, after obtaining preferred in the order named:
the court’s authority. xxx
(4) Any deficiency shall be met by contributions 8. Legal expenses, and expenses incurred
from devisees, legatees, or heirs who have in the administration of the insolvent's
entered into possession of portions of the estate for the common interest of the
estate before the payment of debts and
creditors, when properly authorized and
expenses (Rule 88, Sec. 3).
approved by the court;
xxx”

468
Exceptions: Instances when realty can be
charged first before decedent’s personal property:
(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)
In order for the above exceptions to apply, the
following requisites should be followed:
(a) Application by executor/administrator;
(b) Written notice to persons interested; and
(c) Hearing by the court
The same principles apply if the debt of the estate
is in another country (M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 486)
Estate to be Retained to Meet Contingent
Claims
Where there is a contingent claim filed which has
became absolute and the court is satisfied that the
claim is valid, the probate court:
(1) May order the executor or administrator to
retain in his hands a sufficient part of the
estate and part such contingent claim; or
(2) If the estate is insolvent, may order the
executor or administrator to retain in his
hands a sufficient part to pay a portion equal
to the dividend of the other creditors. (Rule
88, Sec. 4)
Contingent Claim
One that is subject to the happening of a future
uncertain event (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, 2020, p.
173).
Requisites for Estate be Required to Retain
Estate to Meet Contingent Claim
(1) Contingent claim becomes absolute;
(2) Presented to the court or to the executor or
administrator within 2 years allowed for
creditors to present claims; and
(3) Court is satisfied that the claim is valid (Rule
88, Sec. 5).
Note: Contingent claims not presented after 2
year period for filing claims, assets retained and
not exhausted for payment of claims in the hands
of the executor or administrator shall be
distributed by order of the court to persons
entitled (ibid).
Assets so distributed may still be applied to the
payment of contingent claims when established
and the creditor may maintain an action against
the distributees to recover the debt. Distributees
and their estates shall be liable for the debt in
proportion to the estate they have respectively
received from the decedent's property (ibid).
Effect when Devisees, Legatees, or Heirs
have Entered into Possession of Estate
before Payment of Debts and Expenses
Devisees, Legatees, or Heirs will become liable to
contribute for payment of such debts and
expenses. In this case, the probate court, after
hearing, may:
(a) Settle the amount of said person’s several
liabilities;
(b) Order how much and in what manner each of
them will contribute; and
469
(c) May issue an execution as circumstances may
require (Rule 88, Sec. 6)
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
assumes that the claim of other creditors entitled
to a higher preference have been satisfied (Rule
88, Sec. 8).
Estate of Insolvent Non-resident Decedent
The estate of a non-resident decedent, who died
insolvent and whose administration of estate is
undertaken in the Philippines, shall be, as far as
practicable, so disposed of that his creditors here
and elsewhere may receive an equal share in
proportion to their respective credits (Rule 88. Sec.
9).
Claims Proved Outside Philippines against
Insolvent Resident’s Estate
The Probate Court shall receive a certified list of
such claims, when perfected in such country, and
add the same to the list of claims proved against
the deceased person in the Philippines so that a
just distribution of the whole estate may be made
equally among all its creditors according to their
respective claims. (Rule 88, Sec. 10)
Effect of claims proved outside the Philippines
against the insolvent resident’s estate:
(1) Claims were proven outside the Philippines
against the estate of an insolvent;
(2) Said insolvent was an inhabitant of the
Philippines at the time of death; and
(3) Executor or administrator of the resident
insolvent decedent had knowledge and
opportunity to contest the allowance of said
claim (Ibid.).
Note: The benefits of Sec. 9 and Sec. 10 shall not
be extended to the creditors in another country if
the property of such deceased person there found
is not equally apportioned to the creditors residing
in the Philippines and the other creditor, according
to their respective claims. (Rule 88, Sec. 10)
Court Order for the Payment of Debts
Before the expiration of the time limited for the
payment of the debts, the court shall order the
payment thereof, and the distribution of the assets
received by the executor or administrator for that
purpose among the creditors, as the
circumstances of the estate require and in
accordance with the provisions of this rule. (Rule
88, Sec. 11)
When Appeal is taken from a Decision on a
Claim
The Court may:
(a) Suspend the order for the payment of the
debts; or
(b) Order the distributions among the creditors
whose claims are definitely allowed, leaving
in the hands of the executor or administrator
sufficient assets to pay the claim disputed and
appealed. (Rule 88, Sec. 12)
When Disputed Claims are Finally Settled
The court having jurisdiction of the estate shall
order the same to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors. (Rule
88, Sec. 12)
Court’s Power to Make Further Orders for
the Distribution of Decedent’s Estate
The Court is not precluded from making a single
order of distribution of the estate. It may also
make further orders for distribution of the estate
if:
470
(1) The whole if the debts are not paid on the
first distribution;
(2) The whole assets are not distributable; or
(3) If other assets afterwards come to the hands
of the executor or administrator (Rule 88,
Sec. 13).
Creditors to be Paid According to the Order
When an order is made for the distribution of
assets among the creditors, the executor or
administration shall, as soon as the time of
payment arrives, pay the creditors the amounts of
their claims, or the dividend thereon, in
accordance with the terms of such order. (Rule 88,
Sec. 14)
Period for the Payment of Debts
(1) The executor or administrator has an initial
period of one (1) year from the issuance of
letters testamentary or administration to:
(a) Dispose of the estate; anf
(b) Pay the debts and legacies of the
deceased.
(2) The court may extend said period. After
hearing and notice to all persons interested,
the executor or administrator may apply for
an extension for not exceeding six (6) months
for a single extension.
(3) Whole period allowed to the 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 the
original executor or administrator.
(5) The total allowable period to the successor if
the executor/administrator dies is two and a
half years (2.5 years) (Rule 88, Sec. 15 and
16; De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar,
2020, p.177).
Sale of property levied for satisfaction of
decedent’s debts
If a judgment debtor dies after such levy, property
may be sold. If a 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. SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT (RULE 89)
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 motu proprio 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, expenses of
administration or legacies, or the preservation of
the property (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p.171,
2015 ed.)
When Court May Authorize Sale, Mortgage,
or Other Encumbrance to Pay Debts and
Legacies, Personalty Not Exhausted Order of
sale of personalty, when proper
471
 administration and legacies, as well as security of
The court may order the whole or part of the the creditors, executor or administrator (Rule 89,
personal estate to be sold if it appears necessary Sec. 3)
for:
1. To pay debts, expenses of administration; When Court May Authorize Sale of Estate
2. To pay legacies; or As Beneficial to Interested Persons
3. To cover expenses fot the preservation of the
property (Rule 89, Sec. 1)
The primary consideration of the court for
authorizing the sale under this provision is the
When may be authorized by the court
interest and benefit to the heirs, devisees,
legatees and other interested persons.
(1) When personal property is not sufficient to
cover the debts, expenses of administration
and legacies; or General Purpose of the sale of estate
(2) When sale of personal estate may injure the Rule under Rule 89 must be for the
business interests of those interested in the payment of debts, expenses of
estate; and administration or legacies, or for
(3) Testator has not made sufficient provision for preservation of property
the payment of debts, expenses, and legacies Exception Sale of estate may be authorized
by the court even if not necessary
Requisites for the above mentioned
purposes, provided such sale is
beneficial to interested persons.
(1) Court application of executor or
administrator; Any proceeds derived from the
(2) Written notice to the heirs, devisees and sale shall be assigned to the
legatees residing in the Philippines persons entitled to the estate in
(3) SME clearly appears beneficial to persons the proper proportions.
interested
Exception Authority to sell estate as
to the beneficial to interested persons
General Rule Exception Exception shall not be granted if
Only so much as When whole property may inconsistent with the provisions of
may be necessary be sold: a will (Rule 89, Sec. 4).
of the real estate 1. If the SME of a part will
need be sold, injure those interested When Court May Authorize Sale, Mortgage,
mortgaged or in the remainder; and
or Other Encumbrance to Pay Debts and
encumbered. 2. If it is necessary under
the circumstances Legacies in Other Countries
(Rule 89, Sec. 2)
The court in the Philippines may authorize the
Persons Interested May Prevent Such Sale executor or administrator to sell the personal
By Giving Bond estate or to sell, mortgage or encumber the real
estate for the payment of debts or legacies in
Any person interested in the estate may prevent another country if it appears from the records and
the sale, mortgage or encumbrance of real or proceedings of a probate court in another country
personal property part of the estate by giving a that the estate of the deceased in such other
bond in an amount fixed by the court, conditioned country is insufficient to pay the debts, expenses
on the payment of debts, expenses of

472
of administration, and legacies there (Rule 89,
Sec. 5).
When Court May Authorize 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)
Regulation for Granting Authority to Sell,
Mortgage, or Otherwise Encumber Estate
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:
i. Debts due from the deceased
ii. Expense of Administration
iii. Legacies
iv. Value of the personal estate
v. Situation of the estate to be sold,
mortgaged or encumbered
vi. 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)].
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)].
473
When Court May Authorize Conveyance of
Realty Which Deceased Contracted to
Convey
Requisites:
(1) The deceased, during his lifetime, was under
a contract to deed real property or an interest
therein;
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.
(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. (Rule 89, Sec. 8)
When Court May Authorize Conveyance of
Lands Deceased Held in Trust
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;
(3) Notice of the application given personally or
by mail to all persons interested;
Note: It is necessary that notice be given to all
persons interested in the estate prior to the
authorization to deed the property held in trust by
the decedent to the person entitled to the same
(De Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, p. 183, 2020 ed.).
(4) Further notice given by publication or
otherwise, as the court deems proper;
(5) The court may order the execution of such
trust, whether created by deed or by law.
Rule 89, Sec. 9)
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).
7. DISTRIBUTION AND PARTITION (RULE
90)
When Order for Distribution of Residue
Made
An order for distribution of the residue shall be
made after payment of all:
(1) Debts
(2) Funeral charges
(3) Expenses of administration
(4) Allowance of the widow
(5) Inheritance Tax, if any (Sec. 1)
Liquidation
General Before an order of distribution or
Rule assignment, it must be shown
that the “debts, funeral expenses
and expenses of administration,
allowances, taxes, etc.,
chargeable to the estate” have
been paid.
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.
474
 No. L-17091, September 30, incapacity. (Estate of Hilario M. Ruiz, Edmond Ruiz
1963). vs. CA, G.R. No. 118671, January 29, 1996).
Exception If the distributees give a bond
conditioned on the payment of Requisites Before Distribution of Estate:
above obligations (Rule 90, Sec.
1)
(1) Liquidation – determination of all assets of
The part distributed must not be the estate and payment of all debts and
subject to any controversy or expenses.
appeal. (Rule 109, Sec. 2) (2) Declaration of heirs – undertaken to
determine to whom the residue of the estate
should be distributed.
Allowances Pending Settlement
The net estate of the decedent must be
The widow and minor or incapacitated children of
ascertained by deducting all payable obligations
a deceased person, during the settlement of the
and charges from the value of the property owned
estate, shall receive therefrom under the direction
by the deceased at the time of his death; then, all
of the court, such allowance as are provided by
donations subject to collation would be added to
law (Rule 83, Sec. 3).
it. With the partible estate thus determined, the
legitime of the compulsory heir or heirs can be
Allowances not limited to the “minor or
established; and only then can it be ascertained
incapacitated” children
whether or not a donation had prejudiced the
legitimes (Treyes v. Larlar, G.R. No. 232579,
It is settled that allowances for support under
September 8, 2020)
Section 3 of Rule 83 should not be limited to the
"minor or incapacitated" children of the deceased.
Project of Partition
Article 188 of the Civil Code of the Philippines, the
substantive law in force at the time of the
A project of partition is a document prepared
testator's death, provides that during the
by the executor or administrator setting forth the
liquidation of the conjugal partnership, the
manner in which the estate of the deceased is to
deceased's legitimate spouse and children,
be distributed among the heirs. It is a proposal for
regardless of their age, civil status or gainful
distribution of the hereditary estimates and
employment, are entitled to provisional support
determines the persons entitled thereto (Moran,
from the funds of the estate. The law is rooted on
Comments on the Rules of Court, 1997 ed., Vol. 3,
the fact that the right and duty to support,
pp. 688-689).
especially the right to education, subsist even
beyond the age of majority (Pilapil vs. Heirs of
Towards the end of the proceedings in a
Briones, G.R. No. 150175, February 5, 2007).
settlement of estate petition, a project of partition
is usually prepared and presented to the court.
Who are Not Entitled to Provisional Support
If the estate is a testate estate, the project of
Grandchildren are not entitled to provisional
partition must conform to the terms of the will; if
support from the funds of the decedent's estate.
intestate, the project of partition must be in
The law clearly limits the allowance to "widow and
accordance with the provisions of the Civil Code
children" and does not extend it to the deceased's
grandchildren, regardless of their minority or

475
(Camia de Reyes vs. Reyes de Ilano, G.R. No.
42092, October 28, 1936)
Approval of Project of Partition
(1) 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 long as the order of the distribution of the
estate has not been complied with, the
probate proceedings cannot be deemed closed
and terminated (Treyes v. Larlar, G.R. No.
232579, September 8, 2020)
(2) 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 (ibid.)
Effect of Settlement of Debts and
Distribution of Estate
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).
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 (Treyes v. Larlar, G.R. No.
232579, September 8, 2020).
Advance Distribution of the Estate
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 (Silverio, Jr. vs. CA, G.R.
No. 178933, September 16, 2009).
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).
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).
The rule is clear that any disposition of estate
property by an administrator or prospective heir
pending final adjudication requires court approval
and any unauthorized disposition of estate
property can be annulled by the probate court,
there being no need for a separate action to annul
the unauthorized disposition. (Lee vs. RTC Quezon
City, G.R. No. 146006, February 23, 2004)
Remedy of 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).
476
Remedies Available, When Proper
Motion for Where an heir who has
Reconsideration been duly notified of the
or Appeal 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).
Action to Annul Where the heir and his
the Judgment 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)
Motion for Where the heir or his
Delivery of Share address is unknown and
or to Re-Open no notice was given to
the Proceedings 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, GR No.
L-26876, December 27,
1969).
Action for If the order of closure
Reconveyance has become final, the
remedy of the heir is to
file an action for
reconveyance 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:
(1) A proper motion in the same probate or
administration proceedings, or
(2) 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).
477
Remedy of 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, NCC).
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).
When Court May Issue Writ of Execution
General Rule:
A probate court cannot issue a writ of execution.
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 vs. Pacheco, G.R. No.
43351, February 26, 1937).
Questions As to Advancement
Questions as to advancement 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,
Sec. 2).
While the Rules used the word “may,” it is
nevertheless clear that the provision contemplates
a probate court when it speaks of “the court
having jurisdiction of the estate proceedings.”
Thus, a court acting in its general jurisdiction is
devoid of authority to render an adjudication and
resolve the issue of advancement of real property
(De Leon and Wilwayco, Special Proceedings
Essentials for Bench and Bar, p.194, 2020 ed.).
The 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 of Partition Paid
(1) Executor or Administrator, if he has
sufficient effects in his hands, and when
equitable and not inconsistent with the
testator’s intention;
(2) Otherwise, by the parties, in proportion to
their respective shares or interest in the
premises.
If any person interested in the partition does not
pay his proportion or share, the court may issue
an execution in the name of the executor or
administrator against the party not paying the sum
assessed (Rule 90, Sec. 3)
Recording of Order of Partition
Certified copies of final orders and judgments of
the court relating to the real estate or the partition
thereof shall be recorded in the registry of deeds
of the province where the property is situated
(Rule 90, Sec. 4).
478

B. 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
SC (May 1, 2003) of the Rules of
Court
Governs guardianship Governs
over the person, guardianship of
property or both of incompetents who
minors. are not minors.
“Minor” is a person
below 18 years of age.
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.
(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-VAWC Law, effective March
27, 2004).
Basis of Guardianship (Parens Patriae)
Where minors are involved, the State acts
as parens patriae. To it is cast the duty of
protecting the rights of persons or individual who
because of age or incapacity are in an unfavorable
position, vis-a-vis other parties. Unable as they
are to take due care of what concerns them, they
have the political community to look after their
welfare. (Nery v. 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 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.
When the market value of the property or the
annual income of the child exceeds
479
 Php.50,000.00, the parent concerned shall be
required to furnish a bond in such amount as 1. VENUE (RULE 92)
the court may determine to guarantee the
performance of the obligations prescribed for Where to Institute Guardianship
general guardians. Proceedings

The amount of the bond shall in no case be Minors Wards

less than 10% of the value of the property or Resident Family court MTC or RTC
annual income of the child. (Sec. 16, Rule on where the (depending on the
Guardianship of Minors, A.M. No. 03-02.05- minor resides jurisdictional
value) where the
SC).
incompetent
resides
(2) Guardian ad litem - a competent person Non- Family court MTC or RTC
appointed by the court for purposes of a Resident where the (depending on the
particular action or proceeding involving a minor’s jurisdictional
minor. properties are value) where the
located incompetent’s
In resolving whether to appoint a guardian ad properties are
litem for the respondent, the court only located
needed to make a finding that based on clear
and convincing evidence, the respondent is “Incompetent” includes:
incompetent and that it is more likely than not (a) Those suffering the penalty of civil
that his welfare requires the immediate interdiction;
(b) Hospitalized lepers;
appointment of a temporary guardian (Rivero
(c) Prodigal;
vs. CA, G.R. No. 141273, May 17, 2005). (d) Deaf and dumb who is unable to read and
write;
Guardians ad litem are considered as officers (e) Those of unsound mind though they may
of the court in a limited sense, and the office have lucid intervals;
of such is to represent the interest of the (f) Those not of unsound mind, but by reason of
incompetent or the minor. (Ibid.) weak mind, age, disease and other similar
causes, cannot, without outside aid, take care
of themselves and manage their own
(3) Judicial guardian - a person appointed by property (Rule 92, Sec. 2)
the court for the person, property or both of
the ward to represent the latter in all acts and
Finding that a person is incompetent should be
litigations. (De Leon and Wilwayco, Special
Proceedings Essentials for Bench and Bar, p. anchored on clear, positive, and definite evidence.
219, 2020 ed.) Where the sanity of a person is at issue, expert
opinion is not necessary, such observations of the
General Rule Exception trial judge coupled with evidence establishing the
Parents should apply for Ratification person’s state of mental sanity will suffice.
judicial guardianship in (Oropesa vs. Oropesa, G.R. No. 184528, April 25,
order for them to sell 2012)
properties of their
children.
Transfer of Venue
(Neri v. Heirs of Spouses Yusop, G.R. No. 194366,
October 10, 2012)

480
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).
2. APPOINTMENT OF GUARDIANS (RULE
93)
Who may file
Any of the following persons may file a petition to
the court having jurisdiction for the appointment
of a general guardian of the person or estate, or
both:
(1) Relative of the incompetent;
(2) Friend of the incompetent; or
(3) Other person on behalf of the incompetent
who has no parent or lawful guardian.
(4) The Secretary of Health in favor of an insane
person who should be hospitalized or an
isolated leper. (Rule 93, Sec. 1)
In case of a non-resident incompetent, any of the
following persons may file the petition before a
court having jurisdiction for the appointment of a
guardian for the estate:
(1) Relative of the non-resident incompetent;
(2) Friend of the non-resident incompetent. (Rule
93, Sec. 6)
Contents of the Petition
The petition for the appointment of a general
guardian must be verified and must show, so far
as known to the petitioner:
(1) Jurisdictional facts;
(a) The incompetency of the person for
whom guardianship is sought;
(b) That the ward is domiciled in the
Philippines.
(2) The incompetency rendering the
appointment necessary or convenient;
(3) The names, ages, and residence of the
relatives of the minor or incompetent, and
of the person having him in their care;
(4) The probable value and character of his
estate;
(5) The name of the person for whom letter of
guardianship. (Rule 93, Sec. 2)
No defect in the petition or verification shall
render void the issuance of letters of
guardianship. (Rule 93, Sec. 1)
Factors considered 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)
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)
Prohibited as Guardians
(1) If the interested person is a creditor and
mortgagee of the estate of the minor, he
cannot be appointed as guardian of the
person and property of the latter. No man can
serve two masters;
(2) Minor; and
(3) Incompetent who has no capacity to care of
himself and/or his properties. (De Leon and
Wilwayco, Special Proceedings Essentials for
Bench and Bar, 2020 edition, p. 222)
481
Notice and Hearing himself, or to any suitable person named in the
opposition. (Rule 93, Sec. 4)
When a petition for the appointment of a general Hearing and order for issuance of letters of
guardian is filed, the court shall: guardianship
(a) Fix a time and place for hearing;
(b) Shall cause reasonable notice thereof to be During the hearing:
given to the persons mentioned in the petition (1) Alleged incompetent must be present, if
residing in the province, including the able to attend;
incompetent himself, and (2) It must be shown that the required notice
(c) May direct other general or special notice must be shown to have been given; and
thereof to be given. (Rule 93, Sec. 3) (3) Court shall hear and receive evidence of the
parties in support of their respective
General Rule Exception allegations. (Rule 93, Sec. 5)
Publication is not In case of an
required, only notice incompetent who If person is indeed incompetent, the court shall
of hearing served on resides without the appoint a suitable guardian of his person or estate,
persons mentioned in Philippines but has
or both, with the powers and duties of a guardian.
the petition who are estate therein. (Rule
resident of the 93, Sec. 6) (Ibid)
Philippines. (Rule 93,
Sec. 3) Appointment of Guardian for Non-Resident

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).
When a person liable to be put under guardianship
resides without the Philippines but the estate
therein, any relative or friend of such person, or
anyone interested in his estate, in expectancy or
otherwise, may petition a court having jurisdiction
for the appointment of a guardian for the estate,
and if, after notice given to such person and in
such manner as the court deems proper, by
publication or otherwise, and hearing, the court is
satisfied that such non-resident is a minor or
incompetent rendering a guardian necessary or
convenient, it may appoint a guardian for such
estate. (Rule 93, Sec. 6)

Opposition to petition Letters of Guardianship Pending Appeal

Any interested person may, by filing a written
opposition, contest the petition on the ground of:
(1) Competency of the alleged incompetent; or
(2) The unsuitability of the person for whom
letters are prayed.
The oppositor may pray that the petition be
dismissed, or that letters of guardianship issue to
Pending appeal, the lower court may issue letters
of guardianship for the appointment of a guardian.
Upon urgent and compelling reasons, execution
pending appeal is a matter of sound discretion on
the part of the trial court and the appellate court
will not interfere, control or inquire into the
exercise of this discretion, unless there has been

482
an abuse thereof. Inasmuch as the primary
objective for the institution of guardianship is for
the protection of the ward, there is more than
sufficient reason for the immediate execution of
the lower court's judgment for the replacement of
the first guardian. (Francisco vs. CA, supra)
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)
3. GENERAL POWERS AND DUTIES OF
GUARDIANS (RULE 96)
Authority of a guardian
To manage the estate and attend to the comfort
and suitable maintenance of the ward. (Caniza vs.
CA, G.R. No. 110427, February 24, 1997)
General Powers and Duties
(1) To have the care and custody of the person
of his ward, and the management of his
estate, or both the management of the
estate only, as the case may be. (Rule 96,
Sec. 1)
(2) To pay the ward's just debts out of his
personal estate and income of his real
estate, if sufficient. (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).
Note: Before the court may authorize the
guardian to join in said assent, there must
be:
(a) Hearing;
(b) Notice to relatives of the ward; and
(c) Careful investigation as to the
necessity and propriety of the
proposed action (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 (Rule 96, Sec. 7).
(8) To render an inventory and account, when
the rendition of any of which may be
compelled upon the application of an
interested person (Rule 96, Sec. 7).
(9) 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)
(10) To present his account to the court for
settlement and allowance upon the
expiration of a year from the time of his
appointment, and as often thereafter as
may be required. (Rule 96, Sec. 8)
Power of dominion, is granted by law only to a
JUDICIAL GUARDIAN of the ward’s property and
even then only with court’s prior approval secured
in accordance with the proceedings set forth by
the Rules. (Neri v. Heirs of Spouses Yusop, G.R.
No. 194366, October 10, 2012)
483
4. TERMINATION OF GUARDIANSHIP (RULE
97)
Who may file the Petition
Any of the following persons may petition the court
to have incompetent’s competency judicially
determined.
(a) A person who has been declared
incompetent for any reason;
(b) His guardian;
(c) His relative; or
(d) His Friend. (Rule 97, Sec. 1)
Contents of the Petition
The petition shall be verified by oath, and shall
state that: such person is then competent. (Rule
97, Sec. 1)
Notice and Hearing
Upon receiving 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,
and to the ward. (Rule 97, Sec. 1)
Trial
On the trial, the guardian or relatives of the ward,
and, in the discretion of the court, any other
person, may contest the right to the relief
demanded, and witnesses may be called and
examined by the parties or by the court on its own
motion. (Rule 97, Sec. 1)
If it be found that the person is no longer
incompetent, his competency shall be adjudged,
and the guardianship shall cease. (Rule 97, Sec.
1)
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. (De Leon and
Wilwayco, Special Proceedings Essentials for
Bench and Bar, 2020, p.237)
Grounds for Removal of Guardianship
(1) Insanity;
(2) Incapable of discharging his trust;
(3) Unsuitability;
(4) Wasted or mismanaged the estate; or
(5) Failed for 30 days after it is due to render
an account or make a return. (Rule 97, Sec.
2)
Other grounds
1. Becomes physically disabled or incapacitated;
2. Convicted of crime; or
3. Becomes moral delinquent (Francisco vs. CA,
G.R. No. L-57438 January 31, 1984)
4. Death It is a well-established rule that the
relationship of guardian and ward is necessarily
terminated by the death of either the guardian or
the ward. (Abad v. Biason, G.R. No. 191993
(Resolution), December 5, 2012)
The court may, upon reasonable notice to the
guardian, remove him, and compel him to
surrender the estate of the ward to the person
found to be lawfully entitled thereto. (Rule 97, Sec.
2)
Resignation of Guardian
A guardian may resign when it appears proper to
allow the same; and upon his resignation or
removal the court may appoint another in his
place. (Rule 97, Sec. 2)
Service of Judgement
Final orders of judgments under this rule shall be
served upon the civil registrar of the municipality
or city where the incompetent person resides or
where his property or part thereof is situated.
(Rule 97, Sec. 5)
484
C. WRIT OF HABEAS CORPUS Coverage of the Writ

Habeas corpus is a writ directed to the person General The writ of habeas corpus
detaining another, commanding him to produce Rule extends to all cases of illegal
the body of the prisoner at a designated time and confinement or detention,
place, with the day and cause of his capture and involving either of two things:
a. the deprivation of liberty; or,
detention, to do, submit to, and receive
b. the rightful custody of any
whatsoever the court or judge awarding the writ person is withheld from the
shall consider in that behalf (Ilusorio vs. Bildner, person entitled thereto
G.R. No. 139789, May 12, 2000).
Exception When otherwise expressly
The writ of habeas corpus was devised and exists provided by law. (Rule 102, Sec.
as a speedy and effectual remedy to relieve
1)
persons from unlawful restraint, and as the best
Preliminary citation
and only sufficient defense of personal freedom.
If the person is detained under governmental
(In the Matter of the Petition for Writ of Habeas
authority and the illegality of his detention is not
Corpus/Data v. De Lima, G.R. Nos. 215585 &
patent from the petition for the writ, the court
215768, September 8, 2020)
issues the citation to the government officer
having custody to show cause why the habeas
The writ of habeas corpus may also be availed of
corpus writ should not issue(Lee Yick Hon vs. The
as a post-conviction remedy when, as a
Insular Collector of Customs, G.R. No. L-16779,
consequence of a judicial proceeding, any of the
March 30, 1921);
following exceptional circumstances is attendant:
1) there has been a deprivation of a constitutional
Peremptory writ of Habeas Corpus
right resulting in the restraint of a person;
2) the court had no jurisdiction to impose the
It is a written document unconditionally
sentence; or
commanding the respondent to have the body
3) the imposed penalty has been excessive, thus
detained person before the court at a time
voiding the sentence as to such excess.
and place specified therein (De Leon and
(Cagasca-Evangelista v. Bantag, G.R. No. 251954
Wilwayco, Special Proceedings Essentials for
(Resolution), June 10, 2020)
Bench and Bar, 2020, p. 407).
A writ of habeas corpus is essentially a writ of
Grounds to Suspend the Writ under the
inquiry and is granted to test the right under which
1987 Constitution
a person is detained (Velasco vs. CA, G.R. No.
118644, July 7, 1995).
(1) Invasion, when public safety requires it; or
(2) Rebellion, when public safety requires it.
The writ is not issued when the person is in (Sec. 18, Art. VIII, 1987 Constitution)
custody because of a judicial process or a valid
judgment (Adonis vs. Tesoro, G.R. No. 182855, The determination of the existence of a state of
June 5, 2013). rebellion for purposes of proclaiming martial law
or the suspension of the privilege of the writ of
habeas corpus rests for which the President is

485
granted ample, though not absolute, discretion.
Not even the suspension of the privilege of the writ
of habeas corpus or the declaration of martial law
authorizes the President to order the arrest of any
person. The only significant consequence of the
suspension of the writ of habeas corpus is to divest
the courts of the power to issue the writ whereby
the detention of the person is put in issue. It does
not by itself authorize the President to order the
arrest of a person. (Lacson vs. Perez, G.R. No.
147780, May 10, 2001)
At present, the Commander-in-Chief still
possesses the power to suspend the privilege of
the writ of habeas corpus and to proclaim martial
law. However, these executive powers are now
subject to the review of both the legislative and
judicial branches. The Congress is not
constitutionally mandated to convene in joint
session in the event that the President proclaims a
state of martial law and/or suspends the privilege
of the writ of habeas corpus, except to vote jointly
to revoke the President’s declaration or
suspension. (Padilla vs. Congress of the Phil. G.R.
No. 231671, July 25, 2017)
Purpose
Its primary purpose is to determine the legality of
the restraint under which a person is held." The
writ may be applied to any manner of restraint as
any restraint which will preclude freedom of action
is sufficient. (In the Matter of the Petition for Writ
of Habeas Corpus/Data v. De Lima, G.R. Nos.
215585 & 215768, September 8, 2020)
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. 391, 2020 ed.)
Nature
(a) 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).
(b) A writ of habeas corpus, which is regarded as
a "palladium of liberty" is a prerogative writ
which does not issue as a matter of right but
in the sound discretion of the court or judge.
It, is, however, a writ of right on proper
formalities being made by proof. Resort to the
writ is to inquire into the criminal act of which
a complaint is made but unto the right of
liberty, notwithstanding the act, and the
immediate purpose to be served is relief from
illegal restraint. The primary, if not the only
object of the writ of habeas corpus ad
subjuciendum is to determine the legality of
the restraint under which a person is held
(Salas v. Bunyi-Medina, G.R. No. 251693,
September 28, 2020)
(c) 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)
(d) Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the
judge in order that the cause of his detention
may be inquired into and his statements final.
The writ of habeas corpus does not act upon
the prisoner who seeks relief, but upon the
person who holds him in what is alleged to be
the unlawful authority. Hence, the only
486
 parties before the court are the petitioner
(prisoner) and the person holding the
petitioner in custody, and the only question
to be resolved is whether the custodian has
authority to deprive the petitioner of his
liberty. The writ may be denied if the
petitioner fails to show facts that he is entitled
thereto ex merito justicias (Salas v. Bunyi-
Medina, G.R. No. 251693, September 28,
2020)
(e) If a person’s liberty is restrained by some
legal process, the writ of habeas corpus is
unavailing. The writ cannot be used to
directly assail a judgment rendered by a
competent court or tribunal which, having
duly acquired jurisdiction, was not ousted of
this jurisdiction through some irregularity in
the course of the proceedings. (De Villa vs.
The Director, New Bilibid Prisons, G.R. No.
158802, November 17, 2004)
(f) The rule is that when there is a deprivation of
a person’s constitutional rights, the court that
rendered the judgment is deemed ousted of
its jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of his
detention. (In the Matter of Petition for the
Privilege of the Writ of Habeas Corpus:
Azucena Garcia, G.R. No. 141443, August 30,
2000)
(g) Habeas corpus is not in the nature of a writ
of error; nor intended as a 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
questions of error that might be raised
relating to procedure or on the merits. The
inquiry in a habeas corpus proceeding is
addressed to the question of whether the
proceedings and the assailed order are, for
any reason, null and void. The writ is not
ordinarily granted where the law provides for
other remedies in the regular course, and in
the absence of exceptional circumstances.
Moreover, habeas corpus should not be
granted in advance of trial (Mangila vs.
Pangilinan, supra)
(h) The inquiry on a writ of habeas corpus is
addressed, not to errors committed by a court
within its jurisdiction, but to the question of
whether the proceeding or judgment under
which the person has been restrained is a
complete nullity. The concern is not merely
whether an error has been committed in
ordering or holding the petitioner in custody,
but whether such error is sufficient to render
void the judgment, order, or process in
question. (Calvan vs. Court of Appeals, G.R.
No. 140823, October 3, 2000)
NOTE: The writ of habeas corpus and certiorari
may be ancillary to each other where necessary to
give effect to the supervisory power of the higher
courts. A writ of habeas corpus reaches the body
and the jurisdictional matters, but not the record.
A writ of certiorari reaches the record but not the
body. Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of
review. However, habeas corpus does not lie
where the 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, October
24, 1994)
Basic Criterion for the issuance of the writ
The most basic criterion for the issuance of the
writ, therefore, is that the individual seeking such
relief be illegally deprived of his freedom of
movement or placed under some form of illegal
restraint. If an individual's liberty is restrained via
some legal process, the writ of habeas corpus is
unavailing. Concomitant to this principle, the writ
of habeas corpus cannot be used to directly assail
a judgment rendered by a competent court or
tribunal which, having duly acquired jurisdiction,
was not deprived or ousted of this jurisdiction
through some anomaly in the conduct of the
487
proceedings. (In the Matter of the Petition for Writ Contents of Petition
of Habeas Corpus/Data v. De Lima, G.R. Nos.
215585 & 215768, September 8, 2020) Application for the writ shall be by petition signed
and verified either by the party for whose relief it
Who may grant the Writ is intended, or by some person on his behalf, and
shall set forth:
Court When Enforceability (a) That the person in whose behalf the
Petition may application is made is imprisoned or
be Filed restrained of his liberty;
(b) The officer or name of the person by whom
SC or any On any day Anywhere in the
he is so imprisoned or restrained; or, if both
Justice and at any time Philippines are unknown or uncertain, such officer or
thereof person may be described by an assumed
CA or any Instances Anywhere in the appellation, and the person who is served
Justice authorized by Philippines with the writ shall be deemed the person
thereof law intended;
(c) The place where he is so imprisoned or
RTC or On any day Only within the
restrained, if known;
any judge and at any time court’s judicial (d) A copy of the commitment or cause of
thereof district detention of such person, if it can be procured
(Rule 102, Sec. 2) without impairing the efficiency of the
remedy; or, if the imprisonment or restraint is
The writ issued by the RTC is enforceable within without any legal authority, such fact shall
appear (Rule 102, Sec. 3).
its territorial jurisdiction. While the writ issued by
the CA or SC is enforceable anywhere in the
Jurisdiction
Philippines. This provision is another exception to
the rule that processes of the RTC are enforceable
An application for a writ of habeas corpus may be
throughout the Philippines. (Regalado, Vol. II,
made through a petition filed before this Court or
10th ed.)
any of its members, the Court of Appeals (CA) or
any of its members in instances
Other Courts Empowered to issue Habeas
authorized by law, or the RTC or
Corpus
any of its presiding judges, In the absence
of all the RTC judges in a province or city, any
(1) In the absence of all the Regional Trial Judges
metropolitan trial judge, municipal trial judge, or
in a province or city, any Metropolitan Trial
Judge, Municipal Trial Judge, Municipal Circuit municipal circuit trial judge may hear and decide
Trial Judge may hear and decide petitions for petitions for a writ of habeas corpus in province or
a writ of habeas corpus in the province or city city where the absent RTC judges sit. (Cagasca-
where the absent Regional Trial Judges sit. Evangelista v. Bantag, G.R. No. 251954
(Sec. 35, B.P. 129) (Resolution), June 10, 2020)
(2) The Sandiganbayan may issue writ of habeas
corpus only if it is in aid of its appellate
jurisdiction. (Sec. 4, P.D. 1606, as amended
by RA 8249)
(3) Family Courts have exclusive jurisdiction to
issue writs of habeas corpus involving
custody of minors. (A.M. No. 03-04-04-SC)

488
Grant and Issuance of the Writ
General rule Exception
If it appears that In emergency cases, the
the writ should be judge may issue the writ
issued, the clerk of under his own hand and
court shall issue deputize any person to
the writ under the serve it.
court’s seal
(Rule 102, Sec. 5)
To Whom the writ is Directed
(a) In case of imprisonment or restraint by an
officer, the writ shall be directed to such
officer, and shall command him to have the
body of the person restrained of his liberty
before the court or judge designated in the
writ at the time and place therein specified.
(b) In case of imprisonment or restraint by a
person not an officer, the writ shall be
directed to an officer, and shall command him
to take and have the body of the person
restrained of his liberty before the court or
judge designated in the writ at the time and
place therein specified, and to summon the
person by whom he is restrained then and
there to appear before said court or judge to
show the cause of the imprisonment or
restraint. (Rule 102, Sec. 6)
Designation in the Writ
(a) The person to be produced should be
designated in the writ by his name, if known.
(b) If the name is not known, he may be
described or identified. (Rule 102, Sec. 7)
When writ Disallowed or Discharged
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
The discharge of the writ of habeas corpus shall
not be authorized upon showing that a person is:
(a) charged with an offense;
(b) convicted of an offense; or
(c) suffering imprisonment under lawful
judgment (Rule 102, Sec. 4)
Defect in Form of the Writ
No writ of habeas corpus can be disobeyed for
defect of form, if it sufficiently appears therefrom
in whose custody or under whose restraint the
party imprisoned or restrained is held and the
court or judge before whom he is to be brought.
(Sec. 9, Rule 102)
Habeas Corpus will not issue when Illegal
Restraint at Inception becomes Legal
The objective of the writ is to determine whether
the confinement or detention is valid or lawful. If
it is, the writ cannot be issued. What is to be
inquired into is the legality of a person's detention
as of, at the earliest, the filing of the application
for the writ of habeas corpus, for even if the
detention is at its inception illegal, it may, by
reason of some supervening events, such as the
instances mentioned in Section 4 of Rule 102, be
no longer illegal at the time of the filing of the
application.
Plainly stated, the writ obtains immediate relief for
those who have been illegally confined or
imprisoned without sufficient cause. The writ,
however, should not be issued when the custody
over the person is by virtue of a judicial process or
a valid judgment. (Ampatuan vs. Macaraig, G.R.
No. 182497, June 29, 2010)
489
Habeas Corpus may issue when a Valid
Restraint becomes thereafter Illegal or
when Special Circumstance so warrants
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, January 28,
2003)
A petition for habeas corpus to relieve a person
under the illegal warrant of arrest, and for
certiorari to assail the warrant of arrest may be
filed, and the judge may properly be made
respondent, even though the accused has been in
the physical custody of the Provincial warden, as
the judge has constructive custody of the accused.
For the illegal order and warrant of arrest issued
by the judge subsists and the accused is offered
no speedy, adequate remedy or appeal in the
ordinary course of law. The writ of habeas corpus,
although not designed to interrupt the orderly
administration of justice, can be invoked, in fine,
by the attendance of special circumstance that
requires immediate action. (Calvan vs. CA, G.R.
No. 140823, October 3, 2000)
When Habeas Corpus is not Available:
(a) As a general rule, habeas corpus does not lie
where the person alleged to be restrained of
his liberty is in the custody of an officer
under process issued by a court which had
jurisdiction to issue the same. (Salas v.
Bunyi-Medina, G.R. No. 251693, September
28, 2020)
(b) Restraint that is lawful and pursuant to a
court process cannot be inquired into through
habeas corpus (Mangila vs. Pangilinan, G.R.
No. 160739, 701 SCRA 355, July 17, 2013).
(c) For correcting errors in appreciation of facts
or appreciation of law. Where the trial court
had no jurisdiction over the cause, over the
person of the accused, and to impose the
penalty provided for by law, the mistake
committed by the trial court, in the
appreciation of the facts and/or in the
appreciation of the law cannot be corrected
by habeas corpus (Sotto vs. Director of
Prisons, G.R. No. L-18871, May 30, 1962)
(d) Once a person detained is duly charged in
court, he may no longer question his
detention through a petition for issuance of a
writ of habeas corpus. His remedy would be
to quash the information and/or the warrant
of arrest duly issued. The writ should not be
allowed after the party sought to be released
had been charged before any court. The term
“court” in this context includes quasi-judicial
bodies of governmental agencies authorized
to order the person’s confinement, like the
Deportation Board of the Bureau of
Immigration. (Go, Sr. Vs. Ramos, G.R. No.
167569, Fenandez vs. Jimmy Go, G.R. No.
167570, September 4, 2009)
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 be ultimately 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
490
 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 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).
(e) Moreover, a petition for habeas corpus is not
the appropriate remedy for asserting one's
right to bail. It cannot be availed of where the
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, supra).
(f) No court is empowered as a judicial authority
to compel a husband to live with his wife. The
case did not involve the right of a parent to
visit a minor child but the right of a wife to
visit the husband. In case the husband
refuses to see his wife for private reasons, he
is at liberty to do so without threat of any
penalty attached to the exercise of his right.
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).
(g) A counsel’s negligence in deliberately failing
to appear at the scheduled promulgation of
judgment as a sign of protest does not
warrant the granting of the petition for the
issuance of the writ of habeas corpus. (In Re:
The Writ of Habeas Corpus for Michael
Abellana vs. Hon. Paredes, G.R. No. 232006,
July 10, 2019)
(h) Restrictive custody is, at best, nominal
restraint which is beyond the ambit of habeas
corpus. It is neither actual nor effective
restraint that would call for the grant of the
remedy prayed for. It is a permissible
precautionary measure to assure the PNP
authorities that the police officers concerned
are always accounted for. (Ampatuan vs.
Macaraig, supra.)
Release renders Petition Moot and Academic
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).
The general rule in number of cases is that the
release of a detained person renders moot and
academic the petition for habeas corpus. The cited
general rule postulates that the release of the
detainees is an established fact and not in dispute,
and they do not constitute to be missing persons.
Where, however, there are grounds for grave
doubts about the alleged release of the detainees,
where the standard and prescribed procedure has
not been followed, then the burden of proving by
clear and convincing evidence the alleged release
is shifted to the soldiers. (Dizon vs. Eduardo, G.R.
No. L-59118, March 3, 1988)
491
Service of the Writ
(a) The writ may be served in any province by
the sheriff or other proper officer, or by a
person deputed by the court or judge.
(b) Service of the writ shall be made by leaving
the original with the person to whom it is
directed and preserving a copy on which to
make return of service.
(c) If that person cannot be found, or has not
the prisoner in his custody, then the service
shall be made on any other person having
or exercising such custody. (Rule 102, Sec.
7)
Execution of the Writ
(a) The officer to whom the writ is directed shall
convey the person so imprisoned or
restrained, and named in the writ before the
judge allowing the writ, or in case of his
absence or disability, before some other
judge of the same court, on the day specified
in the writ;
(b) Unless from sickness or infirmity of the
person directed to be produced, such person
cannot, without danger, be brought before
the court or judge, and the officer shall make
the due return of the writ, together with the
day and the cause of the caption and restraint
of such person according to the command
thereof. (Sec. 8, Rule 102)
Return
Who makes the return
(a) The officer or person by whom another
person is so imprisoned or restrained; and,
(b) In other cases, the person in whose custody
the prisoner is found (Rule 102, Sec.10)
Contents of the Return
The return must be in writing, addressed to the
court or judge before whom the writ is returnable,
and stating plainly and unequivocably:
(a) Whether one has or has not the party in his
custody or power, or under restraint;
(b) If he has the party in his custody or power,
or under restraint — the authority and the
true and whole cause thereof, set forth at
large, with a copy of the writ, order,
execution, or other process, if any, upon
which the party is held;
(c) If the party is in his custody or power or is
restrained by him, and is not produced — the
nature and gravity of the sickness or infirmity
of such party by reason of which he cannot,
without danger, be brought before the court
or judge;
(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).
The return or statement shall be signed by the
person who makes it; and shall also be sworn to
by him if the prisoner is not produced, and in all
other cases unless the return is made and signed
by a sworn public officer in his official capacity.
(Rule 102, Sec. 11).
When Return is Evidence or a Plea
(a) If it appears that the prisoner is in custody
under a warrant of commitment in pursuance
of law, the return shall be considered prima
facie evidence of the cause of restraint;
(b) If he is restrained of his liberty by an alleged
private authority, the return shall be
considered only as a plea of the facts therein
set forth, and the party claiming the custody
must prove such facts. (Sec. 13, Rule 102)
Hearing on Return and Adjournments
When the writ is returned before one judge, at a
time when the court is in session, he may forthwith
adjourn the case into the court, there to be heard
and determined.
492
The court or judge before whom the writ is
returned or adjourned must immediately proceed
to hear and examine the return, and such other
matters as are properly submitted for
consideration, unless for good cause shown the
hearing is adjourned, in which even the court or
judge shall make such order for the safekeeping of
the person imprisoned or restrained as the nature
of the case requires.
If the person imprisoned or restrained is not
produced because of his alleged sickness or
infirmity, the court or judge must be satisfied that
it is so grave that such person cannot be produced
without danger, before proceeding to hear and
dispose of the matter.
On the hearing the court or judge shall disregard
matters of form and technicalities in respect to any
warrant or order of commitment of a court or
officer authorized to commit by law. (Rule 102,
Sec. 12).
Appeal
On appeal in Habeas Corpus cases shall be taken
within 48 hours from notice of the judgment or
final order appealed from. (Rule 41, Sec. 3, as
amended by A.M. No. 01-1-03-SC)
Where to Appeal when Writ is Heard by a
Court other than the one which issued it
The return of the writ may be heard by a court
apart from that which issued the writ. Should the
court issuing the writ designate a lower court to
which the writ is made returnable, the lower court
shall proceed to decide the petition of habeas
corpus. By virtue of the designation, the lower
court “acquires the power and authority to
determine the merits of the petition for habeas
corpus. Therefore, the decision on the petition is a
decision appealable to the court that has appellate
jurisdiction over decisions of the lower court.
(Datukan Malang Salibo vs. The Warden, G.R. No.
197597, April 8, 2015)
Discharge
When the court or judge has examined into the
cause of caption and restraint of the prisoner, and
is satisfied that he is unlawfully imprisoned or
restrained, he shall forthwith order his discharge
from confinement.
Such discharge shall not be effective until a copy
of the order has been served on the officer or
person detaining the prisoner.
If the officer or person detaining the prisoner does
not desire to appeal, the prisoner shall be
forthwith released. (Sec. 15, Rule 102)
As a Post-Conviction Remedy
(a) 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. (Cagasca-
Evangelista v. Bantag, G.R. No. 251954
(Resolution), June 10, 2020)
(b) 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 prision correccional 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,
493
 in view of said amendment and the ruling in
People vs. Ladjaalam (G.R. Nos. 136149-51,
September 19, 2000).
(c) Where the law is amended, as when the
penalty is lowered. (Feria vs. CA, G.R. No.
122954, February 17, 2000)
(d) Where the results of post-conviction DNA
testing are favorable to the convict. (Sec. 10,
A.M. No. 06-11-5-SC)
(e) Enable the parents to regain custody of a
minor child, even if the latter be in the
custody of a third person of her own free will.
(Tijing vs. CA, G.R. No. 125901, March 8,
2001)
(f) In determining the constitutionality of a
statute. (People vs. Vera, G.R. No. L-45685,
November 16, 1937)
(g) When testing the legality of an alien’s
confinement and proposed expulsion from
the Philippines. (Lao Tang Bun vs. Fabre, G.R.
No. L-1673, October 22, 1948)
(h) In permitting an alien to land in the
Philippines. (Lim Cheng vs. Insular Collector
of Customs, G.R. No. 16404, September 13,
1920)
(i) In determining the legality of an extradition.
(United States vs. Rauscher, 7 S. Ct. 234, 30
L. Ed. 425, December 6, 1886).
Penalty for Refusing to Issue writ or for
Disobeying the same
Offender:
(1) A clerk of court who refuses to issue the writ
after allowance thereof and demand therefor;
or
(2) A person to whom a writ is directed, who:
(a) Neglects or refuses to obey; or
(b) Make return of the same according to
the command thereof; or
(c) Makes false return thereof; or
(3) Who, upon demand made by or on behalf of
the prisoner, refuses to deliver to the person
demanding, within 6 hours after the demand
therefore, a true copy of the warrant or order
of commitment
Penalty: Forfeit to the party aggrieved the sum of
Php 1,000.00, to be recovered in a proper action,
and may also be punished by the court or judge as
for contempt. (Sec. 16, Rule 102)
Effect of the Writ for Persons Discharged
A person who is set at liberty upon a writ of habeas
corpus shall not be again imprisoned for the same
offense, unless by the lawful order or process of a
court having jurisdiction of the cause or offense.
A person who knowingly, contrary to the
provisions of this rule, recommits or imprisons, or
causes to be committed or imprisoned, for the
same offense, or pretended offense, any person to
set at liberty, or knowingly aids or assists therein,
shall forfeit to the party aggrieved the sum of Php
1,000.00 to be recovered in a proper action,
notwithstanding any colorable pretense or
variation in the warrant of commitment, and may
also be punished by the court or judge granting
the writ as for contempt. (Rule 102, Sec. 17).
When Prisoner may be Removed from One
Custody to Another
General A person committed to prison, or
Rule in custody of an officer, for any
criminal matter, shall not be
removed therefrom into the
custody of another officer.
Exceptions (a) By legal process
(b) the prisoner to be delivered
to an inferior officer to carry
to jail
(c) By order of the proper court
or judge, the prisoner be
removed from one place to
another within the
Philippines for trial
(d) In case of fire, epidemic,
insurrection, or other
necessity or public calamity.
A person who, after such
commitment, makes signs, or
countersigns any order for such
removal contrary to this section,
494
 shall forfeit to the party petitioner must sign personally. (Sec. 4, A.M. No.
aggrieved the sum of Php 03-04-04-SC)
1,000.00, to be recovered in a
proper action. (Rule 102, Sec.
Summons and Personal Service to
18)
Respondent
1. WRIT OF HABEAS CORPUS IN RELATION
If the court is satisfied that the petition is sufficient
TO CUSTODY OF MINORS (A.M. NO. 03-04-
in form and substance, it shall direct the clerk of
04-SC)
court to issue summons, which shall be served
together with a copy of the petition personally on
This rule shall apply to petitions for custody of
the respondent. (Sec. 5, A.M. No. 03-04-04-SC)
minors and writs of habeas corpus in relation
thereto. The Rules of Court shall apply
Motion to Dismiss
suppletorily. (Sec. 1, A.M. No. 03-04-04-SC)

General Rule: A motion to dismiss the petition is

Who files the petition
not allowed.
A verified petition for the rightful custody of a
Exception: A motion to dismiss may be filed on the
minor may be filed by any person claiming such
ground of lack of jurisdiction over the subject
right. The party against whom it may be filed shall
matter or over the parties.
be designated as the respondent. (Sec. 2, A.M. No.
03-04-04-SC)
Any other ground that might warrant the dismissal
Where to file the Petition
of the petition may be raised as an affirmative
defense in the answer. (Sec. 6, A.M. No. 03-04-
The petition for custody of minors shall be filed
04-SC)
with the Family Court of the province or city where
the petitioner resides or where the minor may be
Verified Answer
found. (Sec. 3, A.M. No. 03-04-04-SC)

The respondent shall file an answer to the petition,

Contents of the Petition
personally verified by him, within five days after
service of summons and a copy of the petition.
The verified petition shall allege the following:
(Sec. 7, A.M. No. 03-04-04-SC)C
(a) The personal circumstances of the petitioner
and of the respondent;
(b) The name, age and present whereabouts of
the minor and his or her relationship to the Case study; Duty of Social Worker
petitioner and the respondent;
(c) The material operative facts constituting Upon the filing of the verified answer or the
deprivation of custody; and
expiration of the period to file it, the court may
(d) Such other matters which are relevant to the
order a social worker to make a case study of the
custody of the minor.
minor and the parties and to submit a report and
The verified petition shall be accompanied by a recommendation to the court at least three days
certificate against forum shopping, which the before the scheduled pre-trial. (Sec. 8, A.M. No.
03-04-04-SC)

495
Pre-trial
Notice of Mandatory Pre-trial
The pre-trial is mandatory.
Within 15 days after the filing of the answer or the
expiration of the period to file answer, the court
shall issue an order:
(1) Fixing a date for the pre-trial conference;
(2) Directing the parties to file and serve their
respective pre-trial briefs in such manner as
shall ensure receipt thereof by the adverse
party at least three days before the date of
pre-trial; and
(3) Requiring the respondent to present the
minor before the court.
(4) The notice of its order shall be served
separately on both the parties and their
respective counsels. (Sec. 9, A.M. No. 03-04-
04-SC)
Contents of Pre-trial Brief
The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to
enter into agreements that may be allowed by
law, indicating its terms;
(b) A concise statement of their respective claims
together with the applicable laws and
authorities;
(c) Admitted facts and proposed stipulations of
facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly
stating or describing its nature and purpose;
(f) The number and names of the witnesses and
their respective affidavits which shall serve as
the affiant's testimony on direct examination;
and
(g) Such other matters as the court may require
to be included in the pretrial brief.
Failure to file the pre-trial brief or to comply with
its required contents shall have the same effect as
failure to appear at the pre-trial. (Sec. 10, A.M. No.
03-04-04-SC)
Effect of Failure to Appear at the Pre-trial
(a) If the petitioner fails to appear personally at
the pre-trial, the case shall be dismissed,
unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the nonappearance of the
petitioner.
(b) If the respondent has filed his answer but fails
to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte.
The court shall then render judgment on the
basis of the pleadings and the evidence thus
presented. (Sec. 11, A.M. No. 03-04-04-SC)
What may be done at Pre-trial
At the pre-trial, the parties may agree on the
custody of the minor.
If the parties fail to agree, the court may refer the
matter to a mediator who shall have 5 days to
effect an agreement between the parties.
If the issue is not settled through mediation, the
court shall proceed with the pretrial conference,
on which occasion it shall consider such other
matters as may aid in the prompt disposition of the
petition. (Sec. 12, A.M. No. 03-04-04-SC)
Provisional Order Awarding Custody
After an answer has been filed or after expiration
of the period to file it, the court may issue a
provisional order awarding custody of the minor.
As far as practicable, the following order of
preference shall be observed in the award of
custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant
considerations, especially the choice of the
minor over 7 years of age and of sufficient
discernment, unless the parent chosen is
unfit;
496
(c) 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;
(d) The eldest brother or sister over twenty-one
years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over
twenty-one years of age, unless the former is
unfit or disqualified; or
(f) Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor. (Sec. 13, A.M. No. 03-
04-04-SC)
Factors to consider in Determining Custody
In awarding custody, the court shall consider the
best interests of the minor and shall give
paramount consideration to his material and moral
welfare. (Sec. 14, A.M. No. 03-04-04-SC)
Best Interest of the Minor
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 his
physical, psychological and emotional
development. It also means the least detrimental
available alternative for safeguarding the growth
and development of the minor. (Sec. 14, A.M. No.
03-04-04-SC)
Other facts to be Considered in Awarding
Custody
(a) Any extrajudicial agreement which the parties
may have bound themselves to comply with
respecting the rights of the minor to maintain
direct contact with the non-custodial parent
on a regular basis, except when there is an
existing threat or danger of physical, mental,
sexual or emotional violence which endangers
the safety and best interests of the minor;
(b) The desire and ability of one parent to foster
an open and loving relationship between the
minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the
person seeking custody or who has had any
filial relationship with the minor, including
anyone courting the parent;
(e) The nature and frequency of contact with
both parents;
(f) Habitual use of alcohol, dangerous drugs or
regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development and
growth of the minor; and
(i) The preference of the minor over seven years
of age and of sufficient discernment, unless
the parent chosen is unfit. (Sec. 14, A.M. No.
03-04-04-SC)
Temporary visitation rights
The court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court and
non-custodial parent or parents at least 5 days'
notice of any plan to change the residence of the
minor or take him out of his residence for more
than 3 days provided it does not prejudice the
visitation rights of the non-custodial parent or
parents. (Sec. 15, A.M. No. 03-04-04-SC)
Hold Departure Order
The minor child subject of the petition shall not be
brought out of the country without prior order
from the court while the petition is pending.
The court, motu proprio or upon application under
oath, may issue ex parte a hold departure order,
497
addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure
of the minor from the Philippines without the
permission of the court.
The Family Court issuing the hold departure order
shall furnish the Department of Foreign Affairs and
the Bureau of Immigration and Deportation of the
Department of Justice a copy of the hold departure
order within 24 hours from its issuance and
through the fastest available means of transmittal.
The hold departure order shall contain the
following information:
(a) The complete name (including the middle
name), the date and place of birth, the
nationality and the place of last residence of
the person against whom a hold departure
order has been issued or whose departure
from the country has been enjoined;
(b) The complete title and docket number of the
case in which the hold departure order was
issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party
against whom a hold departure order has
been issued or whose departure from the
country has been enjoined.
The court may recall the hold departure order
motu proprio, or upon verified motion of any of the
parties after summary hearing, subject to such
terms and conditions as may be necessary for the
best interest of the minor. (Sec. 16, A.M. No. 03-
04-04-SC)
Protection Order
The court may issue a Protection Order requiring
any person:
(a) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party, or
from any other specific place designated by
the court;
(b) To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody
of the minor is awarded;
(c) To refrain from acts of commission or
omission that create an unreasonable risk to
the health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods;
(e) To permit a designated party to enter the
residence during a specified period of time in
order to take personal belongings not
contested in a proceeding pending with the
Family Court; and
(f) To comply with such other orders as are
necessary for the protection of the minor.
(Sec. 17, A.M. No. 03-04-04-SC)
Judgment
After trial, the court shall render judgment
awarding the custody of the minor to the proper
party considering the best interests of the minor.
If it appears that both parties are unfit to have the
care and custody of the minor, the court may
designate either:
1. The paternal or maternal grandparent of the
minor; or
2. His oldest brother or sister; or
3. Any reputable person to take charge of such
minor; or
4. Commit him to any suitable home for children.
(Sec. 18, A.M. No. 03-04-04-SC)
Tender-Age Presumption
In case of separation of the parents, parental
authority shall be exercised by the parent
designated by the court. The court shall take into
account all relevant considerations, especially the
choice of the child over seven years of age, unless
the parent chosen is unfit.
498

No child under seven years of age shall be
separated from the mother, unless the court finds
compelling reasons to order otherwise. (Art. 213,
Family Code)
The word "shall" in Article 213 of the Family Code
has been held to connote a mandatory character.
As general rule, a mother is to be preferred in
awarding custody of children under the age of
seven. The caveat in Article 213 of the Family Code
cannot be ignored, except when the court finds
cause to order otherwise.
The so-called "tender-age presumption" under
Article 213 of the Family Code may be overcome
only by compelling evidence of the mother’s
unfitness. The mother has been declared
unsuitable to have custody of her children in one
or more of the following instances: neglect,
abandonment, unemployment, immorality,
habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction
with a communicable disease. (Pablo-Gualberto
vs. Gualberto, G.R. No. 154994, June 28, 2005)
Amount of Support
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. In
determining the amount of support, the court may
consider the following factors:
1. The financial resources of the custodial and
non-custodial parent and those of the minor;
2. The physical and emotional health, special
needs, and aptitude of the minor;
3. The 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. (Sec. 18, A.M. No. 03-04-
04-SC)
Temporary Custody to Non-custodial Parent
The court may also 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. (Sec. 18, A.M. No. 03-
04-04-SC)
Judgment on the Issue of custody is Res
Judicata on a Petition for Habeas Corpus
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)
Appeal
No appeal from the decision shall be allowed
unless the appellant has filed a motion for
reconsideration or new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the decision
by filing a Notice of Appeal within 15 days from
notice of the denial of the motion for
reconsideration or new trial and serving a copy
thereof on the adverse parties. (Sec. 19, A.M. No.
03-04-04-SC)
Petition for Writ of Habeas Corpus
Purpose of Habeas Corpus in Custody Case
It is settled that habeas corpus may be resorted to
in cases where “the rightful custody of any person
is withheld from the person entitled thereto.” In
custody cases involving minors, the writ of habeas
corpus is prosecuted for the purpose of
499
determining the right of custody over a child.
(Masbate vs. Relucio, G.R. No. 253498, July 30,
2018)
Requisites
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, supra)
Where to file Petition
The petitioner shall file a verified petition for a writ
of habeas corpus involving custody of minor with:
(a) Family Court: The writ shall be enforceable
within its judicial region to which the Family
Court belongs.
(b) Regular Court: The writ shall be enforceable
in the judicial region where they belong
i. In the absence of the presiding judge
of the Family Court, provided,
however, that the regular court shall
refer the case to the Family Court as
soon as its presiding judge returns to
duty.
ii. In places where there are no Family
Courts.
(c) Supreme Court, Court of Appeals, or with any
of its members: The writ shall be enforceable
anywhere in the Philippines. (Sec. 20, A.M.
No. 03-04-04-SC)
Where Writ is Returnable
The writ may be made returnable a Family Court
or to any regular court within the region where the
petitioner resides or where the minor may be
found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the
issue on custody of minors. The appellate court, or
the member thereof, issuing the writ shall be
furnished a copy of the decision. (Sec. 20, A.M.
No. 03-04-04-SC)
Writs issued by the Family Court and the
Regular Courts enforceable only within their
Judicial Regions
Considering that the writ is made enforceable
within the judicial region, petitions for the issuance
of the writ of habeas corpus, whether they be filed
under Rule 102 of the Rules of Court or pursuant
to Section 20 of A.M. No. 03-04-04-SC, may
therefor be filed with any of the proper RTCs
within the judicial region where enforcement
thereof is sought. (Tujan-Militante vs. Cada-
Deapera, G.R. No. 210636, July 28, 2014)
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. To
allow the Court of Appeals to exercise jurisdiction
over the petition for habeas corpus involving a
minor child whose whereabouts are uncertain and
transient will not result in one of the situations that
the legislature seeks to avoid. First, the welfare of
the child is paramount. Second, the ex-parte
nature of habeas corpus proceedings will not result
in disruption of the child’s privacy and emotional
well-being; whereas to deprive the appellate court
of jurisdiction will result in the evil sought to be
avoided by the legislature: the child’s welfare and
well-being will be prejudiced. (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
500
custody of minors is involved. (Madriñan vs.
Madriñan, G.R. No. 159374, July 12, 2007)
Summons Not Required
Service of summons, to begin with, is not required
in a habeas corpus petition, be it under Rule 102
of the Rules of Court or A.M. No. 03-04-04-SC. As
held in Saulo v. Cruz, a writ of habeas corpus plays
a role somewhat comparable to a summons, in
ordinary civil actions, in that, by service of said
writ, the court acquires jurisdiction over the
person of the respondent. (Tujan-Militante vs.
Cada-Deapera, supra)
Confidentiality of proceedings
The hearings on custody of minors may, at the
discretion of the court, be closed to the public and
the records of the case shall not be released to
non-parties without its approval. (Sec. 21, A.M.
No. 03-04-04-SC)
However, the petition may be filed with the regular
court in the absence of the presiding judge of the
Family Court, provided, however, that the regular
court shall refer the case to the Family Court as
soon as its presiding judge returns to duty. (Sec.
20, A.M. No. 03-04-04-SC)
D. CHANGE OF NAME (RULE 103)
Person’s name
For all practical and legal purposes, a man’s name
is the designation by which he is known and
called in the community in which he lives and is
best known. It is defined as the word or
combination of words by which a person is
distinguished from other individuals and, also,
as the label or appellation which he bears for the
convenience of the world at large addressing him,
or in speaking of or dealing with him.
The names of individuals usually have two parts:
(1) the given name or proper name, and
- is that which is given to the individual at
birth or baptism, to distinguish him from
other individuals.
- may be freely selected by the parents for
the child
(2) the surname or family name
- is that which identifies the family to
which he belongs and is continued from
parent to child
- to which the child is entitled is fixed by
law (Santos v. Republic, G.R. No. 250520,
May 5, 2021)
A name is said to have the following
characteristics:
(1) It is absolute, intended to protect the
individual from being confused with others.
(2) It is obligatory in certain respects, for nobody
can be without a name.
(3) It is fixed, unchangeable, or immutable, at
least at the start, and may be changed only
for good cause and by judicial proceedings.
(4) It is outside the commerce of man, and,
therefore, inalienable, and intransmissible by
the inter vivos or mortis causa.
(5) It is imprescriptible. (Petition for Change on
Name of Julian Lin Carulasan Wang, G.R.
159966, March 30, 2005)
Statutory basis of Rule 103
Article 376 of the Civil Code which provides that
no person can change his name and surname
without judicial authority. (Riguera, Primer-
Reviewer on Remedial Law, Vol. 2, 2022 edition,
p. 225)
As stated there is a need for judicial authority
before any person can change his or her name.
On the other hand, Article 412 provides that
judicial authority is also necessary before any
entry in the civil register may be changed or
corrected. (Republic v. Felix, G.R. No. 203371,
June 30, 2020)
501
Coverage of Rule 103
Rule 103 covers principally the change of surname
and middle name. For change of first name and/or
nickname, the principal governing law is R.A. No.
9048 which authorizes the local civil registrar or
the consul general to effect such change.
(Riguera, Primer-Reviewer on Remedial Law, Vol.
2, 2022 edition, p. 225)
The only name that may be changed is the true or
official name recorded in the civil register. That
name in the civil register, for legal purposes, is his
real name. And correctly so, because the civil
register is an official record of the civil status of
persons. (Jesus Ng Yao Siong vs. Republic, G.R.
No. L-20306, March 31, 1966)
The "change of name" contemplated under Article
376 and Rule 103 must not be confused with
Article 412 and Rule 108. A change of one’s name
under Rule 103 can be granted, only on grounds
provided by law. In order to justify a request
for change of name, there must be a proper and
compelling reason for the change and proof that
the person requesting will be prejudiced
by the use of his official name. To assess the
sufficiency of the grounds invoked therefor, there
must be adversarial proceedings. In petitions for
correction, only clerical, spelling, typographical
and other innocuous errors in the civil registry
may be raised. (Republic v. Felix, G.R. No. 203371,
June 30, 2020)
A petition for change of name is a remedy allowed
under our law only by way of exception to the
mandatory of the Civil Code on the use of
surnames. The law fixes the surnames that may
be used by a person, at least inceptively,
and it may be changed only upon judicial
permission granted in the exercise of sound
discretion. (Santos v. Republic, G.R. No. 250520,
May 5, 2021)
Who may file the Petition
The petition for change of name must be filed by
the person desiring to change his/her name, even
if it may be signed and verified by some other
person in his behalf. (Republic vs. Marcos, G.R.
No. L-31065, February 15, 1990)
A Rule 103 petition stands on one's own personal
right to bring an action to change his name based
on reasonable grounds, e.g., to avoid confusion,
to change a ridiculous name or one tainted with
dishonor, or to change a name that is very
difficult to pronounce. (Ordoña v. Local Civil
Registrar of Pasig City, G.R. No. 215370,
November 9, 2021)
Section 1 of Rule 103, in specifying the parties who
may avail of said remedy, uses the generic term
"persons" to signify all natural persons regardless
of status. (Republic vs. Court of Appeals, G.R. No.
97906, May 21, 1992)
Where to file the Petition
A person desiring to change his name shall present
the petition to the Regional Trial Court in which he
resides. (Rule 103, Sec. 1; Santos v. Republic,
G.R. No. 250520, May 5, 2021)
Contents of Petition
A petition for change of name shall be signed and
verified by the person desiring his name changed,
or some other person on his behalf, and shall set
forth:
(a) That the petitioner has been a bona fide
resident of the province where the petition is
filed for at least 3 years prior to the date of
such filing;
(b) The cause of which the change of the
petitioner’s name is sought;
(c) The name asked for. (Rule 103, Sec. 2;
Santos v. Republic, G.R. No. 250520, May 5,
2021)
502

Contents of the Title of the Petition
In a petition for change of name the title of the
petition should include:
(1) The applicant's real name; (Republic vs. Zosa,
G.R. No. L-48762, September 12, 1988)
(2) the alias or other name of petitioner;
(3) the name he seeks to adopt; and
(4) the cause for the change of name, all of
which were lacking in the petition filed before
the RTC. (Almojuela v. Republic, G.R. No.
211724 (Resolution), August 24, 2016)
Grounds for change of name
Jurisprudence has recognized, inter alia, the
following grounds as being sufficient to warrant
a change of name:
(a) when the name is ridiculous, dishonorable
or extremely difficult to write or pronounce;
(b) when the change results as a legal
consequence of legitimation or adoption;
(c) when the change will avoid confusion;
(d) when one has continuously used and been
known since childhood by a Filipino name
and was unaware of alien parentage;
(e) when the change is based on a sincere
desire to adopt a Filipino name to erase
sign of former alienage, all in good faith and
without prejudice to anybody; and
(f) when the surname causes embarrassment
and there is no showing that the desired
change of name was for a fraudulent
purpose or that the change of name would
prejudice public interest. (Santos v.
Republic, G.R. No. 250520, May 5, 2021)
The above stated grounds are not exclusive. The
matter of whether to grant a petition for change
of name is left to the sound discretion of the court.
(Oshita v. Republic, G.R. No. L-21180, 31 March
1967)
A change of one's name under Rule 103 can be
granted, only on grounds provided by law. In order
to justify a request for change of name, there must
be a proper and compelling reason for the change
and proof that the person requesting will be
prejudiced by the use of his official name. To
assess the sufficiency of the grounds invoked
therefor, there must be adversarial proceedings.
(Bartolome v. Republic, G.R. No. 243288, August
28, 2019)
Insufficient Grounds for The Change of
Name:
(a) Separation of spouses (Art. 372, NCC);
(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)
(e) The only reason advanced by the petitioner
for dropping his middle name is
convenience. (Petition for Change on Name
of Julian Lin Carulasan Wang, G.R. 159966,
March 30, 2005)
Surname and Change of Name
Legitimate and Legitimated Children
A legitimate and legitimated child shall principally
use the surname of the father. (Art. 364, NCC)
Legitimate and legitimated children shall have the
right to bear the surnames of their father and
mother. (Art. 174 and 149, Family Code)
Legitimate children, has the right to bear the
surnames of the father and the mother, in
conformity with the provisions of the Civil Code
on Surnames, and it is so provided by law
that legitimate and legitimated children shall
principally use the surname of the father. (Alanis
III v. Court of Appeals, G.R. No. 216425,
November 11, 2020)
503
“Principally” does not mean “exclusively”
under Art. 364 of the Civil Code
Indeed, the provision states that legitimate
children shall "principally" use the surname of the
father, but "principally" does not mean
"exclusively." There is no legal obstacle if a
legitimate or legitimated child should choose to
use the surname of its mother to which it is equally
entitled. (Alfon vs. Republic, G.R. No. L-51201,
May 29, 1908; Alanis III vs. Court of Appeals, G.R.
No. 216425, November 11, 2020)
Adopted Children
An adopted child shall bear the surname of the
adopter. (Art. 365, NCC)
Upon issuance of the decree of adoption, the
change of the adoptee's surname shall follow that
of the adopter as a natural and necessary
consequence of a grant of adoption, even if not
specifically prayed for. (Santos vs. Republic, G.R.
No. 250520, May 5, 2021)
A decree of adoption grants the adoptee the right
to use the adopters surname, if change of first
name is so desired. It must be prayed and alleged
in the petition of adoption (A.M. 02-6-02-SC, Sec.
16)
Illegitimate Children
Illegitimate children shall use the surname of their
mother. However, illegitimate children may use
the surname of their father if their filiation has
been expressly recognized by the father through:
(a) The record of birth appearing in the civil
register;
(b) or when an admission in a public document
or private handwritten instrument is made by
the father. (Art. 176, NCC, as amended by
R.A. No. 9255)
Under Article 176 of the Family Code of the
Philippines (Family Code), as amended by Republic
Act No. 9255, illegitimate children shall use the
surname and be under the parental authority of
their mother, and shall be entitled to support in
conformity with the Family Code; however,
illegitimate children may use the surname
of their father if their filiation has been expressly
recognized by the father through the record of
birth appearing in the civil register, or when an
admission in a public document or private
handwritten instrument is made by the father.
(Ordoña vs. Local Civil Registrar of Pasig City, G.R.
No. 215370, November 9, 2021)
Middle Name
Middle names serve to identify the maternal
lineage or filiation of a person as well as further
distinguish him from others who may have the
same given name and surname as he has.
Accordingly, the registration in the civil registry of
the birth of such individuals requires that the
middle name be indicated in the certificate. The
registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a given
or proper name, a middle name, and a surname.
(Petition for Change on Name of Julian Lin
Carulasan Wang, G.R. 159966, March 30, 2005)
Order for Hearing
If the petition filed is sufficient in form and
substance, the court shall issue an order
containing:
(1) A recitation of the the purpose of the petition;
(2) The date and place of hearing;
(3) A direction that a copy of the order be
published before the hearing at least once a
week for 3 successive weeks in some
newspaper of general circulation published in
the province, as the court shall deem best.
504
The date set for the hearing shall not be within 30
days prior to an election nor within 4 months after
the last publication of the notice. (Rule 103, Sec.
3)
Order Published must contain Correct
Information
For the Publication to be valid and effective, the
published order should reproduce the title of the
petition and should contain correct information as
to:
(1) The name or names of the applicant;
(2) The cause for the changed name; and
(3) The new name asked for. (Republic vs. Zosa,
G.R. No. L48762, supra)
Jurisdictional Defects in the Petition, Order
and Publication
(1) Failure to include the true name of the party
whose name is sought to be changed, in the
title of the petition and of the notices
published in connection therewith, precludes
the court from obtaining jurisdiction. (In the
Matter of the Change of Name of
Hermogenes Diangkinay, G.R. No. L-29850,
June 30, 1972).
(2) Failure to include the name sought to be
adopted in the title of the petition, and in the
notices published in the newspapers, is a
substantial jurisdictional infirmity. (In the
Matter of the Change of Name of
Hermogenes Diangkinay, supra).
(3) The defect in the petition and the order, as to
the spelling of the name of the petitioner, is
substantial, because it did not correctly
identify the party to said proceedings. (Jayme
S. Tan vs. Republic, G.R. No. L-16384, April
26, 1962).
(4) The non-inclusion of all the names and/or
aliases of the applicant in the caption of the
order or the title of the petition defeats the
very purpose of the required publication.
(Republic vs. Tañada, L-31563, November 29,
1971)
Change of Name Proceeding is Action in
Rem
The proceeding under Rule 103 is also an action in
rem which requires publication of the order issued
by the court to afford the State and all other
interested parties to oppose the petition. When
complied with, the decision binds not only the
parties impleaded but the whole world. As notice
to all, publication serves to indefinitely bar all who
might make an objection. "It is the publication of
such notice that brings in the whole world as a
party in the case and vests the court with
jurisdiction to hear and decide it." (Republic vs.
Mercadera, G.R. No. 186027, December 8, 2010)
Opposition to the Petition
(1) Any interested person may appear at the
hearing and oppose the petition.
(2) The Solicitor General or the proper provincial
or city fiscal shall appear on behalf of the
Government of the Republic. (Rule 103, Sec.
4)
Judgment
Upon satisfactory proof in open court on the date
fixed in the order that:
(1) Such order has been published as directed;
and
(2) That the allegations of the petition are true
The court shall, if proper and reasonable cause
appears for changing the name of the petitioner,
adjudge that such name be changed in accordance
with the prayer of the petition. (Rule 103, Sec. 5)
Service of Judgment
Judgements or orders rendered in connection with
this rule shall be furnished to the civil registrar of
the municipality or city where the court issuing the
505
same is situated, who shall forthwith enter the
same in the civil register. (Rule 103, Sec. 6)
E. CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY (RULE
108)
Statutory basis of Rule 108
The cancellation or correction of entries in the civil
registry is governed by Article 412 of the Civil
Code, which states that “no entry in a civil register
shall be changed or corrected, without a judicial
order” Rule 108 of the Rules of Court
supplements Article 412 by providing a special
remedial proceeding by which entries in the civil
registry may be judicially cancelled or corrected.
Rule 108 states the jurisdictional and procedural
requirements that must be complied with before a
judgment, authorizing the cancellation or
correction, may be annotated in the civil registry.
(Johansen v. Office of the Civil Registrar General,
G.R. No. 256951, November 29, 2021)
Correction of entries covered under 108
In Republic v, Cagandahan, G.R. No. 166676, 12
September 2008, it was held that R.A. No. 9048
removed from the ambit of R108 correction of
clerical or typographical errors and that Rule 108
applies only to substantial changes or corrections
of entries in the civil register. It is opined that it is
more precise to state that Rule 108 is still available
for correction of clerical or typographical errors,
albeit as a secondary recourse. (Riguera, Primer-
Reviewer on Remedial Law, Vol. 2, 2022 edition,
p. 237)
Nature of Proceedings
A petition for correction is an action in rem. The
decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding
is validated essentially through publication.
(Republic vs. Kho, G.R. No. 170340, June 29,
2007)
Proceedings for cancellation or correction of
entries in the Civil Registry may be:
Summary When the correction sought to
be made is a mere clerical error
(modified by R.A. No. 9048, as
amended)
Adversarial Where the rectification affects
civil status, citizenship or
nationality of a party, it is
deemed substantial, or any
other substantial change
(Eleosida vs. Civil Registrar of
Quezon City, G.R. No. 130277,
May 9, 2002; Lee vs. Court of
Appeals, G.R. No. 118385,
October 11, 2001)
Appropriate Adversary Suit or Proceeding
The Court adheres to the principle that even
substantial errors in a civil registry may be
corrected and the true facts established provided
the parties aggrieved by the error avail themselves
of the appropriate adversary proceeding.
(Republic v. Valencia, G.R. No. L-32181, March 5,
1986)
In the adversarial proceeding regarding
substantial correction of error, the trial court must
conduct 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. (Ordoña v. Local Civil Registrar of
Pasig City, G.R. No. 215370, November 9, 2021)
When all the procedural requirements under Rule
108 are thus followed, the appropriate adversary
proceeding necessary to effect substantial
corrections to the entries of the civil register is
506
satisfied. (Republic vs. Kho, G.R. No. 170340, June
29, 2007)
In relation to change or correction of an entry in
the birth certificate, substantial refers to that
which establishes, or affects the substantive right
of the person on whose behalf the change or
correction is being sought. Thus, changes which
may affect the civil status from legitimate to
illegitimate, as well as sex, civil status, or
citizenship of a person are substantial in character.
(Republic vs. Maligaya, G.R. No. 233068,
November 9, 2020)
Effect of passage of R.A. No. 9048
(1) It is to remove from Rule 108 the correction
or changing of such [clerical or typographical]
errors in entries of the civil register. The
scope of Rule 108 include only the substantial
changes and corrections in entries of the civil
register.
R.A. No. 9048 now embodies the summary
procedure while Rule 108 is the appropriate
adversary proceeding. (Lee vs. Court of
Appeals, supra)
(2) The intent and effect of the law is to exclude
the change of first name from the coverage
of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court, until and
unless an administrative petition for change
of name is first filed and subsequently denied.
In sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial. (Silverio
vs. Republic, G.R. No. 174689, October 19,
2007)
The local civil registrar has primary, not
exclusive, jurisdiction over such petitions for
correction of clerical errors and change of first
name or nickname. (Re: Final Report on the
Judicial Audit Conducted at the RTC Br. 67,
Paniqui, Tarcla, A.M. No. 06-7-414-RTC,
October 19, 2007)
RA 9048 now governs the change of first name. It
vests the power and authority to entertain
petitions for change of first name to the city or
municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. The intent and effect of the
law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court,until and unless an
administrative petition for change of name is first
filed and subsequently denied. It likewise lays
down the corresponding venue, form and
procedure. In sum, the remedy and the
proceedings regulating change of first name are
primarily administrative in nature, not judicial.
(Silverio v. Republic, G.R. No. 174689, October 19,
2007)
Who may file the Petition; Venue
Any person interested in any act, event, order or
decree concerning the civil status of persons which
has been recorded in the civil register, may file a
verified petition for the cancellation or correction
of any entry relating thereto, with the Regional
Trial Court of the province where the
corresponding civil registry is located. (Rule 108,
Sec. 1)
Improper venue
Venue is procedural, not jurisdictional, and hence,
may be waived. Venue is the place of trial or
geographical location in which an action or
proceeding should be brought. In civil cases,
venue is a matter of procedural law. A party's
507
objections to venue must be brought at the
earliest opportunity either in a motion to dismiss
or in the answer; otherwise, the objection shall be
deemed waived. When the venue of a civil action
is improperly laid, the court cannot motu
proprio dismiss the case. (Cabrera v. Philippine
Statistics Authority, G.R. No. 241369, June 3,
2019)
Entries Subject to Correction or Cancellation
(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. (Rule 108, Sec. 2)
Rule 108 may cancel an entry in a certificate
of marriage
Respondent sought, not the nullification of
marriage as there was no marriage to speak of,
but the correction of the record of such marriage
to reflect the truth as set forth by the evidence. In
allowing the correction of the subject certificate of
marriage by cancelling the wife portion thereof,
the trial court did not, in any way, declare the
marriage void as there was no marriage to speak
of. (Republic vs. Olaybar, G.R. No. 189538,
February 10, 2014)
Recognition of Judgment may be made
under a Rule 108 Proceeding
Since the recognition of a foreign judgment only
requires proof of fact of the judgment, it may be
made in a special proceeding for cancellation or
correction of entries in the civil registry under The
recognition of the foreign divorce decree may be
made in a Rule 108 proceeding itself, as the object
of special proceedings (such as that in Rule 108 of
the Rules of Court) is precisely to establish the
status or right of a party or a particular fact."
(Fujiki vs. Marinay, G.R. No. 196049, June 26,
2013)
Rule 108 Proceeding cannot nullify a
marriage nor rule on legitimacy and filiation
In a special proceeding for correction of entry
under Rule 108, the trial court has no jurisdiction
to nullify marriages and rule on legitimacy and
filiation. (Braza vs. Civil Registrar of Negros
Occidental, G.R. No. 181174, December 4, 2009)
Sex change or Sex reassignment NOT within
the ambit of Rule 108
Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term
"sex" as used then is something alterable through
surgery or something that allows a post-operative
male-to-female transsexual to be included in the
category "female." (Silverio v. Republic, G.R. No.
174689, October 19, 2007)
Parties to be impleaded
(a) The Civil Registrar concerned; and
(b) All persons who have or claim any interest
which would be affected thereby. (Sec. 3,
Rule 108)
General Rule Exception
What is clear is the Non-impleading,
mandatory directive however, as party-
under Section 3 of Rule respondent of one
108 to implead the civil who is inadvertently
registrar and the parties left out or is not
who would naturally and established to be
legally be affected by the known by the
508
 grant of a petition for petitioner to be that given to the persons “named in the petition”
correction or cancellation affected by the made by impleading them and giving them
of entries. The failure to grant of the petition personal notice. The second (which is through
implead the parties who or actually
publication) is that given to the other persons not
would naturally and participates in the
named in the petition but nonetheless may be
legally be affected by the proceeding is
grant of the petition notified through considered interested or affected parties, such as
would render the publication. creditors (Republic vs. Coseteng-Magpayo, supra).
proceedings and (Republic vs.
judgment VOID. Coseteng-Magpayo, While there may be cases where the Court held
(Almojuela vs. Republic, G.R. No. 189476, that the failure to implead and notify the affected
G.R. No. 211724, August February 2, 2011)
or interested parties may be cured by the
24, 2016)
publication of the notice of hearing, earnest efforts
were made by petitioners in bringing to court all
possible interested parties. Such failure was
likewise excused where the interested parties
themselves initiated the corrections proceedings;
Notice and Publication
when there is no actual or presumptive awareness
of the existence of the interested parties; or when
Upon the filing of the petition, the court shall by
a party is inadvertently left out. (Republic vs. Uy,
an order:
(1) Fix the time and place for the hearing of the
G.R. No. 198010, August 12, 2013)
same; and
(2) Cause reasonable notice thereof to be given Change of Name may be had under Rule 108
to the persons named in the petition. when its jurisdictional requirements are
satisfied
The court shall cause the order to be published
once a week for 3 consecutive weeks in a While the jurisdictional requirements of Rule 103
newspaper of general circulation in the province. (which governs petitions for change of name)
(Rule 108, Sec. 4) were not complied with, observance of the
provisions of Rule 108 suffices to effect the
Opposition correction sought for. (Republic vs. Kho, supra)

The civil registrar and any person having or
claiming any interest under the entry whose
cancellation or correction is sought may file an
opposition under the following periods:
a) Within 15 days from notice of the petition; or
b) Within 15 days from the last date of publication
of the notice. (Rule 108, Sec. 5)
Twin Notice Requirement
A reading of Sections 4 and 5 of Rule 108 readily
shows that the rule mandates two sets of notices
to different potential oppositors. The first notice is
Expediting proceedings and Preliminary
Injunction
The court in which the proceeding is brought may
make such orders expediting the proceedings, and
may also grant preliminary injunction for the
preservation of the rights of the parties pending
such proceedings. (Rule 108, Sec. 6)
Order

509
After hearing, the court may either dismiss the
petition or issue an order granting the cancellation
or correction prayed for.
In either case, a certified copy of the judgment
shall be served upon the civil registrar concerned
who shall annotate the same in his record. (Rule
108, Sec. 7)
F. CLERICAL ERROR LAW (R.A. NO. 9048, AS
AMENDED BY R.A. NO. 10172)
Clerical or Typographical error
Where it is patently clear that there was a clerical
or typographical error or mistake in the entry
which can be corrected or changed by the
concerned city or municipal civil registrar or consul
general in accordance with the provisions of this
Act and its implementing rules and regulations.
(Sec. 1, R.A. No. 9048, as amended by R.A. No.
10172; Republic v. Sali, G.R. No. 206023, April 3,
2017)
Sex reassignment surgery is not a ground to
change a person’s first name and gender in
the Civil Registry

Refers to a mistake committed in the performance
of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless
and innocuous, such as misspelled name or
misspelled place of birth, mistake in the entry of
day and month in the date of birth or the sex of
the person or the like, which is visible to the eyes
or obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records. (Sec. 2[3], R.A. No.
9048, as amended by R.A. No. 10172)
Coverage of R.A. No. 9048, as amended by
R.A. No. 10172
A change of name does not alter one's legal
capacity or civil status. 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.
"Status" refers to the circumstances affecting the
legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age,
nationality and his family membership. The status
of a person in law includes all his personal qualities
and relations, more or less permanent in nature,
not ordinarily terminable at his own will.

General Rule Exception
No entry in a civil (a) clerical or
register shall be typographical errors;
changed or (b) change of first name
corrected without or nickname;
a judicial order (c) change in the day
(Art. 412, NCC) and month in the
date of birth;
(d) change of the sex of
a person. (Sec. 1,
R.A. No. 9048, as
amended by R.A. No.
10172)
Under the Civil Register Law, a birth certificate is
a historical record of the facts as they existed at
the time of birth. Thus, the sex of a person is
determined at birth, visually done by the birth
attendant (the physician or midwife) by examining
the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the
determination of a person's sex made at the time
of his or her birth, if not attended by error, is
immutable. (Silverio v. Republic, G.R. No. 174689,
October 19, 2007)

510
When Change of Sex and corresponding
Change of name allowed
Ultimately, we are of the view that where the
person is biologically or naturally intersex the
determining factor in his gender classification
would be what the individual, like respondent,
having reached the age of majority, with good
reason thinks of his/her sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent,
is fixed.
The trial court's grant of respondent's change of
name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering
the consequence that respondent's change of
name merely recognizes his preferred gender, we
find merit in respondent's change of name. Such a
change will conform with the change of the entry
in his birth certificate from female to male.
(Republic vs. Cagandahan, G.R. No. 166676,
September 12, 2008)
Entries which cannot be changed
No correction must involve the change of:
(a) Nationality
(b) Age
(c) Status of the petitioner (Sec. 2[3], R.A. No.
9048, as amended)
Petition for Change or Correction
Available only Once
All petitions for the correction of clerical or
typographical errors and/or change of first names
or nicknames may be availed of only once. (Sec.
3, R.A. No. 9048, as amended)
Who may file the Petition
Any person having direct and personal interest in
the correction of a clerical or typographical error
in an entry and/or change of first name or
nickname in the civil register may file, in person, a
verified petition. (Sec. 3, R.A. No. 9048, as
amended)
(1) The petitioner must be of legal age.
(2) A person is considered to have a direct and
personal interest:
(a) he is the owner of the record, or
(b) the owner’s spouse, children, parents,
brothers, sisters, grandparents,
guardian, or
(c) any other person duly authorized by law
or by the owner of the document sought
to be corrected.
When the person is a minor or physically or
mentally incapacited, the petition may be filed on
his behalf by his spouse, or any of his children,
parents, brothers, sisters, grandparents,
guardians, or person duly authorized by law. (Rule
3, IRR of R.A. No. 9048)
Where to file the Petition
(a) The petitioner shall file his petition with the
local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept.
(b) In case the petitioner has already migrated to
another place in the country and it would not
be practical for such party, in terms of
is transportation expenses, time and effort to
appear in person before the local civil
registrar keeping the documents to be
corrected or changed, the petition may be
filed, in person, with the local civil registrar of
the place where the interested party is
presently residing or domiciled.
(c) Citizens of the Philippines who are presently
residing or domiciled in foreign countries may
file their petition, in person, with the nearest
511
 Philippine Consulates. (Sec. 3, R.A. No. 9048,
as amended)
Grounds to file the Petition
The petition for change of first name or nickname
may be allowed in any of the following cases:
1. The petitioner finds the first name or nickname
to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
2. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community;
or
3. The change will avoid confusion. (Sec. 4, R.A.
No. 9048, as amended)
Form and Contents of the Petition
The petition for correction of a clerical or
typographical error, or for change of first name or
nickname, shall be in the form of an affidavit,
subscribed and sworn to before any person
authorized by law to administer oaths.
The affidavit shall set forth:
(1) Facts necessary to establish the merits of the
petition;
(2) Shall show affirmatively that the petitioner is
competent to testify to the matters stated.
(3) The petitioner shall state the particular
erroneous entry or entries, which are sought
to be corrected and/or the change sought to
be made. (Sec. 5, R.A. No. 9048)
The petition shall be supported by:
(1) A certified true machine copy of the certificate
or of the page of the registry book containing
the entry or entries sought to be corrected or
changed;
(2) At least 2 public or private documents showing
the correct entry or entries upon which the
correction or change shall be based; and
(3) Other documents which the petitioner or the
city or municipal civil registrar or the consul
general may consider relevant and necessary
for the approval of the petition.
(4) For petition for correction of erroneous entry
concerning the date of birth or the sex of a
person, the petition must 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;
(5) For petition for correction of any entry
involving change of gender, the petition must
be accompanied by a certification issued by an
accredited government physician attesting to
the fact that the petitioner has not undergone
sex change or sex transplant.
NOTE: When there is a medical finding that
the petitioner in a case for correction of
erroneous entry as to gender is phenotypically
male or female, the no-sex change or
transplant certification becomes mere
surplusage. (Republic vs. Unabia, G.R. No.
213346, February 11, 2019)
1. The petitioner shall submit a certification
from the appropriate law enforcement
agencies that he has no pending case or
no criminal record. (Sec. 5, R.A. No. 9048)
The petition and its supporting papers shall be
filed in 3 copies to be distributed to:
2. To the concerned city or municipal civil
registrar, or the consul general;
3. To the Office of the Civil Registrar
General; and
4. To the petitioner. (Sec. 5, R.A. No. 9048,
as amended by R.A. 10172)
Publication Requirement
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, shall be published at least once a week for
2 consecutive weeks in a newspaper of general
circulation. (Sec. 5, R.A. No. 9048, as amended by
R.A. 10172)
512
Duties of the City or Municipal Civil
Registrar or the Consul General The civil registrar general shall immediately notify
the city or municipal civil registrar or the consul
The city or municipal civil registrar or the consul general of the action taken on the decision.
general to whom the petition is presented shall:
(1) Examine the petition and its supporting Upon receipt of the notice thereof, the city or
documents; municipal civil registrar or the consul general shall
(2) Post the petition in a conspicuous place notify the petitioner of such action. (Sec. 7, R.A.
provided for that purpose for 10 consecutive No. 9048, as amended)
days after he finds the petition and its
supporting documents sufficient in form and
substance; Remedies of the Petitioner on the Decision
(3) Act on the petition and shall render a decision of the Civil Registrar General
not later than 5 working days after the
completion of the posting and/or publication The petitioner may seek reconsideration with the
requirement; civil registrar general or file the appropriate
(4) Transmit a copy of his decision together with petition with the proper court.
the records of the proceedings to the Office
of the Civil Registrar General within 5 working
days from the date of the decision. (Sec. 6, Where the petition is denied by the city or
R.A. No. 9048, as amended) municipal civil registrar or the consul general, the
petitioner may either appeal the decision to the
Duties and Powers of the Civil Registrar civil registrar general or file the appropriate
General; Grounds to object petition with the proper court. (Sec. 7, R.A. No.
9048, as amended)
The civil registrar general shall, within 10 working
days from receipt of the decision granting a The appropriate petition is a petition for review
petition, exercise the power to impugn such under Rule 43 of the Rules of Court to the Court
decision by way of an objection based on the of appeals since the civil registrar general is
following grounds: performing quasi-judicial functions. (De Leon and
(1) The error is not clerical or typographical; Wilwayco, Special Proceedings Essentials for
(2) The correction of an entry or entries in the Bench and Bar, p.539, 2020 ed.)
civil register is substantial or controversial as
it affects the civil status of a person; or
(3) The basis used in changing the first name or
nickname of a person does not fall under
Section 4. If the civil registrar general fails to
exercise his power to impugn the decision of
the city or municipal civil registrar or of the
consul general within the period prescribed
herein, such decision shall become final and
executory.

513
DISTINCTION BETWEEN RULE 103, RULE 108 AND R.A. NO. 9048, AS AMENDED BY R.A. NO.
10172

RULE 103 RULE 108 R.A. No. 9048, as

amended by R.A. No.
10172

Rule or Law Change of Name Cancellation / Correction Clerical Error Act

of Entries in the Civil
Registry

Subject Change of full name or Cancellation or Change of:

Matter family name (substantial correction of civil registry (a) First name or nickname
corrections) entries (substantial (b) The day and month in
corrections) the date of birth or
(c) Sex of a person
(d) clerical or typographical
errors

Who may File A person desiring to
change his name. (Rule
103, Sec. 1)
Any person interested in
any act, event, order or
decree concerning the
civil status of persons
which has been recorded
in the civil register. (Rule
108, Sec. 1)
Any person having direct
and personal interest in the
correction of a clerical or
typographical error. (R.A.
No 9048, as amended by
R.A. No. 10172, Sec. 3)

Venue RTC of the province in RTC of the city or (1) Local civil registry office
which the petitioner province where the of the city or
resided for 3 years prior to corresponding civil municipality where the
record being sought to
filing. registry is located.
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.

514
 RULE 103 RULE 108 R.A. No. 9048, as
amended by R.A. No.
10172

Contents of (a) That petitioner has (a) Facts necessary to

Petition been a bona fide establish the merits of
resident of the petition;
province where the (b) Particular erroneous
petition is filed for at entry or entries, which
least three (3) years are sought to be
prior to the date of corrected and/or the
such filing; change sought to be
(b) The cause for which made.
the change of
petitioner's name is (c) Petition shall be
sought; supported by the
(c) The name asked for. following documents:
(Rule 103, Sec. 2) i. 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;
ii. At least two (2)
public or private
documents showing
the correct entry or
entries upon which
the correction or
change shall be
based; and
iii. 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

515
 RULE 103 RULE 108 R.A. No. 9048, as
amended by R.A. No.
10172

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. (R.A. No
9048, as amended by
R.A. No. 10172, Sec. 5)

Grounds (1) Name is ridiculous, Upon good and valid (1) Petitioner finds the first
tainted with dishonor grounds. name or nickname to be
and extremely difficult ridiculous, tainted with
to write or pronounce; dishonor or extremely
(2) Consequence of difficult to write or
change of status; pronounce;
(3) Necessity to avoid (2) The new first name or
confusion; nickname has been
(4) Having continuously habitually and
used and been known continuously used by
since childhood by a petitioner and he has
Filipino name, been publicly known by
unaware of her alien that first name or
parentage; nickname in the
(5) A sincere desire to community; or
adopt a Filipino name (3) The change will avoid
to erase signs of confusion. (R.A. No
former alienage all in 9048, as amended by
good faith and R.A. No. 10172, Sec. 4)
without prejudicing
anybody.

516
 RULE 103 RULE 108 R.A. No. 9048, as
amended by R.A. No.
10172

Kind of Judicial Proceeding Judicial Proceeding Administrative Proceeding

Proceeding Adversarial in nature
because it involves
substantial changes and
affects the status of an
individual.

What to File File a signed and verified File a verified petition for File an affidavit.
petition. the cancellation or
correction of any entry.

Notice and At least once a week for At least once a week for At least once a week for
Publication three consecutive weeks three consecutive weeks two consecutive weeks
in a newspaper of general in a newspaper of (publish the whole affidavit)
circulation (notice of general circulation – in change of first name or
hearing) (notice of hearing) nickname

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 Civil Registrar The Civil Registrar or
Participates the proper provincial or Consul
on the part of city fiscal shall appear on

517
 RULE 103 RULE 108 R.A. No. 9048, as
amended by R.A. No.
10172

the behalf of the Government

Government of the Republic

Where to Appeal decision to the Appeal decision to the Appeal decision to the Civil
Appeal Court of Appeals. Court of Appeals. Registrar General
(Head of Philippine
Statistics Authority).
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 565-569)

518
G. WRIT OF AMPARO
(A.M. No. 07-9-12-SC)
Concept; basis
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).
Nature of Writ of Amparo
The remedy of the Writ of Amparo is an equitable
and extraordinary remedy to safeguard the right
of the people to life, liberty and security as
enshrined in the 1987 Constitution. The Rule on
the Writ of Amparo was issued as an exercise of
the Supreme Court’s power to promulgate rules
concerning the protection and enforcement of
constitutional rights. It aims to address concerns
such as, among others, extrajudicial killings and
enforced disappearances. (De Lima vs. Gatdula,
G.R. No. 204528, February 19, 2013)
The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires
only substantial evidence to make the appropriate
reliefs available tothe petitioner; it is not an
action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or
administrative responsibility requiring substantial
evidence that will require full and exhaustive
proceedings. (De Lima v. Duterte, G.R. No. 227635
(Resolution), October 15, 2019).
Responsibility refers to the extent the actors
have been established by substantial evidence to
have participated in whatever way, by action or
omission, in an enforced disappearance, as a
measure of the remedies this Court shall craft,
among them, the directive to file the appropriate
criminal and civil cases against the responsible
parties in the proper courts.
Accountability refers to the measure of
remedies that should be addressed to those who
exhibited involvement in the enforced
disappearance without bringing the level of their
complicity to the level of responsibility defined
above; or who are imputed with knowledge
relating to the enforced disappearance and who
carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of
extraordinary diligence in the investigation of the
enforced disappearance. (Razon vs. Tagitis, G.R.
No. 182498, December 3, 2009).
When writ of Amparo does not apply
(1) When the case concerns property or
commercial in nature. The writ of amparo
does not envisage the protection of concerns
that are purely property or commercial in
nature. (Tapuz v. Del Rosario, G.R. No.
182484 (Resolution), June 17, 2008)
(2) In order for a biological mother to recover
child custody and parental right. It is extant
from the pleadings filed that what is involved
is the issue of child custody and the exercise
of parental rights over a child, who, for all
intents and purposes, has been legally
considered a ward of the State, the Amparo
rule cannot be properly applied. (Caram vs.
Segui, G.R. No. 193652 August 5, 2014)
(3) The threatened demolition of a dwelling by a
virtue of a final judgment of the court is not
included among the enumeration of rights
covered by the writ. Their claim to their
dwelling, assuming they still have any despite
the final and executory judgment adverse to
them, does not constitute right to life, liberty
and security. There is, therefore, no legal
basis for the issuance of the writ of amparo.
(Canlas v. NAPICO Homeowners Association,
519
 I-XIII, Inc., G.R. No. 182795 (Resolution),
June 5, 2008)
(4) When the respondent was allowed to post
bail. No undue confinement or detention was
present. In fact, respondents were even able
to post bail for the offenses a day after their
arrest. Although respondents’ release from
confinement does not necessarily hinder
supplication for the writ of amparo, absent
any evidence or even an allegation in the
petition that there is undue and continuing
restraint on their liberty, and/or that there
exists threat or intimidation that destroys the
efficacy of their right to be secure in their
persons, the issuance of the writ cannot be
justified. (Castillo v. Cruz, G.R. No. 182165,
November 25, 2009)
(5) Where alleged threat to life, liberty and
security has ceased and is no longer imminent
or continuing. The alleged unlawful restraint
on petitioners' liberty has effectively ceased
upon their subsequent release from
detention. On the other hand, the
apprehension of co-petitioner that she will be
detained is, at best, merely speculative. In
other words, she has failed to show any clear
threat to her right to liberty actionable
through a petition for a writ of Amparo.
(Agcaoili, Jr. v. Fariñas, G.R. No. 232395, July
3, 2018)
(6) When there is no government participation in
the threat or violation to the right to life,
liberty and security. (Spouses Santiago vs.
Tulfo, supra).
(7) When the right to travel is restrained by a
lawful cause. (Reyes vs. Gonzalez, G.R. No.
182161, December 3, 2009).
(8) When the whereabouts of the person alleged
to be missing is determinable and the persons
she is staying with are not agents or
organizations acting on behalf of the State.
(Lucena vs. Elago, G.R. No. 252120, Sept. 15,
2020).
Purpose; Coverage
While the foregoing rule, as per Section 1 of A.M.
No. 07-9-12-SC's first paragraph, does state that
the writ is a remedy to protect the right to life,
liberty, and security of the person desiring to avail
of it, the same section's second paragraph
qualifies that the protection of such rights
specifically pertain to extralegal killings and
enforced disappearances or threats thereof, which
are more concrete cases that involve protection to
the rights to life, liberty and security. (Sps.
Santiago vs. Tulfo, G.R. No. 205039, October 21,
2015)
The Amparo Rule was intended to address the
intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its
present form, is confined to these two instances or
to threats thereof. (Agcaoili, Jr. v. Fariñas, G.R.
No. 232395, July 3, 2018)
The writ shall cover:
(1) Extralegal Killings which are killings
committed without due process of law. (ibid)
(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
liberty, which places such person or persons
outside the protection of law. (In the Matter
of the Petition for Writ of Habeas
Corpus/Data v. De Lima, G.R. Nos. 215585
& 215768, September 8, 2020 citing
Declaration on the Protection of All Persons
from Enforced Disappearances)
520
Elements of enforced disappearance:
(1) That there be an arrest, detention, abduction
or any form of deprivation of liberty;
(2) That it be carried out by, or with the
authorization, support or acquiescence of, the
State or a political organization;
(3) That it be followed by the State or political
orgaization’s refusal to acknowledge or give
information on the fate or whereabouts of the
person subject of the amparo petition; and
(4) That the intention for such refusal is to
remove subject person from the protection of
the law for a prolonged period of time.
(Morada v. Rias, G.R. No. 222226, February
14, 2022, HERNANDO, J. citing Navia vs.
Pardico, G.R. No. 184467, June 19, 2012).
Government participation is an
indispensable requirement
For the issuance of the writ, it is not sufficient that
a person's life is endangered. It is even not
sufficient to allege and prove that a person has
disappeared. It has to be shown by the required
quantum of proof that the disappearance was
carried out by, or with the authorization, support
or acquiescence of the government or a political
organization, and that there is a refusal to
acknowledge the same or to give information on
the fate or whereabouts of the missing persons.
(Morada v. Rias, G.R. No. 222226, February 14,
2022, HERNANDO, J.)
The petitioner in an amparo case has the burden
of proving by substantial evidence the
indispensable element of government
participation. (Sps. Santiago vs. Tulfo, G.R. No.
205039, October 21, 2015)
This hallmark of State participation differentiates
an enforced disappearance case from an ordinary
case of a missing person. (Navia vs. Pardico, G.R.
No. 184467, June 19, 2012).
As discussed in the case of Morada vs. Rias, the
Court held that not only did Morada fail to
substantiate any extrajudicial killing or enforced
disappearance in this case, she also miserably
failed to show any government participation or
acquiescence in any killing or disappearance. To
reiterate, records show that Johnson was properly
accounted for by the authorities who initially
detained him.
Given the foregoing, there is no basis for the
issuance of the writ of amparo. The liberality
accorded to amparo does not mean that a claimant
is excused from the onus of proving his case.
"Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."
(Morada v. Rias, G.R. No. 222226, February 14,
2022, HERNANDO, J.)
Doctrine of Command Responsibility
The application of the doctrine of command
responsibility is limited, and cannot be true for all
litigations. The Court ruled in Rodriguez v.
Macapagal-Arroyo that command responsibility
pertains to the "responsibility of commanders for
crimes committed by subordinate members of the
armed forces or other persons subject to their
control in international wars or domestic conflict."
(Macapagal-Arroyo v. People, G.R. Nos. 220598 &
220953, July 19, 2016)
As then formulated, command responsibility is "an
omission mode of individual criminal liability,"
whereby the superior is made responsible for
crimes committed by his subordinates for failing to
prevent or punish the perpetrators. (Rubico vs.
Macapagal-Arroyo, G.R. No. 183871, February 18,
2010).
Rubrico categorically denies the application of
command responsibility in amparo cases to
determine criminal liability. The Court maintains its
adherence to this pronouncement as far as
521
amparo cases are concerned. Rubrico, however, Suppletory application of the Rules of Court
recognizes a preliminary yet limited application of
command responsibility in amparo cases to The Rules of Court shall apply suppletorily insofar
instances of determining the responsible or as it is not inconsistent with this Rule. (Section 25,
accountable individuals or entities that are duty- A.M. No. 07-9-12-SC).
bound to abate any transgression on the life,
liberty or security of the aggrieved party. Difference between Writ of Amparo and
Search Warrant
In other words, command responsibility may be
loosely applied in amparo cases in order to identify Writ of Search
those accountable individuals that have the power Amparo Warrant
to effectively implement whatever processes an As to its • A.M. No. 07-9- Section 2,
amparo court would issue. In such application, the source 12-SC Article III,
• Supreme 1987
amparo court does not impute criminal
Court Constitution
responsibility but merely pinpoint the superiors it exercising its
considers to be in the best position to protect the enhanced
rights of the aggrieved party. power to
promulgate
Such identification of the responsible and rules to
protect and
accountable superiors may well be a preliminary
enforce
determination of criminal liability which, of course,
constitutional
is still subject to further investigation by the rights.
appropriate government agency. (Boac vs. (Section 5(5),
Cadapan, G.R. Nos. 184461-62, May 31, 2011) Article VIII,
1987
The writ of amparo is both preventive and Constitution)
As to its Amparo Protection of
curative
coverage production order the people
It is preventive when it seeks to stop the impunity
of its may be likened from the
in committing offenses that violates a person's protection to the unreasonable
right to live and be free. production of intrusion of
documents or the
It is curative when it facilitates subsequent things under government
punishment of perpetrators through an Section 1, Rule to the right of
27 of the Rules the people to
investigation and action.
of Civil be secure in
Procedure their person,
Thus, the writ of amparo either prevents a threat (Secretary of houses,
from becoming an actual violation against a National Defense papers, and
person, or cures the violation of a person's right vs. Manalo, G.R. effects.
through investigation and punishment. (Gadian vs. No. 180906, (Secretary of
Ibrado, G.R. No. 188163, October 3, 2017) October 7, National
2008). Defense vs.
Manalo |G.R.
No. 180906,
October 7,
2008; Section
2, Article III,

522
 1987 The exclusive and successive order mandated by
Constitution) the above-quoted provision must be followed. The
As to • Public official Government order of priority is not without reason — "to
whom it or employee intrusion prevent the indiscriminate and groundless filing of
may be • Private (Secretary of
petitions for amparo which may even prejudice the
invoked individual or National
against entity (Section Defense vs. right to life, liberty or security of the aggrieved
1, A.M. 07-9- Manalo |G.R. party.” (Callo v. Morente, G.R. No. 230324,
12-SC). No. 180906, September 19, 2017)
October 7,
2008). No Docket Fees
As to SC, CA, RTC or MTC
where to Sandiganbayan within whose
The petitioner shall be exempted from the
file or RTC where territorial
threat or act jurisdiction / payment of the docket and other lawful fees when
committed. judicial filing the petition. The court, justice or judge shall
(Sec. 3, A.M. No. region a docket the petition and act upon it immediately.
07-9-12-SC) crime was (Section 4, A.M. No. 07-9-12-SC).
committed
(Rule 126, Where to file the petition
Sec. 2, ROC)
It may be filed on any day at any time:
Who may file Writ of Amparo
(a) RTC of the place where the threat, act, or
omission was committed or any of its
(1) The aggrieved party himself. elements occurred; or
(2) In the inability thereof, any qualified person or (b) Sandiganbayan or any justice of such court;
entity in the following order: or
(a) Any member of the immediate family, (c) Court of Appeals or any justice of such court
namely: the spouse, children, and parents or
of the aggrieved party; (d) Supreme Court or any justice of such court
(b) Any ascendant, descendant, or collateral
relative of the aggrieved party within the
The writ shall be enforceable anywhere in the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in Philippines. (Section 3, A.M. No. 07-9-12-SC)
the preceding paragraph; or
(c) Any concerned citizen, organization, Where the writ is returnable
association, or institution, if there is no
known member of the immediate family or (a) When issued by the RTC or any judge thereof,
relative of the aggrieved party. the writ shall be returnable before such court
or judge.
The filing of a petition by the aggrieved party (b) When issued by the CA, SB or any justice
suspends the right of all other authorized parties thereof
to file similar petitions. Likewise, the filing of the i. to such CA, SB or any justice thereof; or
petition by an authorized party on behalf of the ii. to the RTC of the place where the threat,
act or omission was committed or any of
aggrieved party suspends the right of all others,
its elements occurred.
observing the order established herein. (Section 2, (c) When issued by the SC or any justices
A.M. No. 07-9-12-SC). thereof,
i. to the SC or any justice thereof; or
ii. to the CA, SB or justice thereof;, or

523
 iii. to the RTC of the place where the threat,
act or omission was committed or any of
its elements occurred. (Section 3, A.M. No.
07-9-12-SC)
Contents of the Verified Petition
The petition shall be signed and verified and shall
allege the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation
is committed with the attendant
circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as well
as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other
just and equitable reliefs. (Section 5, A.M. No. 07-
9-12-SC).
Issuance and Service of the Writ
The court, justice or judge shall immediately order
the issuance of the writ if on its face it ought to
issue. The writ shall also set the date and time for
summary hearing of the petition which shall not be
later than 7 days from the date of its issuance.
(Section 6, A.M. No. 07-9-12-SC).
No writ of amparo may be issued unless there is a
clear allegation of the supposed factual and legal
basis of the right sought to be protected. (Canlas
vs. Napico Homeowners Association, G.R. No.
182795, June 5, 2008)
The issuance of the writ itself sets in motion
presumptive judicial protection for the petitioner.
The court compels the respondents to appear
before a court of law to show whether the grounds
for more permanent protection and interim reliefs
are necessary. (De Lima v. Gatdula, G.R. No.
204528 (Resolution), February 19, 2013)
Who issues the writ
(a) The clerk of court shall issue the writ under
the seal of the court; or
(b) In case of urgent necessity, the justice or the
judge may issue the writ under his or her own
hand, and may deputize any officer or person
to serve it. (Section 6, A.M. No. 07-9-12-SC).
The Court cannot grant remedies under the
writ that would delay the case
While the Rule on the Writ of Amparo accords the
Court a wide latitude in crafting remedies to
address an enforced disappearance, it cannot
(without violating the nature of the writ of Amparo
as a summary remedy that provides rapid judicial
relief) grant remedies that would complicate and
prolong rather than expedite the investigations
already ongoing. (Burgos vs. Esperon, G.R. No.
178497, February 4, 2014).
Service of the writ
(a) The writ shall be served upon the respondent
by a judicial officer or by a person deputized
by the court, justice or judge who shall retain
a copy on which to make a return of service.
(b) In case the writ cannot be served personally
on the respondent, the rules on substituted
service shall apply. (Section 8, A.M. No. 07-9-
12-SC).
524
A clerk of court who refuses to issue the writ after
its allowance, or a deputized person who refuses
to serve the same, shall be punished by the court,
justice or judge for contempt without prejudice to
other disciplinary actions. (Section 7, A.M. No. 07-
9-12-SC).
Return
Within 5 working days after service of the writ, the
respondent shall file a verified written return which
cannot be extended except on highly meritorious
ground. which shall, contain the following:
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
(b) The steps or actions taken by the respondent
to determine the fate or whereabouts of the
aggrieved party and the person or persons
responsible for the threat, act or omission;
(c) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party; and
(d) If the respondent is a public official or
employee, the return shall further state the
actions that have been or will still be taken:
i. to verify the identity of the aggrieved
party;
ii. to recover and preserve evidence related
to the death or disappearance of the
person identified in the petition which
may aid in the prosecution of the person
or persons responsible;
iii. to identify witnesses and obtain
statements from them concerning the
death or disappearance;
iv. to determine the cause, manner,
location and time of death or
disappearance as well as any pattern or
practice that may have brought about
the death or disappearance;
v. to identify and apprehend the person or
persons involved in the death or
disappearance; and
vi. to bring the suspected offenders before
a competent court.
(e) Supporting affidavits
(f) Other matters relevant to the investigation,
its resolution and the prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed. (Section 9, A.M. No. 07-9-12-
SC)
Omnibus Waiver Rule
All defenses shall be raised in the return,
otherwise, they shall be deemed waived. (Section
10, A.M. No. 07-9-12-SC).
Effect of failure to file a return
The court, justice or judge shall proceed to hear
the petition ex parte. (Section 12, A.M. No. 07-9-
12-SC).
Effect of refusal to file a return and
disobedience to Court orders
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte. (Section 12, A.M. No. 07-9-12-
SC).
The court, justice or judge may also order the
respondent who refuses to make a return, or who
makes a false return, or any person who otherwise
disobeys or resists a lawful process or order of the
court to be punished for contempt. The contemnor
may be imprisoned or imposed a fine. (Section 16,
A.M. No. 07-9-12-SC).
Prohibited Pleadings and Motions
(a) Motion to dismiss;
(b) Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
525
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
(Section 11, A.M. No. 07-9-12-SC).
Interim Reliefs
Upon filing of the petition or at any time before
final judgment, the court, justice or judge may
grant any of the following reliefs:
(a) Temporary Protection Order
(b) Inspection Order
(c) Production Order
(d) Witness Protection Order (Section 14, A.M.
No. 07-9-12-SC).
The Respondent may avail of an inspection order
and a production order upon a verified motion and
after due hearing. A motion for inspection order
shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent. (Section 15, A.M. No.
07-9-12-SC).
Temporary Protection Order
The court, justice or judge, upon motion or motu
proprio, may order that the petitioner or the
aggrieved party and any member of the immediate
family or if the petitioner is an organization,
association or institution, the officers involved to
be protected in a government agency or by an
accredited person or private institution capable of
keeping and securing their safety. (Section 14,
A.M. No. 07-9-12-SC).
Inspection Order
The court, justice or judge, upon verified motion
and after due hearing, may order any person in
possession or control of a designated land or other
property, to permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any relevant object
or operation thereon.
The motion shall:
(a) State in detail the place or places to be
inspected;
(b) Be supported by affidavits or testimonies of
witnesses having personal knowledge of the
enforced disappearance or whereabouts of
the aggrieved party; and
(c) Show that the inspection order is necessary
to establish the right of the aggrieved party
alleged to be threatened or violated.
If the motion is opposed on the ground of national
security or of the privileged nature of the
information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The inspection order shall:
(a) Specify the person or persons authorized to
make the inspection and the date, time,
place and manner of making the inspection;
and
(b) It may prescribe other conditions to protect
the constitutional rights of all parties.
The order shall expire five (5) days after the date
of its issuance, unless extended for justifiable
reasons. (Section 14, A.M. No. 07-9-12-SC).
Production Order
The court, justice, or judge, upon verified motion
and after due hearing, may order any person in
possession, custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects
in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the
return, to produce and permit their inspection,
copying or photographing by or on behalf of the
movant.
526
The motion may be opposed on the ground of
national security or of the privileged nature of the
information, in which case the court, justice or
judge may conduct a hearing in chambers to
determine the merit of the opposition.
The contemnor may be imprisoned or imposed a
fine. (Section 16, A.M. No. 07-9-12-SC).
Quantum of proof required

The court, justice or judge shall prescribe other The parties shall establish their claims by
conditions to protect the constitutional rights of all substantial evidence. (Section 17, A.M. No. 07-9-
the parties. (Section 14, A.M. No. 07-9-12-SC). 12-SC).

Witness Protection Order Thus, while we must follow the substantial

The court, justice or judge, upon motion or motu
proprio, may refer the witnesses to the
Department of Justice for admission to the Witness
Protection, Security and Benefit Program,
pursuant to Republic Act No. 6981. The court,
justice or judge may also refer the witnesses to
other government agencies, or to accredited
persons or private institutions capable of keeping
and securing their safety. (Section 14, A.M. No.
07-9-12-SC).
Hearing
The hearing on the petition shall be summary.
The court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties.
evidence rule, we must observe flexibility in
considering the evidence we shall take into
account. The fair and proper rule, to our mind, is
to consider all the pieces of evidence adduced in
their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our
rules to the most basic test of reason – i.e., to the
relevance of the evidence to the issue at hand and
its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.
(Razon vs. Tagitis, supra)
Standard of Diligence required from the
Respondent
Private individual or Public Official or
entity Employee

The hearing shall be from day to day until Must prove that Must prove that
completed and given the same priority as petitions ordinary diligence as extraordinary diligence
for habeas corpus. (Section 13, A.M. No. 07-9-12- required by applicable as required by
SC). laws, rules and applicable laws, rules
regulations was and regulations
Contempt observed in the was observed in the
The court, justice or judge may order the performance of duty. performance of duty.
respondent
- who refuses to make a return, or
- who makes a false return, or The respondent public official or employee cannot
- any person who otherwise disobeys or resists a invoke the presumption that official duty has been
lawful process or order of the court to be regularly performed to evade responsibility or
punished for contempt.
liability. (Section 17, A.M. No. 07-9-12-SC).

527

The respondent public official or employee must
show in the return on the writ of amparo the
observance of extraordinary diligence. Once an
enforced disappearance is established by
substantial evidence, the relevant State agencies
should be tasked to assiduously investigate and
determine the disappearance, and, if warranted,
to bring to the bar of justice whoever may be
responsible for the disappearance. (Republic vs.
Cayanan, G.R. No. 181796, November 7, 2017).
Judgment
The court shall render within ten (10) days from
the time the petition is submitted for decision.
If the allegations in the petition are proven by
substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege
shall be denied. (Section 18, A.M. No. 07-9-12-
SC).
Appeal
Any party may appeal, within 5 working days from
the date of notice of the adverse final judgment or
order, to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both.
The appeal shall be given the same priority as in
habeas corpus cases. (Section 19, A.M. No. 07-9-
12-SC).
Considering that under Section 19 of A.M. No. 07-
9-12-SC a party is only given five working days
from the date of notice of the adverse judgment
within which to appeal to this Court through a
petition for review on certiorari, a motion for
reconsideration of a final judgment or order must
likewise be filed within the same period.
Thereafter, from the order denying or granting the
motion for reconsideration, the party concerned
may file an appeal to the Court via a Rule 45
petition within five working days from notice of the
order pursuant to the fresh period rule. (Mamba
vs. Bueno, G.R. No. 191416, February 7, 2017)
Archiving and Revival of Cases
The court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot
proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on
their lives.
A periodic review of the archived cases shall be
made by the amparo court that shall, motu proprio
or upon motion by any party, order their revival
when ready for further proceedings.
The petition shall be dismissed with prejudice
upon failure to prosecute the case after the lapse
of 2 years from notice to the petitioner of the order
archiving the case. (Section 20, A.M. No. 07-9-12-
SC; Balao v. Ermita, G.R. Nos. 186050 & 186059
(Resolution), August 1, 2017)
Consolidation of Writ of Amapro and other
actions
The Rule on the Writ of Amparo shall not preclude
the filing of separate criminal, civil or
administrative actions. (Section 21, A.M. No. 07-9-
12-SC).
Rules on Consolidation of Actions
(1) 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.
(2) When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of amparo, the latter shall be
consolidated with the criminal action.
(3) After consolidation, the procedure under this
Rule shall continue to apply to the disposition
of the reliefs in the petition. (Section 23, A.M.
No. 07-9-12-SC).
528
Effect of filing a Criminal Action
(1) When a criminal action has been commenced,
no separate petition for the writ shall be filed.
(2) The reliefs under the writ shall be available by
motion in the criminal case.
(3) The procedure under this Rule shall govern
the disposition of the reliefs available under
the writ of amparo. (Section 22, A.M. No. 07-
9-12-SC).
H. WRIT OF HABEAS DATA
(A.M. NO. 08-1-16- SC)
Habeas Data
The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful
act or omission of a public official or employee,
or of a private individual or entity engaged
in the gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party. (In
the Matter of the Petition for Writ of Habeas
Corpus/Data v. De Lima, G.R. Nos. 215585 &
215768, September 8, 2020; Sec. 1, A.M. No. 08-
1-16-SC)
Nature and Scope
It is an independent and summary remedy
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.
(Bautista v. Dannug-Salucon, G.R. No. 221862,
January 23, 2018)
The writ of habeas data was conceptualized as a
judicial remedy enforcing the right to privacy,
most especially the right to informational privacy
of individuals. The writ operates to protect a
person’s right to control information regarding
himself, particularly in the instances where such
information is being collected through unlawful
means in order to achieve unlawful ends. (In the
Matter of the Petition for Writ of Habeas
Corpus/Data v. De Lima, G.R. Nos. 215585 &
215768, September 8, 2020)
The proceedings for the issuance of the writ of
habeas data does not entail any finding of criminal,
civil or administrative culpability. (De Lima v.
Duterte, G.R. No. 227635 (Resolution), October
15, 2019 citing Rodriguez vs. Arroyo, G.R. No.
191805, November 15, 2011).
In a proceeding for a writ of habeas data, courts
only determine the respondent’s accountability
in the gathering, collecting, or storing of data or
information regarding the person, family, home,
and correspondence of the aggrieved party. Any
criminal, administrative liability may only be
imposed in a separate action. (De Lima v. Duterte,
G.R. No. 227635 (Resolution), October 15, 2019)
Aggrieved parties in a petition for a writ of habeas
data are not precluded from filing civil, criminal,
or administrative cases, or from filing a
separate criminal action. For this petition, the only
reliefs that may be granted are the following:
(1) to enjoin the act complained of;
(2) to grant access to the database or
information; or
(3) to order the deletion, destruction, or
rectification of the erroneous data or
information. (ibid.)
Suppletory Application of the Rules of Court
The Rules of Court shall apply suppletorily insofar
as it is not inconsistent with this Rules on Habeas
529
Data. (Sec. 24, A.M. No. 08-1-16-SC).
Meaning of “engaged in the gathering,
collecting or storing of data or information”
To “engage” in something is different from
undertaking a business endeavor. To “engage”
means “to do or take part in something.” It does
not necessarily mean that the activity must be
done in pursuit of a business. What matters is that
the person or entity must be gathering, collecting
or storing said data or information about the
aggrieved party or his or her family. Whether such
undertaking carries the element of regularity, as
when one pursues a business, and is in the nature
of a personal endeavor, for any other reason or
even for no reason at all, is immaterial and such
will not prevent the writ from getting to said
person or entity. (Vivares et. al. vs. St. Therese
College, G.R. No. 202666, September 29, 2014)
Who may file the petition
General Any aggrieved party may file a
Rule petition for the writ of habeas
data.
Exception However, in cases of extralegal
killings and enforced
disappearances, the petition may
be filed by:
(a) Any member of the immediate
family of the aggrieved party,
namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or
collateral relative of the aggrieved
party within the fourth civil
degree of consanguinity or
affinity, in default of those
mentioned in the preceding
paragraph
(Sec. 2, A.M. No. 08-1-16-SC).
The writ of habeas data is not only confined to
cases of extralegal killings and enforced
disappearances. It may be availed of by any
person as an independent remedy to enforce one’s
right to privacy, more specifically the right to
informational privacy. (Vivares et. al vs. St.
Therese College, supra).
Indigent Petitioner
No docket and other lawful fees shall be required
form an indigent petitioner. The petition of the
indigent shall be docked and acted upon
immediately, without prejudice to subsequent
submission of proof of indigency not later than 15
days from the filing of the petition. (Sec. 5, A.M.
No. 08-1-16-SC).
An indigent party is one who has no money or
property sufficient and available for food, shelter
and basic necessities for himself and his family.
(Rule 3, Sec 21, Rules of Court)
The Writ of Habeas Data is available to an
aggrieved person who is alive
Although the petition for a writ of habeas data may
be filed by family member, or even relatives, on
behalf of the aggrieved party, the Habeas Data
Rule presupposes that the aggrieved party is still
alive as Section 6 of the said Rule requires the
petitioner to show how the violation of the
aggrieved party's right to privacy or threats of such
violation affect the aggrieved party's right to life,
liberty or security. Given the obtaining
circumstances, petitioner Heirs of Crispin Beltran
do not have the legal standing to file the present
petition. (Zarate vs. Aquino III, G.R. No. 220028,
November 10, 2015)
The Writ of Habeas Data cannot be invoked
against the President during his tenure by
reason of his Presidential Immunity
The Constitution provides remedies for violations
committed by the Chief Executive except an
ordinary suit before the courts. The Chief
530
Executive must first be allowed to end his tenure
either through resignation or removal by
impeachment. (De Lima vs. Duterte, G.R. No.
227635, October 15, 2019).
Where to file the petition
(1) RTC, at the option of the petitioner
(a) Where petitioner resides; or
(b) Where respondent resides; or
(c) Which has jurisdiction over the place
where the data or information is
gathered, collected or stored.
(2) 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).
Where the writ is returnable
(1) When issued by the RTC, or any judge thereof
(a) to such RTC; or
(b) to any judge such RTC
(2) When issued by the CA, SB or any justice
thereof
(a) to such CA or SB, or any justice thereof;
or
(b) to the RTC of the place where the
petitioner or respondent resides, or has
jurisdiction over the place where the
data or information is gathered,
collected or stored
(3) When by the SC or any justice thereof
(a) to the SC or any justice thereof; or
(b) to such CA or SB, or any justice thereof;
or
(c) to the RTC of the place where the
petitioner or respondent resides, or has
jurisdiction over the place where the
data or information is gathered,
collected or stored. (Sec. 4, A.M. No. 08-
1-16-SC).
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).
Section 6 of the Habeas Data Rule essentially
requires that the petition sufficiently alleges,
among others, "the manner the right to privacy is
violated or threatened and how it affects the right
to life, liberty or security of the aggrieved party."
In other words, the petition must 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. (Lee vs. Ilagan,
G.R. No. 203254, October 8, 2014)
Issuance and Service of the Writ
Upon the filing of the petition, the court, justice or
judge shall immediately order the issuance of the
writ if on its face it ought to issue. (Sec. 7, A.M.
No. 08-1-16-SC).
The writ shall also set the date and time for
summary hearing of the petition which shall not be
later than ten (10) work days from the date of its
issuance. (ibid.)
Who issues the writ
531
(a) The clerk of court under the seal of the court Return
and cause it to be served within 3 days from
its issuance; The respondent shall file a verified written return
(b) In case of urgent necessity, the justice or
within 5 working days from service of the writ,
judge may issue the writ under his or her own
hand, and may deputize any officer or person which may be reasonably extended by the Court
to serve it. (Sec. 7, A.M. No. 08-1-16-SC). for justifiable reasons. The return shall contain:
(a) Lawful defenses such as national security,
Instances where the writ cannot be issued state secrets, privileged communications,
confidentiality of source of information;
(b) If respondent is in charge, in possession or in
(1) The writ cannot be issued when the prayer
control of the data or information subject of
for the issuance of a writ of habeas data is
the petition:
nothing more than the "fishing expedition."
i. Disclosure of data or information about
(Tapuz vs. Del Rosario, G.R. No. 182484,
petitioner, nature of data or information,
June 17, 2008).
and the purpose of collection;
(2) The writ cannot be issued to protect purely
ii. Steps or actions taken by respondent to
property or commercial concerns. (Meralco
ensure security and confidentiality of data
vs. Lim, G.R. No. 184769).
or information; and
(3) The writ cannot be issued when the grounds
iii. Currency and accuracy of data or
involved in support of the petition are vague
information;
or doubtful. (Meralco vs. Lim, supra).
(c) Other allegations relevant to resolution of the
(4) The Court finds that Ilagan was not able to
proceedings.
sufficiently allege that his right to privacy in
(d) Supporting affidavits (Sec. 10, A.M. No. 08-1-
life, liberty or security was or would be
16-SC).
violated through the supposed reproduction
and threatened dissemination of the subject
sex video. (Lee vs. Ilagan, G.R. No. 203254, Effect of failure to file a return
October 8, 2014)
The court, justice or judge shall proceed to hear
Service of the Writ the petition ex parte, granting the petitioner such
relief as the petition may warrant, unless the court
(a) The writ shall be personally served upon the in its discretion requires the petition to submit
respondent by the officer or person deputized evidence. (Sec. 14, A.M. No. 08-1-16-SC).
by the court, justice or judge who shall retain
a copy on which to make a return of service. Effect of filing a false return and
(b) In case the writ cannot be served personally
disobedience to Court orders
on the respondent, the rules on substituted
service shall apply. (Sec. 9, A.M. No. 08-1-
16-SC). The court, justice or judge may punish with
imprisonment or fine a respondent who commits
A clerk of court who refuses to issue the writ after contempt by making a false return, or refusing to
its allowance, or a deputized person who refuses make a return; or any person who otherwise
to serve the same, shall be punished by the court, disobeys or resists a lawful process or order of the
justice or judge for contempt without prejudice to court. (Sec. 11, A.M. No. 08-1-16-SC).
other disciplinary actions. (Sec. 8, A.M. No. 08-1-
16-SC).

532
Prohibited Pleadings and Motions
(a) Motion to dismiss;
(b) Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari , mandamus or
prohibition against any interlocutory order
(Sec. 13, A.M. No. 08-1-16-SC).
Note: A general denial of the allegations in the
petition shall not be allowed (Sec. 10, A.M. No. 08-
1-16-SC).
Hearing
The hearing on the petition shall be summary.
The court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties (Sec. 15, A.M. No.
08-1-16-SC)
Instances when petition be heard in
chambers
(a) When respondent invokes the defense that
the release of the data or information in
question shall compromise national security
or state secrets; or
(b) 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).
Judgment
When will the Court render judgment
The court shall render judgment within 10 days
from the time the petition is submitted for
decision. (Sec. 16, A.M. No. 08-1-16-SC).
Quantum of Proof required
The allegations in the petition must be proved by
substantial evidence. (Sec. 16, A.M. No. 08-1-16-
SC).
The allegations in the petition must be supported
by substantial evidence showing an actual or
threatened violation of the right to privacy in life,
liberty or security of the victim. (Lee vs. Ilagan,
supra)
In view of the recognition of the evidentiary
difficulties attendant to the filing of a petition for
the privilege of the writs of amparo and habeas
data, not only direct evidence, but circumstantial
evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions
consistent with the admissible evidence adduced.
(Saez vs. Arroyo, G.R. No. 183533, September 25,
2012)
Reliefs that may be ordered by the Court
(a) To enjoin the act complained of; or
(b) To order the deletion, destruction, or
rectification of the erroneous data or
information; and\
(c) To grant other relevant reliefs as may be
just and equitable. (Sec. 16, A.M. No. 08-1-
16-SC).
Appeal
Any party may appeal from the judgment or final
order within 5 work days from the date of notice
of the judgment or final order to the Supreme
533
Court under Rule 45. The appeal may raise
questions of fact or law or both.
The appeal shall be given the same priority as
habeas corpus and amparo cases. (Sec. 19, A.M.
No. 08-1-16-SC).
Enforcement and Verified Return by the
Sheriff
Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officer as may be
designated by the court, justice or judge within 5
work days. (Sec. 16, A.M. No. 08-1-16-SC).
The officer who executed the final judgment shall,
within 3 days from its enforcement, make a
verified return to the court. The return shall
contain:
(1) A full statement of the proceedings under the
writ;
(2) A complete inventory of the database or
information, or documents and articles
inspected, updated, rectified, or deleted, with
copies served on the petitioner and the
respondent;
(3) A statement on how the judgment was
enforced and complied with by the
respondent; and
(4) All objections of the parties regarding the
manner and regularity of the service of the
writ. (Sec. 17, A.M. No. 08-1-16-SC).
The court shall set the return for hearing with due
notice to the parties and act accordingly. (Sec. 18,
A.M. No. 08-1-16-SC).
Institution of Separate Actions
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).
Rules on Consolidation of Actions
(a) 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.
(b) 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.
After consolidation, the procedure under this Rule
shall continue to govern the disposition of the
reliefs in the petition. (Sec. 21, A.M. No. 08-1-16-
SC)
Effects of filing of a Criminal Action
(a) When a criminal action has been commenced,
no separate petition for the writ shall be filed.
(b) The relief under the writ shall be available to
an aggrieved party by motion in the criminal
case.
(c) 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).
I. RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
(A.M. NO. 09-6-8-SC)
Nature
The Writ of Kalikasan means a legal remedy
available to any natural or juridical person, entity
authorized by law, people's organization, non-
governmental organization, or any public interest
group accredited by or registered with any
government agency, on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by
an unlawful act or omission of a public official or
employee, or private individual or entity, involving
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants
in two or more cities or provinces. (Rule 7, Sec. 1,
A.M. No. 09-6-8-SC)
534
Scope of the Rule
These Rules shall govern the procedure in civil,
criminal, and special civil actions before the
Regional Trial Courts, Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving
enforcement or violations of environmental and
other related laws, rules and regulations such as
but not limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental
Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of
1978;
(h) P.D. No. 1586, Establishing an
Environmental Impact Statement System
Including Other Environmental
Management Related Measures and for
Other Purposes;
(i) R.A. No. 3571, Prohibition Against the
Cutting, Destroying or Injuring of Planted or
Growing Trees, Flowering Plants and Shrubs
or Plants of Scenic Value along Public
Roads, in Plazas, Parks, School Premises or
in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development
Authority Act;
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
(l) R.A. No. 7076, People's Small-Scale Mining
Act;
(m) R.A. No. 7586, National Integrated
Protected Areas System Act including all
laws, decrees, orders, proclamations and
issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan
for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights
Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste
Management Act;
(t) R.A. No. 9072, National Caves and Cave
Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and
Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of
2007; and
(y) Provisions in C.A. No. 141, The Public Land
Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A. No.
7160, Local Government Code of 1991; R.A.
No. 7161, Tax Laws Incorporated in the
Revised Forestry Code and Other
Environmental Laws (Amending the NIRC);
R.A. No. 7308, Seed Industry Development
Act of 1992; R.A. No. 7900, High-Value
Crops Development Act; R.A. No. 8048,
Coconut Preservation Act; R.A. No. 8435,
Agriculture and Fisheries Modernization Act
of 1997; R.A. No. 9522, The Philippine
Archipelagic Baselines Law; R.A. No. 9593,
Renewable Energy
(z) Act of 2008; R.A. No. 9637, Philippine
Biofuels Act; and other existing laws that
relate to the conservation, development,
preservation, protection and utilization of
the environment and natural resources.
Applicability
These Rules may apply in other suits not
necessarily based on environmental laws or laws
containing environmental provisions, then these
Rules shall apply insofar as the SLAPP defense is
concerned. (Sec. 1, A.M. No. 09-6-8-SC)
Strategic lawsuit against public
participation (SLAPP)
Strategic lawsuit against public participation 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
535
taken or may take in the enforcement of the subject matter of the TEPO even if issued by
environmental laws, protection of the environment the executive judge, and may lift the same at any
or assertion of environmental rights. (Sec. 4 [g], time as circumstances may warrant.
Rule 1, A.M. No. 09-6-8-SC).
The applicant shall be exempted from the posting
1. TEMPORARY ENVIRONMENTAL of a bond for the issuance of a TEPO. (Rule 2, Sec.
PROTECTION ORDER (TEPO) 8, A.M. No. 09-6-8-SC).

Environmental Protection Order (EPO) refers Motion for Dissolution of TEPO

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. (Rule 1, Sec. 4 [d], A.M. No. 09-6-8-
SC).
Issuance of a TEPO
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
cause irreparable damage to the party or person
enjoined while the applicant may be fully
compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by
the party or person enjoined.

If it appears from the verified complaint with a
prayer for the issuance of an EPO that:
(a) The matter is of extreme urgency; and
(b) The applicant will suffer grave injustice and
irreparable injury
Who may issue ex parte a TEPO
(1) The executive judge of the multiple-sala court
before raffle or
(2) The presiding judge of a single-sala court.
Effectivity of TEPO
TEPO effective for only 72 hours from date of the
receipt of the TEPO by the party or person
enjoined.
The grounds for motion to dissolve a TEPO shall
be supported by affidavits of the party or person
enjoined which the applicant may oppose, also by
affidavits. (Rule 2, Sec. 9, A.M. No. 09-6-8-SC).
2. 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. (Rule 1,
Sec. 4 (c), A.M. No. 09-6-8-SC).

Within said period, the court where the case is Mandamus Continuing
assigned, shall conduct a summary hearing to Mandamus
determine whether the TEPO may be extended Mandamus lies to A writ of continuing
until the termination of the case. compel the mandamus is, in
performance of duties essence, a command
that are purely of continuing
What the court must do after issuing the ministerial in nature, compliance with a final
TEPO not those that are judgment as it
discretionary, and the "permits the court to
The court where the case is assigned, shall official can only be retain jurisdiction after
periodically monitor the existence of acts that are directed by judgment in order to
mandamus to act but ensure the successful

536
 not to act one way or implementation of the The the petition must contain substantive
the other. The duty reliefs mandated allegations specifically constituting an actionable
being enjoined in under the court’s neglect or omission and must establish, at the very
mandamus must be decision. (Dolot vs.
least, a prima facie basis for the issuance of the
one according to the Paje, G.R. No. 199199,
writ, viz.:
terms provided in the August 27, 2013)
law itself. Thus, the (1) An agency or instrumentality of government
recognized rule is that, The petition should or its officer unlawfully neglects the
in the performance of mainly involve an performance of an act or unlawfully excludes
an official duty or act environmental and another from the use or enjoyment of a right;
involving discretion, other related law, rule (2) The act to be performed by the government
the corresponding or regulation or a right agency, instrumentality or its officer is
official can only be therein. The final court specifically enjoined by law as a duty;
directed by decree, order or (3) Such duty results from an office, trust or
mandamus to act, but decision erroneously station in connection with the enforcement or
not to act one way or alluded to [in Rule 1, violation of an environmental law, rule or
the other. (Segovia vs. Sec. 4(c) of the Rule] regulation or a right therein; and
Climate Change actually pertains to the (4) There is no other plain, speedy and adequate
Commission, G.R. No. judgment or decree remedy in the course of law. (Dolot vs. Paje,
211010, March 7, that a court would supra)
2017) eventually render in
an environmental case Contents of the Petition
for continuing
mandamus and which (a) The petition shall allege the facts with
judgment or decree certainty;
shall subsequently (b) It shall specify that the petition concerns an
become final. (ibid.) environmental law, rule or regulation;
(c) A prayer that judgment be rendered
commanding the respondent to do an act or
Grounds for Continuing Mandamus series of acts until the judgment is fully
satisfied, and to pay damages sustained by
the petitioner by reason of the malicious
(a) When any agency or instrumentality of the
neglect to perform the duties of the
government or officer thereof unlawfully
respondent, under the law, rules or
neglects the performance of an act which the
regulations;
law specifically enjoins as a duty resulting
(d) Supporting evidence; and
from an office, trust or station in connection
(e) A sworn certification of non-forum shopping.
with the enforcement or violation of an
(Rule 8, Sec. 1, A.M. No. 09-6-8-SC).
environmental law rule or regulation or a right
therein; or
(b) unlawfully excludes another from the use or Who files the Petition
enjoyment of such right.
The person aggrieved by the act or omission of the
On either ground mentioned, there must also be government agency, instrumentality or officer.
no other plain, speedy and adequate remedy in the (Rule 8, Sec. 1, A.M. No. 09-6-8-SC).
ordinary course of law. (Rule 8, Sec. 1, A.M. No.
09-6-8-SC). While the requirements of standing had been
liberalized in environmental cases, the general rule
Sufficiency of substance of the Petition of real party-in-interest applies to a petition for

537
continuingmandamus. (Segovia vs. Climate
Change Commission, supra)
The petitioner shall be exempt from the payment
of docket fees. (Rule 8, Sec. 3, A.M. No. 09-6-8-
SC).
Where to file the Petition
The petition shall be filed with
(a) The RTC exercising jurisdiction over the
territory where the actionable neglect or
omission occurred; or
(b) With the CA; or
(c) The SC. (Rule 8, Sec. 2, A.M. No. 09-6-8-SC).
Issuance of the Writ and Order to Comment
If the petition is sufficient in form and substance,
the court shall
(1) Issue the writ; and
(2) Require the respondent to comment on the
petition within 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. (Rule 8, Sec. 4, A.M. No. 09-6-8-SC).
Expediting Proceedings and TEPO
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.
(Rule 8, Sec. 5, A.M. No. 09-6-8-SC).
Hearing
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
60 days from the date of the submission of the
petition for resolution. (Rule 8, Sec. 6, A.M. No.
09-6-8-SC).
Judgment
If warranted, the court shall:
(1) 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
(2) Grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of
the respondent
(3) The court shall require the respondent to
submit periodic reports detailing the progress
and execution of the judgment, and the court
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.
(Rule 8, Sec. 7, A.M. No. 09-6-8-SC).
Return of the Writ
The periodic reports submitted by the respondent
detailing compliance with the judgment shall be
contained in partial returns of the writ.
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.
(Rule 8, Sec. 8, A.M. No. 09-6-8-SC).
A writ of continuing mandamus is, in essence, a
command of continuing compliance with a final
judgment as 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." (Dolot vs. Paje, supra)
538
3. WRIT OF KALIKASAN
Nature of the Writ
The writ is a remedy available to a natural or
juridical person, entity authorized by law, people's
organization, non-governmental organization, or
any public interest group accredited by or
registered with any government agency, on behalf
of persons whose constitutional right to a balanced
and healthful ecology is violated, or threatened
with violation by an unlawful act or omission of a
public official or employee, or private individual or
entity, involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces. (Rule 7, Sec. 1, A.M. No. 09-6-8-SC).
Requisites for the Issuance of a Writ of
Kalikasan
(1) There is an actual or threatened violation of
the constitutional right to a balanced and
healthful ecology;
(2) The actual or threatened violation arises from
an unlawful act or omission of a public official
or employee, or private individual or entity;
and
(3) The actual or threatened violation involves or
will lead to an environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities
or provinces. (Segovia vs. Climate Change
Commission, supra)
It is well-settled that a party claiming the privilege
for the issuance of a writ of kalikasan has to show
that a law, rule or regulation was violated or would
be violated. (Segovia vs. Climate Change
Commission, supra)
Who may file the Petition
(a) A natural or juridical person; or
(b) An entity authorized by law; or
(c) By a people's organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violate. (Rule 7, Sec. 1,
A.M. No. 09-6-8-SC).
The petitioner shall be exempt from the payment
of docket fees. (Rule 7, Sec. 4, A.M. No. 09-6-8-
SC).
The filing of a petition for the issuance of a writ of
kalikasan under Sec. 1, Rule 7 of the Rule does not
require that a petitioner be directly affected by an
environmental disaster. The rule clearly allows
juridical persons to file the petition on behalf of
persons whose constitutional right to a balanced
and healthful ecology is violated, or threatened
with violation. (West Tower Condominium vs. First
Philippine Industrial Corporation, G.R. No. 194239,
June 16, 2015)
Citizen’s Suit
Any Filipino citizen in representation of others,
including minors or generations yet unborn, may
file an action to enforce rights or obligations under
environmental laws. (Rule 2, Sec. 5, A.M. No. 09-
6-8-SC).
Filipino Citizens, as Stewards, may file
action to enforce rights or obligations under
environmental laws
The liberalization of standing first enunciated in
Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the
Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits
in the Rules “collapses the traditional rule on
personal and direct interest, on the principle that
humans are stewards of nature.”
In the landmark case of Oposa v. Factoran, Jr., the
Court recognized the “public right” of citizens to “a
balanced and healthful ecology which, for the first
539
time in our constitutional history, is solemnly
incorporated in the fundamental law.”
The court declared that the right to a balanced and
healthful ecology need not be written in the
Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an
issue of transcendental importance with
intergenerational implications. Such right carries
with it the correlative duty to refrain from
impairing the environment.
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that
not only do ordinary citizens have legal standing
to sue for the enforcement of environmental
rights, they can do so in representation of their
own and future generations. (Arigo vs. Swift, G.R.
No. 206510, September 16, 2014, citing Oposa vs.
Factoran)
The need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules,
which allow any Filipino citizen, as a steward of
nature, to bring a suit to enforce our
environmental laws. It is worth noting here that
the Stewards are joined as real parties in the
Petition and not just in representation of the
named cetacean species. (Resident Marine
Mammals of the Protected Seascape Tañon Strait
vs. Reyes, G.R. No. 180771, April 21, 2015)
The West Tower Corp. represents the common
interest of its unit owners and residents, and has
the legal standing to file and pursue the instant
petition. This is so considering that the filing of a
petition for the issuance of a writ of kalikasan
under Sec. 1, Rule 7 [45] of the Rules of Procedure
for Environmental Cases clearly allows juridical
persons to file the petition on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated, or threatened with
violation. (West Tower Condominium Corporation
vs First Philippine Industrial Corporation, G.R. No.
194239, June 16, 2015)
Precautionary Principle
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. (Sec. 4
[f], Rule 1, A.M. No. 09-6-8-SC).
Where to file the petition
(a) Supreme Court; or
(b) With any of the stations of the CA. (Rule 7,
Sec. 3, A.M. No. 09-6-8-SC).
Contents of the Petition
The verified petition shall contain the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent or if the name and personal
circumstances are unknown and uncertain,
the respondent may be described by an
assumed appellation;
(c) The environmental law, rule or regulation
violated or threatened to be violated, the act
or omission complained of, and the
environmental damage of such magnitude as
to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
(d) All relevant and material evidence consisting
of the affidavits of witnesses, documentary
evidence, scientific or other expert studies,
and if possible, object evidence;
(e) The certification of petitioner under oath that:
i. petitioner has not commenced any
action or filed any claim involving the
same issues in any court, tribunal or
quasi-judicial agency, and no such other
action or claim is pending therein;
ii. if there is such other pending action or
claim, a complete statement of its
present status;
iii. if petitioner should learn that the same
or similar action or claim has been filed
540
 or is pending, petitioner shall report to
the court that fact within 5 days
therefrom; and
(f) The reliefs prayed for which may include a
prayer for the issuance of a TEPO. (Rule 7,
Sec. 2 A.M. No. 09-6-8-SC).
Issuance and Service of the Writ
Within 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. (Rule 7, Sec. 5, A.M. No. 09-6-8-SC).
Who issues the Writ
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. (Rule 7, Sec. 5,
A.M. No. 09-6-8-SC).
Return
Within a non-extendible period of 10 days after
service of the writ, the respondent shall file a
verified return which shall contain:
(a) All defenses to show that respondent did
not:
i. Violate; or
ii. Threaten to violate; or
iii. Allow the violation of any environmental
law, rule or regulation; or
iv. 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.
(b) Affidavits of witnesses, documentary
evidence, scientific or other expert studies,
and if possible, object evidence, in support
of the defense of the respondent.

Service of the Writ A general denial of allegations in the petition shall

be considered as an admission thereof. (Rule 7,
(a) The writ shall be served upon the Sec. 8, A.M. No. 09-6-8-SC).
respondent by a court officer or any person
deputized by the court, who shall retain a
Prohibited Pleadings and Motions
copy on which to make a return of service.
(b) In case the writ cannot be served
personally, the rule on substituted service (a) Motion to dismiss;
shall apply. (Rule 7, Sec. 6, A.M. No. 09-6- (b) Motion for extension of time to file return;
8-SC). (c) Motion for postponement;
(d) Motion for a bill of particulars;
A clerk of court who unduly delays or refuses to (e) Counterclaim or cross-claim;
(f) Third-party complaint;
issue the writ after its allowance or a court officer
(g) Reply; and
or deputized person who unduly delays or refuses (h) Motion to declare respondent in default. (Rule
to serve the same shall be punished by the court 7, Sec. 9, A.M. No. 09-6-8-SC).
for contempt without prejudice to other civil,
criminal or administrative actions. (Rule 7, Sec. 7,
A.M. No. 09-6-8-SC). Effect of Failure to File Return
The court shall proceed to hear the petition ex
parte. (Rule 7, Sec. 10, A.M. No. 09-6-8-SC).

541
Effect of Refusal to file a return and
disobedience to Court orders
The court may after hearing punish the
respondent who refuses or unduly delays the filing
of a return, or who makes a false return, or any
person who disobeys or resists a lawful process or
order of the court for indirect contempt under Rule
71 of the Rules of Court. (Rule 7, Sec. 13, A.M. No.
09-6-8-SC).
Hearing
(a) Upon receipt of the return of the respondent,
the court may call a preliminary
conference to: Simplify the issues;
(b) Determine the possibility of obtaining
stipulations or admissions from the parties;
and
(c) Set the petition for hearing.
The hearing including the preliminary conference
shall not extend beyond 60 days and shall be given
the same priority as petitions for the writs of
habeas corpus, amparo and habeas data. (Rule 7,
Sec. 11, A.M. No. 09-6-8-SC).
Discovery Measures
A party may file a verified motion for the following
reliefs:
(a) Ocular Inspection
The motion must show that:
i. An ocular inspection order is necessary
to establish the magnitude of the
violation or the threat as to prejudice the
life, health or property of inhabitants in
two or more cities or provinces;
ii. It shall state in detail the place or places
to be inspected;
iii. It shall be supported by affidavits of
witnesses having personal knowledge of
the violation or threatened violation of
environmental law.
After hearing, the court may order
i. Any person in possession or control of a
designated land or other property to
permit entry for the purpose of
inspecting or photographing the
property or any relevant object or
operation thereon;
ii. The order shall specify the person or
persons authorized to make the
inspection and the date, time, place and
manner of making the inspection and
may prescribe other conditions to
protect the constitutional rights of all
parties. (Rule 7, Sec. 12, A.M. No. 09-6-
8-SC).
(b) Production or inspection of documents
or things
The motion must show that a production
order is necessary to establish the magnitude
of the violation or the threat as to prejudice
the life, health or property of inhabitants in
two or more cities or provinces.
After hearing, the court may order:
i. Any person in possession, custody or
control of any designated documents,
papers, books, accounts, letters,
photographs, objects or tangible things,
or objects in digitized or electronic form,
which constitute or contain evidence
relevant to the petition or the return, to
produce and permit their inspection,
copying or photographing by or on
behalf of the movant.
ii. It shall specify the person or persons
authorized to make the production and
the date, time, place and manner of
making the inspection or production and
may prescribe other conditions to
protect the constitutional rights of all
parties. (Rule 7, Sec. 12, A.M. No. 09-6-
8-SC).
542
Submission of Case for Decision and
Memoranda
After hearing, the court shall issue an order
submitting the case for decision.
The court may require the filing of memoranda
and if possible, in its electronic form, within a non-
extendible period of thirty (30) days from the date
the petition is submitted for decision. (Rule 7, Sec.
14, A.M. No. 09-6-8-SC).
Judgment
Within 60 days from the time the petition is
submitted for decision, the court shall render
judgment granting or denying the privilege of the
writ of kalikasan. (Rule 7, Sec. 15, A.M. No. 09-6-
8-SC).
Reliefs that may be granted under the writ
(a) Directing respondent to permanently cease
and desist from committing acts or neglecting
the performance of a duty in violation of
environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official,
government agency, private person or entity
to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official,
government agency, private person or entity
to monitor strict compliance with the decision
and orders of the court;
(d) Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
(e) Such other reliefs which relate to the right of
the people to a balanced and healthful
ecology or to the protection, preservation,
rehabilitation or restoration of the
environment, except the award of damages
to individual petitioners. (Rule 7, Sec. 15,
A.M. No. 09-6-8-SC).
The above enumerated reliefs are non-exhaustive.
The reliefs that may be granted under the writ are
broad, comprehensive and non-exclusive. (Paje
vs. Casiño, G.R. No. 207257, February 3, 2015)
The Validity of an Environmental
Compliance Certificate (ECC) may be
assailed under the Writ of Kalikasan
A party, therefore, who invokes the writ based on
alleged defects or irregularities in the issuance of
an ECC must:
(1) Allege and prove such defects or irregularities
and provide a causal link or, at least, a
reasonable connection between the defects
or irregularities in the issuance of an ECC and
the actual or threatened violation of the
constitutional right to a balanced and
healthful ecology of the magnitude
contemplated under the Rules; and
(2) Provided that the case does not violate or is
an exception to the doctrine of exhaustion of
administrative remedies and primary
jurisdiction. (Paje vs. Casiño, supra)
Appeal
Within 15 days from the date of notice of the
adverse judgment or denial of motion for
reconsideration, any party may appeal to the
Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact.
(Rule 7, Sec. 16, A.M. No. 09-6-8-SC).
Institution of Separate Actions
The filing of a petition for the issuance of the writ
of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
(Rule 7, Sec. 17, A.M. No. 09-6-8-SC).
543
DISTINCTIONS BETWEEN WRIT OF HABEAS CORPUS, WRIT OF AMPARO, WRIT OF HABEAS
DATA, AND WRIT OF KALIKASAN

Writ of Habeas Writ of Amparo Writ Writ of Kalikasan

Corpus of Habeas Data
Definition "Habeas corpus" is a It is a remedy It is violated or The Writ of
Latin phrase which available to any threatened with Kalikasan means a
literally means "you person whose right violation by an legal remedy
have the body." It is to life, liberty, and unlawful act or available to any
a writ directed to the security has been omission of a public natural or juridical
person detaining violated or is official or employee. person, entity
another, threatened with authorized by law,
commanding him to violation by an It is a remedy people's
produce the body of unlawful act or available to any organization, non-
the prisoner at a omission of a public person whose right governmental
designated time and official or employee, to privacy in life, organization, or any
place, with the day or of a private liberty or security is public interest group
and cause of his individual or entity. violated or accredited by or
capture and The writ covers threatened by an registered with any
detention, to do, extralegal killings unlawful act or government agency,
submit to, and and enforced omission of a Public on behalf of persons
receive whatsoever disappearances or official or employee, whose constitutional
the court or judge threats thereof. or of a private right to a balanced
awarding the writ individual or entity and healthful
shall consider in that engaged in the ecology is violated,
behalf. gather- ing, or threatened with
collecting or storing violation by an
data or information unlawful act or
regarding the omission of a public
person, family, official or employee,
home and or private individual
correspondence of or entity, involving
the aggrieved party. environmental
damage of such
magnitude as to
prejudice the life,
health or property of
inhabitants in two or
more cities or
provinces. (Rule 7,
Sec. 1, A.M. No. 09-
6-8-SC)
Availability Sec. 1 Sec. 1 Sec. 1 Sec. 1

To all cases of illegal To any person To any person These Rules may
confinement or whose right to life, whose right to apply in other suits
detention: liberty and security privacy in life, liberty not necessarily
is violated or and security or of a based on
threatened with environmental laws

544
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
1. By which any violation by an private individual or or laws containing
person is unlawful act or entity engaged in: environmental
deprived of his omission of a public 1. Gathering provisions, then
liberty; or official or employee, 2. Collecting these Rules shall
or of a private 3. Storing of data or apply insofar as the
2. By which the individual or entity. information SLAPP defense is
rightful cus tody of regarding the concerned. (Sec. 1,
any person is person family, home A.M. No. 09-6-8-SC)
withheld from the and correspondence
person en titled of the aggrieved
thereto. party.
Petitioner Sec. 3 Sec. 2 Sec. 2 Sec. 1

By the party for By the ag- grieved General rule: (a) A natural or
whose relief it is party, or by any The aggrieved party juridical
intended, or by quali- fled person or person; or
some other person entity in the or- der Except: (b) An entity
in his behalf provided in Sec. 2 In cases of authorized by
extralegal killings law; or
and enforced (c) By a people's
disappearances: organization,
1. Immediate non-
family; governmental
2. In default of no. organization, or
1, ascendant, any public
descendant or interest group
collateral relative accredited by
within the 4th civil or registered
degree of with any
consanguinity or government
affinity. agency, on
behalf of
persons whose
constitutional
right to a
balanced and
healthful
ecology is
violate. (Rule 7,
Sec. 1, A.M. No.
09-6-8-SC).
Venue If filed with RTC, Sec. 3 Sec. 3 Sec. 3
where detainee is
detained SC, CA and SB, RTC SC, CA and SB RTC: (a) Supreme
of the place where 1. Where petitioner Court; or
the threat, act or resides; or (b) With any of the
omission was 2. Where stations of the
committed or any of respondent CA. (Rule 7,

545
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
its elements resides; or Sec. 3, A.M. No.
occurred. 3. Which has 09-6-8-SC).
jurisdiction over
the place where
data or information
is gathered, etc.
All at the option of
petitioner.
Extent of SC, CA and SB: Anywhere in the Anywhere in the
en- anywhere in the Philippines Philippines
forceability Philippines
RTC: only within its
judicial district
When to Sec. 2 Sec. 3 Indigent petitioner
file/ exempt from docket
Exemption On any day and at On any day and at fees
from any time any time. Petitioner
docket fees exempt from docket
fees
Setting of Sec. 12 Sec. 6 Sec. 7 (a) Upon receipt of
hearing the return of
Hearing on return Not later than 7 days Not later than 10 the
from date of days from date of respondent,
issuance of writ issuance of writ the court may
call a
preliminary
conference
to: Simplify
the issues;
(b) Determine the
possibility of
obtaining
stipulations or
admissions
from the
parties; and
(c) Set the petition
for hearing.

The hearing
including the
preliminary
conference shall not
extend beyond 60
days and shall be
given the same
priority as petitions
for the writs of

546
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
habeas corpus,
amparo and habeas
data. (Rule 7, Sec.
11, A.M. No. 09-6-8-
SC).
How served Sec. 7 Sec. 8 Sec. 9 (a) The writ shall be
served upon the
Service of If the writ can- not If the writ cannot be respondent by a
the writ shall be be served personally served personally on court officer or
made by leaving the on respondent, the respondent, the any person
original with the rules on substituted rules on substituted deputized by the
person to whom it is service shall apply service shall apply court, who shall
directed and retain a copy on
preserving a copy on which to make a
which to make return of
return of service. If service.
that person cannot (b) In case the writ
be found, or has not cannot be
the prisoner in cus- served
tody then the personally, the
service shall be rule on
made on any person substituted
having or exercising service shall
such custody apply. (Rule 7,
Sec. 6, A.M. No.
09-6-8-SC).

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, A.M. No. 09-
6-8-SC).
Filing of Sec. 10 Sec. 9 Sec. 9 Within a non-
Return extendible period of
Signed and shall Verified written 10 days after service
also be sworn to if return within 5 work of the writ, the

547
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
the prisoner is not days from service of Verified writ- ten respondent shall file
produced writ return within 5 days a verified return
— cannot be from service of writ which shall contain:
extended ex- cept — may be
on high- ly meritori- reasonably (a) All defenses to
ous grounds extended by the show that
court for justifiable respondent did
grounds not:
i. Violate; or
ii. Threaten to
violate; or
iii. Allow the
violation of
any
environmen
tal law, rule
or
regulation;
or
iv. Commit any
act resulting
to
environmen
tal 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.

(b) Affidavits of
witnesses,
documentary
evidence,
scientific or
other expert

548
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
studies, and if
possible, object
evidence, in
support of the
defense of the
respondent.

A general denial of
allegations in the
petition shall be
considered as an
admission thereof.
(Rule 7, Sec. 8, A.M.
No. 09-6-8-SC).
Effect of Sec. 12 Sec. 14
failure to In case respondent In case respondent
file fails to file a return, fails to return, the
the court, justice or court, justice or
judge shall proceed judge shall Proceed
to hear the petition to hear the petition
exparte ex parte, granting
pe- titioner such
relief as the petition
may warrant unless
the court in its
discretion requires
petitioner to submit
evidence
Prohibited Sec. 11 Sec. 13 (a) Motion to
Pleadings dismiss;
and (a) Motion to (a) Motion to (b) Motion for
Motions dismiss; dismiss; extension of
(b) Motion for (b) Motion for time to file
extension of extension of return;
time to file time to file (c) Motion for
opposition, opposition, postponement;
affidavit, affidavit, (d) Motion for a bill
position paper position paper of particulars;
and other and other (e) Counterclaim
pleadings; pleadings; or cross-claim;
(c) Dilatory motion (c) Dilatory motion (f) Third-party
for for complaint;
postponement; postponement; (g) Reply; and
(d) Motion for a bill (d) Motion for a bill (h) Motion to
of particulars; of particulars; declare
(e) Counterclaim (e) Counterclaim respondent in
or cross-claim; or cross-claim; default. (Rule

549
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
(f) Third-party (f) Third-party 7, Sec. 9, A.M.
complaint; complaint; No. 09-6-8-SC).
(g) Reply; (g) Reply;
(h) Motion to (h) Motion to
declare declare
respondent in respondent in
default; default;
(i) Intervention; (i) Intervention;
(j) Memorandum; (j) Memorandum;
(k) Motion for (k) Motion for
reconsideration reconsideration
of interlocutory of interlocutory
orders or orders or
interim relief interim relief
orders; and orders; and
(l) Petition for Petition for
certiorari, certiorari,
mandamus or mandamus or
prohibition prohibition against
against any any interlocutory
interlocutory order.
order.
Summary Sec. 13 Sec. 15
Hearing
The hearing on the The hearing on the
petition shall be petition shall be
summary. However, summary. However,
the court, justice or the court, justice or
judge may call for a judge may call for a
preliminary preliminary
conference to conference to
simplify the issues simplify the issues
and determine the and determine the
possibility of possibility of
obtaining obtaining
stipulations and stipulations and
admissions from the admissions from the
parties. parties.
The hearing shall be The hearing shall be
from day to day until from day to day until
completed and completed and
given the same given the same
priority as petitions priority as petitions
for habeas corpus. for habeas corpus.
Interim Sec. 12 Sec. 14
Reliefs
1. Unless a. Temporary
for good cause Protection Order

550
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
shown, the hearing
is adjourned, in b. Inspection Order
which event the
court shall make an c. Production Order.
order for the
safekeeping of the d. Witness
person imprisoned Protection
or restrained as the Order
nature of the case
requires;

2. The court or
judge must be
satisfied that
the person's illness
is so grave that he
cannot be produced
without any danger.
Judgment Sec. 15 Sec. 18 Sec. 16 Within 60 days from
the time the petition
When the court or The court shall Same with WOA is submitted for
judge has examined render judgment with an addition decision, the court
into the cause of within 10 days from that upon finality, shall render
caption and the time the petition the judgment shall judgment granting
restraint of the is submitted for be enforced by the or denying the
prisoner, and is decision. If the sheriff or any lawful privilege of the writ
satisfied that he is allegations in the officers as may be of kalikasan. (Rule
unlawfully petition are proven designated by the 7, Sec. 15, A.M. No.
imprisoned or by substantial evi court, justice or 09-6-8-SC).
restrained, he shall dence, the court judge within 5
forthwith order his shall grant the working days.
dis charge from privilege of the writ
confinement, but and such reliefs as
such discharge shall may be proper and
not be ef- fective appropriate;
until a copy of the otherwise, the
order has been privilege shall be
served on the denied.
officer or person
detaining the
prisoner, If the
officer or person
detaining the
prisoner does not
desire to appeal,
the prisoner shall be
forthwith released.

551
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
Appeal Sec. 15 in relation Sec. 19 Sec. 19 Within 15 days from
to Sec. 3, Rule 41 the date of notice of
and Sec. 39 of BP Rule 45 by petition Rule 45 by petition the adverse
129: for review on for review on judgment or denial
certiorari with certiorari with of motion for
48 hours from peculiar features: peculiar features: reconsideration, any
notice of judgment party may appeal to
appealed from by 1. Appeal may raise 1. Appeal may raise the Supreme Court
ordinary appeal questions of fact or questions of fact or under Rule 45 of the
law or both; law or both; Rules of Court. The
2. Period of appeal 2. Period of ap- peal appeal may raise
shall be 5 working shall be 5 working questions of fact.
days from the date days from the date (Rule 7, Sec. 16,
of notice of the of notice of the A.M. No. 09-6-8-
adverse judgment; adverse judgment; SC).
3. Same priority as 3. Same priority as
habeas corpus habeas corpus
cases cases
Institution Sec. 21 Sec. 20 The filing of a
of separate petition for the
actions This Rule shall not This Rule shall not issuance of the writ
preclude the filing preclude the filing of kalikasan shall not
of separate of separate preclude the filing of
separate civil,
criminal or
administrative
actions. (Rule 7,
Sec. 17, A.M. No.
09-6-8-SC).
Effect of Sec. 2 Sec. 21
filing
criminal When a criminal When a criminal
action action has been action has been
commenced, no commenced, no
separate petition for separate petition for
the writ shall be the writ shall be
filed. The reliefs filed. The reliefs
under the writ shall under the writ shall
be available by be available by
motion in the motion in the
criminal case. criminal case.
Consolidati Sec. 23 Sec. 22
on
When a criminal When a criminal
action is filed action is filed
subsequent to the subsequent to the
filing of a petition for filing of a petition for
the writ, the latter the writ, the latter

552
 Writ of Habeas Writ of Amparo Writ Writ of Kalikasan
Corpus of Habeas Data
shall be shall be
consolidated with consolidated with
the criminal action. the criminal action.
When a criminal When a criminal
action and a action and a
separate civil action separate civil action
are filed subsequent are filed subsequent
to a petition for a to a petition for a
writ of amparo, the writ of amparo, the
latter shall be latter shall be
consolidated with consolidated with
the criminal action. the criminal action.
(M. De Leon, Remedial Law Reviewer-Primer, 2021 Edition, pp. 525-534; A.M. No. 09-6-8-SC)

553
VII. CRIMINAL PROCEDURE Infraction is an act or omission in violation of
an ordinance
A. GENERAL CONCEPTS (Tan, Criminal Procedure: A Comprehensive
Approach for the Bench and the Bar, 2015
Sources of Criminal Procedure Edition, p. 16)
(a) Rule 110-127 of the Revised Rules of Court
(b) Revised Guidelines for Continuous Trial of
Criminal Case (AM No. 00-5-03-SC) System of Criminal Procedure
(c) 1987 Constitution – Art. III Bill of Rights
(d) Civil Code of the Philippines – Arts. 32, 33 Inquisitorial Accusatorial
and 34 In the inquisitorial It contemplates
system, the court plays a two contending
Criminal Procedure – is "a generic term to very active role and is parties before the
describe the network of laws and rules which not limited to the court, which hears
governs the procedural administration of justice" evidence presented them impartially
(Black's Law Dictionary, Fifth Edition, 1979). As before it. The court may and renders
utilize evidence gathered judgment only
such, it treats of the rules and processes by which
outside the court and a after trial. In our
the criminal laws are enforced and by which the judge or a group of judicial set-up, a
State prosecutes persons who violate such laws. judges under this system judge is not
(Riano, Criminal Procedure (The Bar Lecture actively participates in permitted to act as
Series), 2019 edition, p. 22) the gathering of facts an inquisitor who
and evidence instead of pursues his own
passively receiving investigation and
It is concerned with the procedural steps through
information or evidence arrives at his own
which a criminal case passes, commencing with
from the parties. The conclusion ex
the initial investigation of a crime and concluding judge steers the course parte.
with the unconditional release of the offender. of the proceedings by (Riano, Criminal
(Herrera, Remedial Law, 2007 edition, p. 3) directing and supervising Procedure (The Bar
the gathering of the Lecture Series),
It is the series of processes by which criminal laws evidence and the 2019 edition, p.
questioning of the 23)
are enforced and by which the State prosecutes
witnesses to the case.
persons who violate the penal laws. In the clear Thus, the counsels in the
language of the Court, procedural law, as applied inquisitorial system have
to criminal law, "provides or regulates the steps less active roles than
by which one who committed a crime is to be they have in the
punished". (People vs. Lacson, G.R. No. adversarial system.
149543, April 01, 2003) (Riano, Criminal
Procedure (The Bar
Lecture Series), 2019
Definition in relation to criminal proceeding edition, p. 24)
The detection and Contemplates of
Crime is an act committed or omitted in prosecution of crimes two contending
violation of a public law are left to the initiative of parties before the
Offense is an act or omission in violation of officials and agents of court which hear
a special law the law. The procedure is them partially and
Felony is an act or omission punishable by characterized by secrecy renders judgment
the Revised Penal Code and judge is not limited after trial. The
to the evidence brought procedure is

554
 before him but could confrontative and
proceed with his own the trial is publicly
inquiry whivh is not held and ends with
confrontative. (Herrera, the magistrate
Remedial Law, 2007 rendering the
edition, p. 2) verdict. (Herrera,
Remedial Law,
2007 edition, p. 2)
Note: The system of procedure in our jurisdiction
is accusatorial or adversarial, NOT inquisitorial.
(Riano, Criminal Procedure (The Bar Lecture
Series), 2019 edition, p. 23)
Public Crime and Private Crime In Relation
To Criminal Proceeding
Public a) Term used to describe a crime as
distinguished from an infringement
of private rights. A public offense, the
commission of which authorizes
private person to arrest another.
(Black's Law Dictionary)
b) Crime in which anyone can
prosecute because any citizen has an
interest in the prosecution and
prevention of crimes. (Fujiki v.
Marinay, 700 SCRA 69)
c) Crimes in which the initial stage of
prosecution, through a complaint,
may be laid by any competent
person. (Agujetas v. Court ofAppeals,
261 SCRA 17)
d) Crime which can be prosecuted de
oficio, even without a private
complainant, but it cannot be without
a victim. (Tan v. People, 313 SCRA
220)
e) It is essentially an act against the
State and it is the latter which
principally stands as the injured
party. The complainant's capacity to
sue in such case becomes
immaterial. (Sasot v. People of the
Philippines, 462 SCRA 138)
Private a) Crime which cannot be prosecuted
de officio (Pilapil v. lbay-Somera, 174
SCRA 653)
b) That which can be prosecuted only
through a complaint filed by the
aggrieved party (People v.
Bonaagua, 650 SCRA 620; People v.
Labado, 98 SCRA 730), which is a
condition precedent in the
prosecution of crime (People of the
Philippines v. Andres Bugtong, 169
SCRA 797)
(Tan, Criminal Procedure: A Comprehensive
Approach for the Bench and the Bar, 2015
Edition, pp. 16-17)
Ultimate goal of criminal procedure
Harmonizing the governmental functions of
maintaining peace and order and protecting the
constitutional rights of its citizens. (Riano,
Criminal Procedure (The Bar Lecture Series),
2019 edition, p. 23)
Liberal Interpretation of the Rules
The Rules on Criminal Procedure being part of the
Rules of Court shall be “liberally construed in
order to promote their objective of securing just,
speedy and inexpensive disposition of every
action and proceeding.” (Rule 1, Sec. 6, Rules of
Court)
The rules of procedure should be viewed as mere
tools designed to facilitate the attainment of
justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate
rather than promote substantial justice, must
always be eschewed. At this juncture, the Court
reminds all members of the bench and bar of the
admonition in the often-cited case of Alonso v.
Villamar (G.R. No. 2352, July 26, 1910;
Curammeng vs. People, G.R. No.
219510, November 14, 2016)
Retroactive effect of the Rules on Criminal
Procedure
555
 In determining whether or not the court has
Rules of criminal procedure are given retroactive jurisdiction over the offense, the penalty which
application in so far as they benefit the accused. may be imposed upon the accused based from
(People vs. Buayaban, G.R. No. 112459, March the penalty imposable by the law on the offense
28, 2003) and not the actual penalty imposed after the trial.
(Riano, Criminal Procedure (The Bar Lecture
In criminal law, the principle favorabilia sunt Series), 2019 edition, p. 30)
amplianda adiosa restrigenda (penal laws which
are favorable to the accused are given Principle of Adherence of Jurisdiction or
retroactive effect) is well entrenched. It has been Continuing Jurisdiction
sanctioned since the old Penal Code.||| (Inmates
of the New Bilibid Prison v. De Lima, G.R. Nos. The jurisdiction of the court is referred to as
212719 & 214637, June 25, 2019) “continuing” in view of the general principle that
once a court has acquired jurisdiction, that
Penal laws shall have a retroactive effect in so far jurisdiction continues until the court has done all
as they favor the person guilty of a felony or that it can do in the exercise of that jurisdiction
misdemeanor, although at the time of (20 Am. Jur. 2d, Courts, S 147, 1965).
the publication of such laws a final
sentence has been pronounced and the General Rule Exceptions
convict is serving same.||| For a long period, The jurisdiction once When the statute
it has been the settled doctrine in countries vested, cannot be expressly provides, or
whose criminal laws are based on the Latin withdrawn, or is construed that it is
defeated by: intended to operate to
system that such law are retroactive in so far as
(a) A subsequent actions pending
they favor the accused. In Spain and in the amendment of the before its enactment
Philippine Islands this doctrine is, as we have information
seen, re-inforced by statutory enactment, and is (b) A new law
even made applicable to cases where "final amending the rules of
sentence has been pronounced and the convict is jurisdiction
serving same."||| (Villarosa v. People, G.R. Nos. (Palana vs. People, G.R. No. 149995, September
233155-63, June 23, 2020) 28, 2007)

Statute Applicable to a Criminal Action 1. CRIMINAL JURISDICTION; CONCEPT

AND REQUISITES FOR EXERCISE

Jurisdiction to try a criminal action is determined

by the law in force at the time of the institution
of the action and not:
(a) The time of its commission, nor;
(b) During the arraignment of the accused
(Riano, Criminal Procedure (The Bar Lecture
Series), 2019 edition, pp. 30-31)
Criminal Jurisdiction
It is necessarily the authority to hear and try a
particular offense and impose the punishment for
it. (Antiporda v. Garchitorena, G.R. No.
133289, December 23, 1999 citing People v.
Mariano, G.R. No. L-40527, June 30, 1976).

Imposable Penalty After the judgment has become final, the court
retains its jurisdiction to execute and enforce it.
The power to control the execution of its decision

556
is an essential aspect of jurisdiction. (Echegaray
v. Secretary of Justice, G.R. No. 132601, January
19, 1999)
Dismissal of the case on jurisdictional
grounds
General The question of jurisdiction may
Rule be raised at any stage of the
proceedings. (Lu v. Lu YM, Sr.,
G.R. Nos. 153690, 157381,
170889, August 4, 2009)
An objection on the ground that
the court lacks jurisdiction over
the subject matter may be raised
or considered motu proprio by
the court at any stage of the
proceedings or appeal (Tijam v.
Sibonghanoy, G.R. No. L-21450,
April 15, 1968)
Exception It may not be raised for the first
time on appeal, where there has
been estoppel and laches on the
party who raises the question.
Party assailing jurisdiction of
court must raise it at the first
opportunity. While an order or
decision rendered without
jurisdiction is a total nullity and
may be assailed at any stage,
active participation of the parties
in the proceedings, without
questioning the jurisdiction until
an adverse resolution is issued
will bar or "estop" such party
from attacking the court’s
jurisdiction, especially when an
adverse judgment has been
rendered. (Soliven vs. Fastforms
Phils., Inc., G.R. No. 139 31,
October 18, 2004)
A party may be estopped or
barred from raising a question in
different ways and for different
reasons. Thus, we speak of
estoppel in pais, or estoppel by
deed or by record, and of
estoppel by laches. (Tijam v.
Sibonghanoy, G.R. No. L-2140,
April 15, 1968)
The doctrine laid down in the
Tijam case is an exception to and
not the general rule. Thus, we
apply the general rule that
jurisdiction is vested by law and
cannot be conferred or waived by
the parties. (Pangilinan v. CA,
G.R. No. 117363, December 17,
1999)
If the lower court had
jurisdiction, and the case was
heard and decided upon a given
theory, such as for instance, as
that the court had no jurisdiction,
the party who induced it to adopt
such theory will not be
permitted, on appeal, to assume
an inconsistent position that the
lower court had jurisdiction
(Lozon v. NLRC, G.R. No.
107660, January 2, 1995)
Requisites for Valid Exercise of Criminal
Jurisdiction
There are three important requisites which must
be present before a court can acquire criminal
jurisdiction.
(1) The court must have jurisdiction over the
subject matter
(2) The court must have jurisdiction over the
territory where the offense was committed
(3) The court must have jurisdiction over the
person of the accused. (Cruz v. Court of
Appeals, G.R. No. 123340. August 29, 2002)
All three requisites must concur before a court
can acquire jurisdiction (Antiporda v.
Garchitorena, G.R. No. 133289, December 23,
1999 citing Arula v. Espino, G.R. No. L-28949
1969).
557
Distinguish Jurisdiction over the subject jurisdiction over the offense
matter from Jurisdiction over person of the charged. (Riano, Criminal
accused Procedure (The Bar Lecture
Series), p. 25, 2019 edition)
Over the Subject Over the Person of
Matter the Accused Jurisdiction over the subject
the power to hear and the person charged matter includes the power to
determine cases of with the offense must determine whether or not it
the general class to have been brought has the authority to hear and
which the into its forum for trial; determine the controversy
proceedings in an accused must first presented, and the right to
question belong; be placed in the decide whether or not the
custody of the law statement of facts that confer
Conferred by law forcibly by warrant of jurisdiction exists, as well as
(either by the arrest or upon his other matters that arise in the
Constitution or statute voluntary submission case legitimately before the
and those necessarily to the court; court (Salvador v. Patricia,
implied to make the Inc., G.R. No. 195834,
express powers May be acquired November 9, 2016).
effective), parties either through How Jurisdiction is conferred by law,
cannot choose, compulsory process, conferred and lack of it affects the very
consent to, or agree such as warrant of authority of the court to take
as to what court or arrest, or through his cognizance of and to render
tribunal should decide voluntary judgment on the action
their disputes; appearance. (Balibago Faith Baptist Church,
important to Inc. v. Faith in Christ Jesus
determine the nature Objection to the Baptist Church, Inc., G.R. No.
of the cause of action procedure followed in 191527, August 22, 2016).
and of the relief the matter of the
sought. acquisition by a court It cannot be presumed or
of jurisdiction over the implied but must appear clearly
Lack of jurisdiction of person of the accused from the law or it will not be
a court over the must be opportunely held to exist. It cannot be
subject matter may raised before he conferred by the agreement of
be raised at any time enters his plea; the parties; or by the court's
even for the first time otherwise, the acquiscence; or by the
on appeal as the right objection is deemed erroneous belief of the court
to question such waived. that it had jurisdiction; or by
jurisdiction is never the waiver of objections; or by
waived. the silence of the parties
(M. De Leon, Remedial Law Reviewer-Primer, (Salvador v. Patricia, Inc., G.R.
2021 Edition, p. 591) No. 195834, November 9,
2016).
Jurisdiction Over the Subject Matter
Nature Jurisdiction over the subject It cannot be acquired through
matter refers to the authority a waiver or enlarged by the
of the court to hear and omission of the parties or
conferred by the acquiescence
determine a particular criminal
of the court (Atienza v. People,
case. It is, in simple terms,

558
 G.R. No. 188694, February 12,
2014).
How 1. Determined by the
determined allegations in the complaint
or information and not by the
results of the trial’s courts
appreciation of the evidence
presented.
2. Determined by the law in
force at the time of the
institution of the criminal
action. (Riano, Criminal
Procedure (The Bar Lecture
Series), p. 29-30, 2019
edition)
Note:
Jurisdiction of the court is not
determined by what may be
meted out to the offender after
trial or even by the result of the
evidence that would be
presented at the trial, but by
the extent of the penalty which
the law imposes for the
misdemeanor, crime
violation charged in the
complaint. (People vs.
Purisima, G.R. No. No. L-
40902, February 18, 1976)
Effect if the In case the court has no
court has jurisdiction over the subject
no matter of the action or over the
jurisdiction offense charged, it shall be a
over the ground for a motion to quash
subject under Section 3 of Rule 117 on
matter of the ground that "That the court
the offense trying the case has no
jurisdiction over the offense
charged." (Section 3 [b], Rule
117) and the case will be
dismissed.
If the court has no jurisdiction
it cannot take cognizance of
the case. In U.S. v. dela Santa
(9 Phil. 22), the Court states
that, if under the statute, the
court has no jurisdiction to
hear and decide a criminal
case, it cannot take cognizance
of the case, notwithstanding
the silence or acquiescence of
the accused. (Tan, Criminal
Procedure: A Comprehensive
Approach for the Bench and
the Bar, 2015 Edition, p. 35)
Jurisdiction Over the Territory where the
Crime was Committed
In criminal cases, venue is an essential element
of jurisdiction. The offense should have been
committed or any one of its essential ingredients
should have taken place within the territorial
jurisdiction of the court. (Riano, Criminal
Procedure (The Bar Lecture Series), p. 26, 2019
edition)
Venue in criminal cases is an essential
element of jurisdiction.
It is a fundamental rule that for jurisdiction to be
or acquired by courts in criminal cases the offense
should have been committed or any one of its
essential ingredients took place within the
territorial jurisdiction of the court. Territorial
jurisdiction in criminal cases is the territory where
the court has jurisdiction to take cognizance or to
try the offense allegedly committed therein by the
accused. Thus, it cannot take jurisdiction over a
person charged with an offense allegedly
committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the
criminal case is determined by the allegations in
the complaint or information. And once it is so
shown, the court may validly take cognizance of
the case.
However, if the evidence adduced during the trial
show that the offense was committed somewhere
else, the court should dismiss the action for want
559
of jurisdiction. (Navaja v. De Castro, G.R. No.
182926, June 22, 2015).
General Rule:
Subject to existing laws, the criminal action must
be instituted and tried in the courts of the
municipality or territory where the offense was
committed or any of its essential ingredients
occurred.
Exceptions:
(1) Extraterritorial Offenses - where the offense
was committed under the exceptional
circumstances provided for in Article 2 of the
Revised Penal Code, the offense is cognizable
before Philippine courts even if committed
outside of the territory of the Philippines.
(2) Where an offense is committed in a train,
aircraft, or other public or private vehicle while in
the course of its trip, the criminal action shall be
instituted and tried in the court of any
municipality or territory where such train, aircraft
or other vehicle passed during such its trip,
including the place of its departure and arrival.
(Sec. 15[b], Rule 110)
(3) Where an offense is committed on board a
vessel in the course of its voyage, the criminal
action shall be instituted and tried in the court of
the first port of entry or of any municipality or
territory where the vessel passed during such
voyage, subject to the generally accepted
principles of international law. (Sec. 15[c], Rule
110)
(4) In exceptional circumstances – To ensure a
fair trial and impartial inquiry. The SC shall have
the power to order a change of venue or place of
trial to avoid miscarriage of justice.
(5) Piracy – The venue of piracy, unlike all other
crimes, has no territorial limits. It may be tried
anywhere;
(6) 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 is printed and first
published;
(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;
(c) If the offended party is a public official,
where the latter holds office at the time of
the commission of the offense.
(7) In cases filed under B.P. 22 – The criminal
action shall be filed in the place where the check
was dishonored or issued. In case of cross-check,
in the place of depositary or collecting bank.
(8) Where the case is cognizable by the
Sandiganbayan – the jurisdiction of which
depends upon the nature of the offense and the
position of the accused (Subido v.
Sandiganbayan, G.R. No. 122641, Jan. 20, 1997),
the offense need not be tried in the place where
the act was committed but where the court
actually sits.
(9) In criminal action arising from illegal
recruitment shall be filed with the RTC of the
province or city where the offense was committed
or where the offended party actually resides at
the time of the commission of the offense. (Sec.
9, R.A. No. 8042, Migrant Workers Act of 1995)
Venue is jurisdictional in criminal cases, action
must be instituted and tried in the municipality or
territory where the offense has been committed
or where any one of the essential ingredients
thereof took place.
Jurisdiction Over the Person of the Accused
Jurisdiction over the person of the accused is
acquired either upon his arrest or apprehenssion,
with or without a warrant, or by his voluntary
appearance or submission to the jurisdiction of
the court. (Riano, Criminal Procedure (The Bar
Lecture Series), 2019 edition, p. 333)
560
The voluntary appearance of the accused may be
made by the filing of a pleading or motion in
court. However if the motion to quash was
precisely and exclusively to challenge the
jurisdiction of the ourt over the accused’s person
under Sec. 3[b] of Rule 117, the accused is not
deemed to have made a voluntary appearance.
(Riguera, Primer-Reviewer on Remedial Law Vol.
2, 2022 Edition, p. 281)
Note: Resolution of a motion to quash a warrant
of arrest does not require that the court have
jurisdiction over the person of the accused and
resolution of a motion for reinvestigation does not
require that the accused be in the custody of the
law. (Miranda v. Tuliao, G.R. No. 158763, March
31, 2006).
Criminal Jurisdiction of Municipal Trial
Court, Metropolitan Trial Court, and
Municipal Circuit Trial Court
(1) Violations of city or municipal ordinances
committed within their respective territorial
jurisdictions.
(2) Violations of traffic laws, rules, and
regulations.
(3) Violations of the rental law.
(4) Violations of B.P. Blg. 22 or the Bouncing
Checks Law.
(5) Offenses punishable with imprisonment not
exceeding 6 years, irrespective of the
amount of fine; provided, however, that in
offenses involving damage to property
through criminal negligence they shall have
exclusive original jurisdiction.
(6) Offenses where the only penalty provided by
law is a fine, where such fine does not
exceed P4,000. (Adm. Cir. No. 09-94, 14
June 1994; Riguera, Primer-Reviewer on
Remedial Law Vol. 2, 2022 Edition, p. 285)
(7) Special jurisdiction to decide on Bail in the
absence of all the Regional Trial Judges in a
province or City
(8) Under the P.D. 1606 as amended by R.A.
8249, the criminal cases of:
(a) Government officials
(b) Offense punishable by imprisonment of
6 years or less or fine of 4,000 pesos or
less
(c) Official is lower than salary grade 27
Note: Accessory penalties and civil liabilities are
no longer determinative of jurisdiction.
No jurisdiction: over those cases which by
provision of special law are made triable by the
RTC or the Sandiganbayan even if the maximum
penalty prescribed by such special law is less than
6 years. Included in such exceptions are election
offenses, libel or written defamation, and
violation of Sec. 39 of the Dangerous Drugs Act
of 1972 (RA 6425).
Summary Procedure of Criminal Cases
under the Jurisdiction of the MTC, MeTC,
and MCTC
To achieve an expeditious and inexpensive
determination of the cases referred to herein, the
Supreme Court resolved to promulgate the
Revised Rule on Summary Procedure. In essence,
there will only be filing of pleadings and generally
no need for a hearing.
(1) Violations of traffic laws, rules and
regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg. 22 (the
Bouncing Checks Law); and
(5) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding one (1) year, or
a fine not exceeding Fifty Thousand Pesos
(₱50,000.00), or both, regardless of other
imposable penalties, accessory or otherwise,
or of the civil liability arising therefrom. In
offenses involving damage to property
through criminal negligence under Article
365 of the Revised Penal Code, this Rule
561
 shall govern where the imposable fine does
not exceed One Hundred Fifty Thousand
Pesos (₱150,000.00).
If the prescribed penalty consists of
imprisonment and/or a fine, the prescribed
imprisonment shall be the basis for determining
the applicable procedure.
All other cases not included herein shall be
governed by the regular rules of procedure.
(Rule I [b], A.M. No. 08-8-7-SC, March 1, 2022)
Criminal Jurisdiction of Regional Trial Court
(1) Criminal cases not falling within the
exclusive jurisdiction of any court, tribunal,
or body. These also include criminal cases
NOT falling within the exclusive original
jurisdiction of the Sandiganbayan, where
none of the accused are occupying
positions corresponding to salary grade
“27” and higher (R.A. No. 7975 and R.A.
No. 8249)
(2) Over offenses punishable by imprisonment
for a period of more than 6 years.
(3) Over offenses where the fine is more than
4,000 pesos.
(4) Appellate jurisdiction over all cases decided
by the MTC within its territorial jurisdiction.
(Sec. 22 of B.P. 129).
(5) Criminal actions or proceedings for
violation of the Omnibus Election Code.
(6) Cases of libel. (Art. 360 of RPC)
(7) Criminal actions involving violations of the
Comprehensive Dangerous Drugs Act of
2002 (R.A. No. 9165)
(8) Money-Laundering cases. Those
committed by public officers and private
persons who are in conspiracy with such
public officers shall be under the
jurisdiction of the Sandiganbayan.
(9) Violations of the Cybercrime Prevention
Act. (Sec. 21, R.A. No. 10175).
(10) Violations of the Philippine Competition
Act. (Sec. 44, Philippine Competition Act).
(11) Actions or proceedings involving violations
of intellectual property rights (A.M. No. 03-
03-03-SC effective 1 July 2003; Samson v.
Daway, 21 July 2004)
Criminal Jurisdiction of Sandiganbayan
The Sandiganbayan has jurisdiction over the
following:
Original - Exclusive Jurisdiction
(a) Violation of Republic Act No. 3019 [1960],
Republic Act No. 1379 [1955] and Chapter
II, Section 2, Title VII of Revised Penal Code;
and other offenses committed by public
officials and employees in relation to their
office, and private individuals charged as co-
principals, accomplices, and accessories
including those employed in government-
owned or -controlled corporations, where
one or more of the accused are officials
occupying the following positions in
government, whether in a permanent,
acting, or interim capacity, at the time of the
commission of the offense:
(1) Officials of the Executive Branch xxx
classified as salary grade "27" or higher
of the Compensation and Position
Classification Act of 1989 (R.A. No.
6758), specifically including:
(a) Provincial governors, vice-
governors, members of the
sangguniang panlalawigan, and
provincial treasurers, assessors,
engineers, and other provincial
department heads;
(b) City mayors, vice-mayors,
members of the sangguniang
panlungsod, city treasurer,
assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service
occupying the position of consul
and higher;
(d) Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
(e) Officers of the PNP while
occupying the position of
provincial director and those
562
 holding the rank of senior
superintendent or higher;
(f) City and provincial prosecutors
and their assistants, and officials
and prosecutors in the office of
the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees,
or managers of GOCCs, state
universities or educational
institutions or foundations.
(2) Members of Congress and officials
thereof classified as Grade "27" and up
under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without
prejudice to the provisions of the
Constitution;
(4) Chairmen and members of
Constitutional Commissions, without
prejudice to the provisions of the
Constitution; and
(5) All other national and local officials
classified as Grade "27" and higher
under the Compensation and Position
Classification Act of 1989.
(i) In cases where none of the
accused is occupying the above
positions, the original jurisdiction
shall be vested in the proper
Regional Trial Court or
Metropolitan Trial Court, etc., as
the case may be, pursuant to their
respective jurisdictions (Sec. 2,
Republic Act No. 7975 [1995], as
amended by Republic Act No. 8249
[1997]).
(ii) In cases where there is no specific
allegation of facts showing that the
offense was committed in relation
to the public office of the accused,
the original jurisdiction shall also
be vested in the proper Regional
Trial Court or Metropolitan Trial
Court, etc., as the case may be
(Lacson vs. Executive Secretary,
G.R. No. 128096, January 20,
1999).
(b) Other offenses or felonies whether simple or
complexed with other crimes committed by
the public officials and employees mentioned
in subsection "a" of this section in relation to
their office.
(c) Civil and criminal cases filed pursuant to and
in connection with Executive Order Nos. 1,
2, 14, and 14-A (Sec. 2, Republic Act No.
7975 [1995] as amended by Republic Act
No. 8249 [1997]).
(d) Violations of Republic Act No. 9160, or "Anti-
Money Laundering Act of 2001," as amended
by Republic Act No. 9194, when committed
by public officers and private persons who
are in conspiracy with such public officers.
Under Republic Act No. 10660 amending the
jurisdiction of the Sandiganbayan, which took
effect on May 5, 2015:
"The Regional Trial Court shall have exclusive
original jurisdiction where the information: (a)
does not allege any damage to the government
or any bribery; or (b) alleges damage to the
government or bribery arising from the same or
closely related transactions or acts in an amount
not exceeding One million pesos (P1,000 000.00).
Subject to the rules promulgated by the Supreme
Court, the cases falling under the jurisdiction of
the Regional Trial Court under this section shall
be tried in a judicial region other than where the
official holds office." (M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 598)
➢ Generally, the jurisdiction of a court to try a
criminal case is determined at the time it was
filed. However, it is clear from the transitory
provision of Republic Act No. 10660 that the
amendment introduced regarding the
jurisdiction of the Sandiganbayan shall apply
to cases arising from offenses committed
after the effectivity of the law on May 5.
2015 (People us. Bacaltos, G.R. No. 248701,
July 28, 2020; M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 598).
➢ Violations of Republic Act No. 3019
committed by officials in the executive
563
 branch with SG 27 or higher, and the officials
specifically enumerated in (a) to (g) of Sec.
4 a.(1) of Presidential Decree No. 1606, as
amended by Sec. 2 of Republic Act No. 7975,
regardless of their salary grades, likewise fall
within the original jurisdiction of the
Sandiganbayan (Ampongan vs.
Sandiganbayan, G.R. No. 234670-71, August
14, 2019; M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 598).
Note: These include:
"b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads."
➢ Violations of Republic Act 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.
The Sandiganbayan maintains its jurisdiction
over those officials specifically enumerated
in (a) to (g) of Sec. 4(1) of Presidential
Decree No. 1606, as amended, regardless of
their salary grades. It is the position held,
not the salary grade, which determines the
jurisdiction of the Sandiganbayan (Inocentes
vs. People, G.R. No. 205963-64, July 7,
2016; M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, pp. 598-599).
➢ The concerned officers of government-
owned or controlled corporations, whether
created by special law or formed under the
Corporation Code, come under the
jurisdiction of the Sandiganbayan for
purposes of the provisions of the Anti-Graft
and Corrupt Practices Act (People vs.
Sandiganbayan [Fifth Division]and Efren L.
Alas, G.R. Nos. 147706-07, February 16,
2005; M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, p. 599).
Appellate Jurisdiction
The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of the RTC whether in the
exercise of their own original jurisdiction or of
their appellate jurisdiction as provided in P.D. No.
1606.
Decisions and final orders of Regional Trial Courts
in the exercise of their original or appellate
jurisdiction under Presidential Decree No. 1606
[1979], as amended, shall be appealable to the
Sandiganbayan in the manner provided by Rule
122 of the Rules of Court (Sec. 5, Republic Act
No. 8249 [1997]).
Criminal offenses fall within the
jurisdiction of the Sandiganbayan
(1) Violations of the Anti-Graft Law (R.A. No.
3019)
(2) Illegally Acquired Wealth (R.A. No. 1379)
(3) Bribery and Corruption of Public Officials.
(Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code)
(4) Criminal cases filed pursuant to the
Sequestration Law (E.0 No. 1,2, 14, and 14-
A, issued in 1986)
(5) Office-related offenses.
(6) Plunder (Sec. 3, R.A. No. 7080)
(7) Money-Laundering. (Sec. 5, Anti-Money
Laundering Act; Riguera, Primer-Reviewer
on Remedial Law Vol. 2, 2022 Edition, p.
291)
Jurisdiction Over Complex Crimes
Jurisdiction is lodged with the trial court having
jurisdiction to impose the maximum and most
serious penalty imposable of an offense forming
part of the complex crime. It must be prosecuted
integrally and must not be divided into
component offenses which may be made subject
of multiple information brought in different courts
(Cuyos v. Garcia, G.R. No. L- 46934, April 15,
1988).
Jurisdiction Over Continuing Crimes
564
Continuing offenses are consummated in one
place, yet by the nature of the offense, the
violation of the law is deemed continuing (e.g.,
estafa and libel). As such, the courts of the
territories where the essential ingredients of the
crime took place have concurrent jurisdiction. But
the court which first acquires jurisdiction excludes
the other courts.
Jurisdiction Over Crimes Punishable By
Destierro
Where the imposable penalty is destierro, the
case falls within the exclusive jurisdiction of the
Municipal Trial Court, considering that in the
hierarchy of penalties under Article 71 of the
Revised Penal Code, destierro follows arresto
mayor which involves imprisonment (People v.
Eduarte, G.R. No. 88232, February 26, 1990).
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
The additional penalty for HABITUAL
DELINQUENCY is not considered in determining
jurisdiction because such delinquency is not a
crime (Legados v. de Guzman, G.R. No. 35285,
Feb. 20, 1989).
Jurisdiction of Family Courts
Family Courts have exclusive and original
jurisdiction over the following cases:
(1) Criminal cases where one or more of the
accused is below 18 years of age but not
less than nine years of age, when one or
more of the victims is a minor at the time
of the commission of the offense:
Provided, that if the minor is found guilty,
the court shall promulgate sentence and
ascertain any civil liability which the
accused may have incurred. The sentence,
however, shall be suspended without need
of application pursuant to Presidential
Decree No. 1903, otherwise known as "The
Child and Youth Welfare Code" (Republic
Act No. 8369 Family Courts Act of 1997)
(2) Cases against minors cognizable under
Republic Act No. 9165, or "The
Comprehensive Dangerous Drugs Act of
2002" (A.M. No. 07-8-2-SC, effective
November 5, 2007);
(3) Violation of Republic Act No. 7610 [1991],
otherwise known as the "Special Protection
of Children Against Child Abuse,
Exploration and Discrimination Act," as
amended by Republic Act No. 7658 [1993]
and as further amended by Republic Act
No. 9231 [2003];
(4) Violation of Republic Act No. 9775 [Anti-
Child Pornography Act of 2009];
(5) Cases of violence against women and their
children under Republic Act No. 9262,
otherwise known as "Anti-Violence Against
Women and their Children Act of 2004,"
including applications for Protection Order
under the same Act;
(6) Criminal cases involving juveniles if no
preliminary investigation is required under
Sec. 1, Rule 112 of Revised Rules on
Criminal Procedure (Sec. 1, A.M. No. 02-1-
18-SC, effective April 15, 2002).
The Family Court has no jurisdiction in a murder
case where the minor victims are dead.
Undoubtedly, in vesting in family courts exclusive
original jurisdiction over criminal cases involving
minors, the law but seeks to protect their welfare
and best interests. Here there is no living minor
in the murder cases that require the special
attention and protection of a family court. (People
v. Dela Torre-Yadao, November 13, 2012;
Riguera, Primer-Reviewer on Remedial Law Vol.
2, 2022 Edition, p. 287)
565
Criminal Jurisdiction of Court of Appeals 2. WHEN INJUNCTION MAY BE FILED

Appellate jurisdiction General Criminal prosecutions may not

Rule: be restrained, either through
preliminary or final injunction
Over final judgments, decisions, resolutions,
or a writ of prohibition
orders, or awards of the RTC and the Family
Court. Writs of injunction or
prohibition to restrain a
Criminal Jurisdiction of Court of Tax criminal prosecution are
Appeals generally not available (Kwong
Sing v. City of Manila, No.
15972; October 11, 1920)
Original jurisdiction
With more reason will
Overall criminal offenses arising from violations of injunction not lie when the
the NIRC, TCC, and other laws administered by case is still at the preliminary
the BIR or the BoC. Provided however that investigation stage. Courts
offenses or felonies where the principal amount should not usurp the primary
of taxes and fees, exclusive of charges and function of the fiscal to conduct
preliminary investigation.
penalties, claimed is less than P1 million or where
(Guingona, Jr., et. al. v. The
there is no specified amount claimed shall be tried City Fiscal of Manila, et. al.,
by the regular courts and the jurisdiction of the 137 SCRA 597; Samson v.
CTA shall be appellate. Guingona, Jr., 348 SCRA 32).

Appellate jurisdiction Public interest requires that

criminal acts be immediately
investigated and prosecuted
Over appeals from the judgments, resolutions or
for the protection of the
orders of the RTC in tax cases originally decided society. (Nicomedes v. Chief of
by them. Constabulary, 110 Phil. 52;
Grinen v. Consolacion, 115
Over petitions for review of the judgments, Phil. 697; Asutilla v. PNB, 141
resolutions or orders of the RTC in the exercise of SCRA 41; Romero v. Chief of
Staff, AFP, 170 SCRA 408)
their appellate jurisdiction over tax cases decided
Exceptions: (a) When necessary to protect
by the MTC.
the constitutional rights of
the accused.
Criminal Jurisdiction of Supreme Court (b) When necessary for the
orderly administration of
Appellate jurisdiction justice or to avoid
oppression or multiplicity
of actions.
Criminal cases decided by the Court of Appeals,
(c) When there is a prejudicial
Sandiganbayan, and CTA. question which is sub
judice.
(d) When the acts of the
officer are without or in
excess of authority.

566
 (e) When the prosecution is
under an invalid law or
regulation.
(f) When there is double
jeopardy.
(g) When the court has no
jurisdiction over the
offense.
(h) When it is a case of
persecution rather than
prosecution.
(i) When 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. (Guiani-
Sayadi v. Office of the
Ombudsman, G.R. No.
239930 (Notice), May 10,
2021; Bank of the
Philippine Islands v.
Hontanosas, Jr., G.R. No.
157163, June 25, 2014)
B. PROSECUTION OF OFFENSES
(RULE 110)
Criminal Action
Is one by which the State prosecutes a person for
an act or omission punishable by law. It is
commenced by filing of a complaint or
information before the court or if it requires
preliminary investigation by filing an affidavit-
complaint before the prosecutor’s office for
purposes of preliminary investigation. (Tan,
Criminal Procedure: A Comprehensive Approach
for the Bench and the Bar, 2015 Edition, pp. 14-
15)
Purpose of a criminal action; role of the
private offended party
Purposes of criminal action: to determine the
penal liability of the accused for having outraged
the state with his crime and, if he be found guilty,
to punish him for it.
(1) The parties to the action are:
(2) The People of the Philippines
(3) The accused
Private offended party: regarded merely as a
witness for the state (Riano, Criminal Procedure
(The Bar Lecture Series), 2019 edition, p. 63)
Institution vs Commencement
Institution Commencement
For offenses which When the
require a preliminary complaint or
investigation, the criminal information is filed
action is instituted by in court
filing the complaint with
the proper officer for
preliminary investigation.
Institution of Criminal Action
(1) For offenses where a preliminary
investigation is required pursuant to
Section 1 of Rule 112: (Sec. 1(a), Rule 110)
Nature of Offense
Those where the penalty prescribed
bylawisatleast4 years, 2 months and 1 day (Sec.
1, Rule 112, as amended by A.M. No. 05-8-26-
SC)
How instituted
By filing the complaint with the “proper officer”
for the purpose of conducting the requisite
preliminary investigation.
General Preliminary Investigation is
Rule required for an offense where
the penalty prescribed by law is
567
 at least four (4) years, two (2) File directly with the Municipal Trial Court and
months and one (1) day without Municipal Circuit Trial Courts or with the office of
regard to the fine. (Sec. 1, Rule the prosecutor; (Sec. 1[b], Rule 110)
112)
Exception When a person is lawfully In Manila and other chartered cities, the
arrested without a warrant complaint shall be filed with the office of the
involving an offense which prosecutor unless otherwise provided in their
requires a preliminary charters. (ibid.)
investigation, the complaint or
information may be filed by a NOTE: There is no direct filing of an information
prosecutor without need of such or complaint with the Regional Trial Court under
investigation provided an inquest Rule 110 because its jurisdiction covers offenses
has been conducted in which require preliminary investigation. (Riano,
accordance with existing rules. Criminal procedure, 2019 edition, p. 64)
In the absence or unavailability
of an inquest prosecutor, the Effect of the institution of the criminal
complaint may be filed by the action on the prescriptive period
offended party or a peace officer
directly with the proper court on For cases The institution of the criminal
the basis of the affidavit of the under RPC action shall interrupt the period
offended party or arresting of prescription of the offense
officer or person. (Sec. 7, Rule charged unless otherwise
112) provided in special laws. (Sec. 1,
Rule 110)
Proper Officer (Rule 112, Sec. 2). For cases The institution of proceedings for
under preliminary investigation against
Persons authorized to conduct the requisite special the accused interrupts the period
preliminary investigation: laws of prescription. (Perez v.
Sandiganbayan, G.R. No.
(1) Provincial or city prosecutors and their 245862, November 3, 2020)
assistants For The institution of proceedings
(2) National and regional state prosecutors violation does not interupt the period of
(3) Commissions on Elections through its of prescription; period of
authorized legal officers for all election municipal prescription shall be interrupted
offenses punishable under the Omnibus or city only by the filing of the complaint
Election Code. ordinances or information in court and shall
(4) Lawyers appointed as special prosecutors begin to run again if the
(5) Office of the Ombudsman; or PCGG with the proceedings are dismissed for
assistance of OSG and other government reasons not constituting double
agencies jeopardy. (Jadewell Parking
(6) Other officers as may be authorized by law Systems Corp. v. Lidua, Sr., G.R.
No. 169588, October 7, 2013)
(2) For all other offenses: (Sec. 1(b), Rule
110) Prescription of Crimes punished under the
RPC (Art. 90)
Nature of Offense
Offenses where the penalty prescribed by law is By death, shall prescribe in twenty
less than 4 years, 2 months, and 1 day reclusion years (20 years)
perpetua or
How instituted

568
 reclusion Offenses punished by 12 years
temporal imprisonment for 6 years or
By other penalties shall prescribe in more
afflictive fifteen years (15 years) Treason 20 years
By a shall with the Violations of municipal 2 months
correctional prescribe exception of ordinances
penalty in ten those
years punishable Complaint and Information Distinguished
(10 years) by arresto
mayor, which Complaint Information
shall prescribe As to A complaint is a An information
in five years (5 definition sworn written is an
years) statement accusation in
Crime of libel shall prescribe in one year (1 charging a writing
or other similar year) person with an charging a
offenses offense, person with an
Oral shall prescribe in six months. subscribed by offense,
defamation (6 months) the offended subscribed by
and slander by party, any the prosecutor
deed peace officer, and filed with
Light offenses prescribe in two months. (2 or other public the court (Sec.
months) officer charged 4, Rule 110)
When the penalty fixed by law is a compound with the
one, the highest penalty shall be made the enforcement of
basis of the application of the rules contained the law
in the first, second and third paragraphs of this violated (sec.
article. (As amended by RA 4661, approved 3, Rule 110)
June 19, 1966). As to For the For the court to
(Art. 90, RPC) purpose of prosecutor to conduct a
filing conduct preliminary
Prescriptive Period for Violation of Special preliminary examination,
Penal Laws investigation, and the
in case no need purpose of
Violations penalized by special acts shall, unless for preliminary preliminary
otherwise provided in such acts, prescribe in investigation examination is
accordance with the following rules: needed it is for for the court to
the prosecutor
Offenses punished only 1 year to know if there
byafineorby imprisonment for is probable
not more than one month, or cause.
both Subscribed Subscribed Subscribed by
Offenses punished by 4 years by who only by any of the prosecutor
imprisonment for more than the persons
month but less than 2 years specified in the
Offenses punished by 8 years rule:
imprisonment for 2 years or (a) offended
more, but less than 6 years party
(b) any peace
officer

569
 (c) other (3) Other public (2) Duly appointed
public officer officer charged special
charged with with the prosecutors (Rule
the enforcement of 112, Sec. 4)
enforcement the law violated
of the law (Rule 112, Sec. 3)
violated Exception: Offenses or crimes that cannot be
Sworn and must be sworn need not be prosecuted de oficio, such as:
written? and written sworn but (a) In private offenses (concubinage,
must be in adultery, seduction, abduction, acts of
writing lasciviousness); and
As to It may be filed It is filed with (b) Defamations imputing any of the
where to either in court the court (Sec. aforesaid offenses wherein a sworn
file or in the 1, Rule 110) written complaint is required in
Prosecutor’s accordance with Section 5 of this Rule.
office (Sec. 1,
Rule 110) Prosecution of Criminal Action
As to Must be It need not be
necesity of “sworn,” hence under oath. General Rule: All criminal actions either
Oath it must be (Sec. 4, Rule commenced by complaint or by information shall
made under 110) be prosecuted under the direction and control of
oath (Sec. 3, a public prosecutor. (Sec. 5, Rule 110, as
Rule 110) amended by A.M. No. 02-2-07-SC)

Note: If the original information was signed and
filed by one who had no authority to sign and file
the same, the dismissal of the information would
not be a bar to a subsequent prosecution under
a subsequent valid information. Jeopardy does
not attach where an accused pleads guilty to a
defective indictment. (Riano, Criminal procedure,
2019 edition, p. 87)
Form of Complaint or Information
Even if there is a private prosecutor, the criminal
action is still prosecuted under the direction and
control of the public officer.
A private party does not have the legal
personality to prosecute the criminal aspect of a
case, as it is the People of the Philippines who are
the real parties in interest in a criminal case.
(Valderrama v. People, G.R. No. 220054, March
27, 2017)

(1) Must be in writing; Rationale: Since a criminal offense is an outrage

(2) In the name of the People of the Philippines;
and
(3) Against all persons who appear to be
responsible for the offense involved (Rule
Sec. 2, Rule 110).
against the sovereignty of the State, it necessarily
follows that a representative of the State shall
direct and control the prosecution thereof.
(Riano, Criminal procedure, 2019 edition, pp. 70-
71)

Persons Who May File The rule is founded on the theory that a crime is
a breach of the security and peace of the people
Persons authorized to file a: at large. (ibid.)
Complaint Information
(1) Offended party; (1) City or provincial Exception: The private prosecutor may be
(2) Any peace prosecutor and authorized in writing by the Chief of the
officers; their assistants Prosecution Office or the Regional State

570
Prosecutor to prosecute the case subject to the
approval of the court, in the event of:
(1) Heavy work schedule of the public
prosecutor; and
(2) Lack of public prosecutors
Once so authorized to prosecute the criminal
action, the private prosecutor shall continue to
prosecute the case up to end of the trial even in
the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn.
(Sec. 5, Rule 110, as amended by A.M. No. 02-2-
07-SC)
Section 3, Rule 110 of the Rules of Court
enumerates the persons who are authorized to
file a criminal complaint. The "complaint"
mentioned in this provision, however, refers to
one filed in court for the commencement of a
criminal prosecution for violation of a crime. This
does not refer to a complaint filed with the
Prosecutor's Office.
As a rule, a criminal action contemplated
under Rule 110 is commenced by a complaint or
information, both of which are filed in court.
Thus, if a complaint is filed directly in court, the
same must be filed by those persons delineated
in Sections 3 and 5 of the same rule, such as the
offended party. In the case of an information, the
same must be filed by the fiscal or prosecutor.
However, a "complaint" filed with the fiscal or
prosecutor from which he/she may initiate a
preliminary investigation may be filed by any
person. (Talabis v. People, G.R. No. 214647,
March 4, 2020, J. Hernando)
Consequences of the rule that a criminal
action is prosecuted under the direction
and control of the public prosecutor
(1) Public prosecutor has the power and
discretion to:
(a) Determine whether a prima facie case
exists
(b) Decide which of the conflicting
testimonies should be believed free
from the interference or control of the
offended party
(c) Subject only to the right against self-
incrimination, determine which witness
to present to court (Chua vs. Padillo,
G.R. No. 163797, April 24, 2007)
The right to prosecute vests the
prosecutor with a wide range of
discretion of whether, what and whom
to charge, the exercise of which
depends on factors which are best
appreciated by prosecutors. (Gonzalez
vs. Hongkong & Shanghai Banking
Corporation, G.R. No. 164904, October
19, 2007)
(2) The public prosecutor may turn over the
actual prosecution of the criminal case to the
private prosecutor but he may, at any time,
take over the actual conduct of the trial.
If the public prosecutor wants to ask
additional questions after the private
prosecutor was done with his questions, the
trial judge need not consult the private
prosecutor before granting leave to the
public prosecutor. (People vs. Tan, G.R. No.
177566, March 26, 2008)
Who may File Crimes that Cannot be
Prosecuted de officio
(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.
A complaint for purposes of preliminary
investigation by the fiscal need not be filed by the
offended party. "The rule has been that, unless
the offense subject thereof is one that cannot be
prosecuted de oficio [or is private in nature], the
same may be filed, for preliminary
investigation purposes, by any competent
person. (Talabis v. People, G.R. No. 214647,
[March 4, 2020])
571
Prosecution of a criminal action in the
Municipal Trial Court or Municipal Circuit
Trial Court
A criminal action in a Municipal Trial Court or in a
Municipal Circuit Trial Court shall also be
prosecuted under the direction and control of the
prosecutor. (Sec. 5, Rule 110, Rules of Court)
However, when the prosecutor assigned is not
available, the action may be prosecuted by:
(a) the offended party;
(b) any peace officer; or
(c) public officer charged with the enforcement of
the law violated (OCA Circular No. 39- 2002,
August 21, 2002)
Representation of the People of the
Philippines by the Office of the Solicitor
General (OSG) in appeals before the CA or
the SC
The authority to represent the State in the appeal
in criminal cases before the CA or the Supreme
Court is vested in the OSG which is the law office
of the government. (Cu v. Small Business
Guarantee and Finance Corp., G.R. No. 211222,
August 7, 2017)
The Solicitor General is regarded as the appellate
counsel of the People of the Philippines and
should be given the opportunity to be heard on
behalf of the People. (Lim v. Lim, G.R. No.
214163, July 1, 2019)
Likewise, in People vs. Sandiganbayan, (712
SCRA 359, 403, December 10, 2013), the court
held that "all cases elevated to the
Sandiganbayan and from the Sandiganbayan to
the Supreme Court, the Office of the
Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in
cases filed pursuant to Executive Order Nos. 1, 2,
14, and 14A, issued in 1986".
If a criminal case is dismissed or if there is an
acquittal, an appeal therefrom on the criminal
aspect may be undertaken only by the State
through the Solicitor General. The private
offended party may not take such appeal because
only the Solicitor General may represent the
People of the Philippines. The offended party,
however, may appeal the civil aspect of the case
even if the accused is acquitted in the criminal
case. (Ong v. Genio, 609 SCRA 188, 195-196,
December 23, 2009 citing Rodriguez v. Gadiane,
495 SCRA 368, 374, July 17, 2006)
Rationale: It is rooted in the principle that the
party affected by the dismissal of the criminal
action is the People and not the petitioner who
are more complaining witnesses. (Riano, Criminal
procedure, 2019 edition, p. 74)
A private prosecutor may be allowed to intervene
in criminal proceedings on appeal in the Court of
Appeals or the Supreme Court, his participation is
subordinate to the interest of the People; hence,
he cannot be permitted to adopt a position
contrary to that of the Solicitor General. (Carino
v. De Castro, 553 SCRA 688, 695, April 30, 2008)
The private offended party may, however, file an
appeal without the intervention of the OSG but
only insofar as the civil liability of the accused is
concerned. (Austria v. AAA, G.R. No. 205275,
June 28, 2022)
The real parties in interest in the civil aspect of a
decision are the offended party and the accused.
The public prosecutor has, generally, no interest
in appealing the civil aspect of a decision
acquitting the accused.
Instances when the private offended party
may appeal from or seek a review of the
dismissal of a criminal case without the
intervention of the Office of the Solicitor
General
(a) When there is a denial of due process of law
to the prosecution and to the State or to its
agents refuse to act on the case to prejudice
of the State and the private offended party.
(Morillo v. People , G.R. No. 198270,
December 9, 2015)
572
(b) When there is grave error committed by the
judge (ibid.)
(c) When interest of justice so requires (ibid.)
(d) When the challenged order affected the
interest of the State or the People, the case
involved a novel issue, and the end of justice
would be defeated if all those who came or
were brought to court were not afforded a
fair opportunity to present their sides. (Cu v.
Small Business Guarantee and Finance
Corp., G.R. No. 211222, August 7, 2017)
Prosecution for violation of Special Laws
The prosecution for violation of special laws shall
be governed by the provisions thereof. (Sec. 5,
Rule 110)
In the prosecution of special laws, the exigencies
of public service sometimes require the designati
on of special prosecutors from different governm
ent agencies toassist the public prosecutor.
The designation does not, however, detract from
the public prosecutor having control and
supervision over the case. (Bureau of Customs v.
Sherman, G.R. No. 190487, April 13, 2011)
Prosecution of “Private Crimes”
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 crimes of adultery and concubinage shall not
be prosecuted except upon a complaint filed by
the offended spouse.
The offended party cannot institute criminal
prosecution without including the guilty parties, if
both are alive, nor, in any case, if the offended
party has consented to the offense or pardoned
the offenders (Rule 110, Sec. 5).
Only the offended spouse, not otherwise
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)
• 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. (People vs.
Ilarde, G.R. No. L-58595, October 10, 1983)
(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:
573
 (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 or
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.
Summary Rules on Pardon:
(1) In crimes of adultery and concubinage, only
the offended spouse, not otherwise
incapacitated, can validly extend the pardon
to the offenders.
(2) In crimes of Seduction, Abduction and Act of
Lasciviousness:
(a) If the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
(b) 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;
(c) 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) 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)
Sufficiency of the Complaint or Information
A complaint or information is deemed sufficient if
it contains the following:
(a) The name of the accused; if the offense is
(b) committed by more than one person, all of
them shall be included in the complaint or
information;
(c) The designation of the offense given by
statute;
(d) The acts or omissions complained of as
constituting the offense;
(e) The name of the offended party;
(f) The approximate date of the commission of
the offense; and
(g) The place where the offense was committed
(Sec. 6, Rule 110)
The test is whether the crime is described in
intelligible terms with such particularity as to
apprise the accused, with reasonable certainty, of
the offense charged to enable the accused to
suitably prepare for his defense (Jalandoni v.
Office of the Ombudsman, G.R. Nos. 211751,
217212-80, 244467-535 & 245546-614, May 10,
2021)
The main purpose of requiring the elements of a
crime to be set out in the Information is to enable
the accused to suitably prepare his defense
because since he is presumed to have no
independent knowledge of the facts that
constitute the offense. (People v. XXX, G.R. No.
218277, November 9, 2020, J. Hernando)
For an information to be sufficient, it must validly
charge an offense. 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 (Miguel v. Sandiganbayan,
675 SCRA 560, 570, July 4, 2012)
Objections relating to the form of the complaint
or information cannot be made for the first time
on appeal. The accused-appellant should move
before arraignment either for a bill of particulars,
for instance, if he wants to know the exact date
of the commission of the allege offense. He may
also move for the quashal of the information if it
574
does not conform to the prescribed form. If he
fails to pursue either remedy, he is deemed to
have waived his objections to any formal defect
in the information. (People v. Teodoro, 607 SCRA
307, 321-322, December 4, 2009)
Also, an accused is deemed to have waived his
right to assail the sufficiency of the information
when he voluntarily entered a plea when
arraigned and participated in the trial. (Frias v.
People, 534 SCRA 654, 660, October 4, 2007)
Where the objection, however, is based on lack
of jurisdiction over the subject matter, the same
may be raised or considered mow proprio by the
court at any stage of the proceedings or on
appeal (Fukuzume v. People, G.R. No. 143647,
November 11, 2005)
Rules on Questioning in the insufficiency of
the complaint or information
(a) objections as to the form of the complaint
or information cannot be made for the first
time on appeal. If appellant found the
Information insufficient, he should have
moved before arraignment either for a bill of
particulars, for him to be properly informed
of the exact date of the alleged rape; or
for the quashal of the Information, on the
ground that it did not conform with the
prescribed form. As appellant failed to
pursue either remedy, he is deemed to
have waived objection to any formal defect
in the Information. (People v. ZZZ, G.R. No.
232329, April 28, 2021, J. Hernando)
Exception: When the defect consists in the
lack of authority of the prosecutor who filed
the information, as such defect would be
jurisdictional. (Sec. 9, Rule 117)
(b) Objections relating to the subject matter the
same may be raised or considered motu
proprio by the court at any stage of the
proceedings or on appeal. (Villagracia v.
Fifth Shari'a District Court, G.R. No. 188832,
April 23, 2014)
Name of the Accused
In all criminal prosecutions, the real offended
party is the People of the Philippines for a crime
is an outrage against, and its vindication is in
favor of, the people in a sovereign state. (M. De
Leon, Remedial Law Reviewer-Primer, 2021
Edition, p. 607)
However, a crime is also an outrage against the
offended or aggrieved party, the victim of the
crime. Thus, he is entitled to intervene in its
prosecution in cases where the civil action is
impliedly instituted therein. (ibid.)
Hence, a complaint which is filed with the MTC or
prosecutor for preliminary investigation is usually
in the name of the offended party as complainant.
(ibid.)
Rules in Designating the Name of the
Accused
(1) The complaint or information must name
and surname of the accused, or any
appellation or nickname by which he has
been or is known;
(2) If his name cannot be ascertained, he must
be described under a fictitious name. A
description of the accused under a fictitious
name must be accompanied by a statement
that his true name is unknown; and
(3) If, later, his true name is disclosed by him or
becomes known in some other manner, his
true name shall be inserted in the complaint
or information and in the records of the case.
(Sec. 7, Rule 110)
In every criminal case, the task of the prosecution
is always two-fold, that is:
(1) to prove beyond reasonable doubt the
commission of the crime charged; and
(2) to establish with the same quantum of proof
the identity of the person or persons
responsible therefor, because, even if the
commission of the crime is a given, there can
be no conviction without the identity of the
malefactor being clearly ascertained.
(People vs. Yau, G.R. No. 208170, August
20, 2014)
575
Positive identification pertains essentially to the
proof of identity. 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.
That the witnesses called him Pablito, instead of
Pablo, his true name, does not affect his positive
identification. (People v. Amodia, 584 SCRA 518,
535, April 7, 2009)
What matters in, convicting an accused is his
identification as the person when committed the
crime, not the name under which he was arrested
or charged. (People v. Bonito, 342 SCRA 405,
429, October 10, 2000)
The identity of the accused must, however, be
proven. Where in identifying the accused who
allegedly raped her, the victim showed reluctance
in identifying the accused then eventually pointed
to the accused that "it might be him," the
identification is uncertain. (People v. Tumambing,
644 SCRA 482,485, March 2, 2011)
Designation of the offense; How the nature
of the offense is determined
(a) The designation of the offense requires, as a
rule, that the name given to the offense by
statute shall be stated in the complaint or
information. If the statute gives no designation to
the offense, then reference shall be made to the
section or subsection punishing it;
(b) To be included in the complete designation of
the offense is an averment of the acts or
omissions constituting the offense; and
(c) The complaint or information shall specify the
qualifying and aggravating circumstances of the
offense. (Sec. 8, Rule 110)
The constitutional provision requiring the accused
to be "informed of the nature and cause of the
accusation against him" is for him to adequately
and responsively prepare his defense. The
prosecutor is not required, however, to be
absolutely accurate in designating the offense by
its formal name in the law. It is hornbook doctrine
that what determines the real nature and cause
of the accusation against an accused is the actual
recital of facts stated in the information or
complaint 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. (Gamaro
v. People, G.R. No. 211917, February 27, 2017)
No information for a crime will be sufficient if it
does not accurately and clearly
allege the elements of the crime charged. Every
element of the offense must be stated in the
information. What facts and circumstances are
necessary to be included therein must be
determined by reference to the definitions and
essentials of the specified crimes. (Go v. People,
G.R. No. 249563, March 9, 2022)
Allegations prevail over the designation of
the offense in the information
The nature of a criminal charge is determined by
the recital of the ultimate facts and circumstances
in the complaint or information and not by the
caption of the information or the provision of the
law claimed to have been violated. (People v.
Francica, G.R. No. 208625, September 6, 2017)
In other words, the facts alleged in the body of
the information, not the technical name given by
the prosecutor, determine the character of the
crime (People v. Delector, G.R. No. 20026,
October 4, 2017)
Note: The failure to designate the offense by
statute or to mention the specific provision
penalizing the act, or an erroneous reference to
the law violated does not vitiate the information
if the facts alleged therein clearly recite the facts
576
constituting the crime charged. (Carbonell y
Ballesteros v. People, G.R. No. 246702, April 28,
2021)
Cause of Accusation
In informing the accused of the cause of
accusation against him, it is not necessary to
employ the words used in the statute alleged to
have been violated. It is sufficient for the
complaint or information to use ordinary and
concise language sufficient to enable a person of
common understanding to know the following:
(a) the offense being charged;
(b) the acts or omissions complained of as
constituting the offense; and
(c) the qualifying and aggravating circumstances.
(Sec. 9, Rule 110)
General An accused cannot be convicted
Rule of an offense, unless it is clearly
charged in the complaint or
information. Constitutionally, he
has a right to be informed of the
nature and cause of the
accusation against him. To
convict him of an offense other
than that charged in the
complaint or information
would be violative of this
constitutional right. Indeed,
the accused cannot be convicted
of a crime, even if duly
proven, unless it is alleged or
necessarily included in the
information filed against him.
(People v. Caballes, G.R. Nos.
250367 & 250400-05, August 31,
2022, J. Hernando)
Exception When there is variance between
the offense charged in the
complaint or information and that
proved, and the offense as
charged is included in or
necessarily includes the offense
proved, the accused shall be
convicted of the offense proved
which is included in the offense
charged, or of the offense
charged which is included in the
offense proved. (Sec. 4, Rule 120)
Rule on Allegations of Qualifying and
Aggravating Circumstances
The rule is that qualifying circumstances must be
properly pleaded in the information in order not
to violate the accused's constitutional right to be
properly informed of the nature and cause
of the accusation against him. The purpose is to
to allow the accused to fully prepare for his
defense, precluding surprises during the trial.
Significantly, the appellant never claimed that he
was deprived of his right to be fully apprised
of the nature of the charges against him because
of the style or form adopted in the Information.
(Bustillo v. People, G.R. No. 216933, March 15,
2021)
However, while it is necessary to aver the facts
constituting the qualifying and aggravating
circumstances, it is not, sufficient for example, to
merely state that the offense was committed with
treachery without alleging the facts that gave rise
to treachery. (People v. Valdez, 690 SCRA 563,
570, February 13, 2013)
The qualifying circumstances need not be
preceded by descriptive words such as
"qualifying' or "qualified by" to properly qualify an
offense. It is not the use of the words "qualifying"
or "qualified by" that raises a crime to a higher
category, but the specific allegation of an
attendant circumstance which adds the essential
element raising the crime to a higher category.
(People v. Rosas, 570 SCRA 117, 132, October
24, 2008)
The rule is that "in order for an accused to be
convicted of qualified rape, the Information must
allege that the victim is under eighteen (18)
years of age at the time of rape and the accused
577
is the victim's parent, ascendant, stepparent,
guardian, or relative by consanguinity or affinity
within the third civil degree, or common-law
spouse of the victim's parent. These are special
qualifying circumstances which alter the
nature of the crime of rape and warrant the
increase of the imposable penalty. (People v.
XXX, G.R. No. 225781, November 16, 2020, J.
Hernando)
Place of Commission of the offense
The statement of the place of commission of an
offense is sufficient if it can be understood from
the allegations in the complaint or information:
(1) that the offense was committed or
(2) some of its essential elements occurred at
some place within the jurisdiction of the
court (Sec. 10, Rule 110, Rules of Court).
Where the particular place where the offense
was committed is, however, an essential element
of the offense or is necessary for its
identification, it is implied from the rule that the
description of the place of commission of the
offense must be specific. (Riano, Criminal
procedure, 2019 edition, p. 133)
DATE OF THE COMMISSION OF THE
OFFENSE (Sec. 11, Rule 110)
General It is not necessary to state in the
Rule complaint or information the
precise date the offense was
committed except when the date
of commission is a material
element of the offense. The
offense may, thus, be alleged to
have been committed on a date as
near as possible to the actual date
of its commission. (Sec. 11, Rule
110)
Exception When the date is a material
ingredient of the offense (People
v. ZZZ, G.R. No. 232329, April 28,
2021, J. Hernando)
At the minimum, an indictment must contain all
the essential elements of the offense charged to
enable the accused to properly meet the charge
and duly prepare for his defense. (Villarba v.
Court of Appeals, G.R. No. 227777, June 15,
2020)
In crimes where the date of commission of the
crime is not an essential element thereof. In
fact, the specific Rule cited by accused-appellant
states that "it is not necessary to state
in the Information the precise date the offense
was committed except when it is a material
ingredient of the offense." The date of
commission is not even an element of the crime
of rape which elements are: (1) sexual congress;
(2) with a woman; (3) done by force and without
consent; (4) the victim is under [18] years of age
at the time of the rape; (5) the offender is a
parent (whether legitimate, illegitimate or
adopted) of the victim. (People v. ZZZ, G.R. No.
232329, April 28, 2021, J. Hernando)
In one case, the phrase "on or about the year
1992"was held to encompass not only the twelve
(12) months of 1992 but includes the years prior
and subsequent to 1992, e.g., 1991 and 1993, for
which accused-appellant has to virtually account
for his whereabouts. Hence, the failure of the
prosecution to allege with particularity the date of
the commission of the offense and, worse, its
failure to prove during the trial the date of the
commission of the offense as alleged in the
information, deprived accused-appellant of his
right to intelligently prepare for his defense and
convincingly refute the charges against him
(People v. Pareja, G.R. No. 202122, January 15,
2014).
Name of the offended party
The offended party is the person against whom
or against whose property the offense was
committed. (Sec. 12, Rule 110)
(a) Natural Person
• The complaint or information must state
the name and surname of the offended
party, or any appellation or nickname by
which such person has been or is known;
578
 • However, if there is no better way of
identifying him, he must be described
under a fictitious name. (Sec. 12, Rule 110)
• If later on, the true name of the offended
party is disclosed or ascertained, the court
must cause such true name to be inserted.
(Sec. 12(b), Rule 110)
Note: If the subject matter of the offense is
generic and not identifiable, such as the money
unlawfully taken, an error in the designation of
the offended party is fatal and would result in the
acquittal of the accused. However, if the subject
matter of the offense is specific and identifiable,
such as a warrant, or a check, an error in the
designation of the offended party is immaterial.
(Senador v. People, G.R. No. 201620, March 6,
2013)
(b) Juridical Person
• It is sufficient to state its name, or any
name or designation by which it is known
or by which it may be identified, without
need of averring that it is a juridical person
or that it is organized in accordance with
law. (Sec. 12(c), Rule 110)
(c) Offenses against Property
• If the name of the offended party is
unknown, the property must be described
with such particularity as to properly
identify the offense charged. (Sec. 12(a),
Rule 110)
• In case of offenses against property, the
designation of the name of the offended
party is not absolutely indispensable for as
long as the criminal act charged in the
complaint or information can be properly
identified. (Sayson v. People, 166 SCRA
680, October 28, 1988)
Duplicity of the Offense
Duplicity presupposes that there is a joinder of
distinct offenses in one complaint or information.
(Riano, Criminal procedure, 2019 edition, p. 107)
General rule Exception
A single More than one offense may,
complaint or however, be charged under
information one complaint or information
must charge when the law prescribed a
only one single punishment for various
offense. offenses.
(Sec. 13, Rule 110)
Example:
(1) Complex and compound crimes treated
under Art. 48 of the Revised Penal Code
(2) When an offense is a necessary means to
commit the other
(3) In the case of a special complex crime
(Riano, Criminal procedure, 2019 edition, p.
108)
(4) Continuous crimes or delito continuado
(5) Crimes susceptible of being committed in
various modes
The act of approving the applications for
legalization of the stay of thirty-two (32) aliens
despite their allegedly being disqualified is but a
single offense to be charged under one
information only. The alleged offense is a series
of acts committed on the same period and
impelled by single intent or resolution known as
"delito continuado," "continued crime" or
sometimes, "continuous crime" (Santiago v.
Garchitorena, 228 SCRA 214, 223, December 2,
1993)
When the charge merely describes in a single
information the different modes by which the
offense was committed like alleging "manifest
partiality" "evident bad faith" and "gross
inexcusable negligence," no distinct offenses are
charged. (Gallego v. Sandiganbayan, 115 SCRA
793, 796-797, July 30, 1982)
Each incident of sexual intercourse and lascivious
act with a child under R.A. 7610, is a separate
and distinct offense, each of which is a subject of
a separate information. The offense is similar to
rape or act of lasciviousness under the Revised
Penal Code in which each act of rape or lascivious
579
conduct should be the subject of separate
information. (Lavides v. Court of Appeals, 324
SCRA 321, 334, February 1, 2000)
The rationale behind this rule prohibiting
duplicitous complaints or information is to give
the accused the necessary knowledge of the
charge against him and enable him to sufficiently
prepare for his defense. The State should not
heap upon the accused two or more charges
which might confuse him in his defense. (People
v. Court of Appeals, G.R. No. 183652, February
25, 2015)
Waiver of duplicity of the offense
Duplicity of the offense is a ground for a motion
to quash. (Sec. 3(f), Rule 117) 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 said
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.
(Sec. 3, Rule 120; Riano, Criminal procedure,
2019 edition, p. 115-116)
When two or more offenses are charged in a
single complaint or information, the accused must
object to the duplicity before trial. If he does not
so object, the court may convict him of as many
offenses as are charged and proved, and impose
on him the penalty for each offense. (Sec. 3, Rule
120; People v. Chingh, G.R. No. 178323, March
16, 2011)

Amendment or Substitution of the Complaint or Information

AMENDMENT SUBSTITUTION
Definition and Correction of an error or an omission in Substitution requires or presupposes that
consequence a complaint or an information. It is the new information involves a different
effected by adding or striking out an offense which does not include or is not
allegation or the name of any party necessarily included in the original
by correcting a mistake in the name of charge.
a party or a mistaken or inadequate The accused cannot claim double
allegation or description in any other jeopardy.
respect. So that the actual merits of the
controversy may speedily be
determined, without regard to
technicalities, and in the most
expeditious and inexpensive manner.
(Sec. 1, Rule 10)
When made May be made before or after the At any time before judgment provided
defendant pleads. double jeopardy has NOT attached.
Nature of the Either formal or substantial changes. Necessarily involves a substantial change
changes from the original charge.
Need of leave of Can be effected without leave of court Must be with leave of court
court before plea has been entered
Preliminary There is no need for another preliminary Another preliminary investigation is
investigation investigation and the retaking of the required and the accused has to plead
plea of the accused. anew to the new information.
As to offense the same offense charged in the original new information involves a different
information offense

580
 AMENDMENT
Double Jeopardy Accused can invoke double jeopardy if
made after the plea
Plea Accused need not to enter another plea
Requisites/ (1) BEFORE the plea
Limitations
General Rule: WITHOUT leave of court
Exception: When the amendment
downgrades the nature of the offense
charged or it excludes any accused from
the complaint or information.
SUBSTITUTION
Cannot invoke double jeopardy since
different offense
Accused need to enter another plea
(1) No judgment has yet been rendered;
(2) The accused cannot be convicted of
an offense charged or of any other
offense necessarily included therein;
and,
(3) The accused would not be placed in
double jeopardy.

(2) AFTER the plea

General Rule: covers only formal

amendment;
Exception: Substantial amendment
may be made after arraignment, if the
same is BENEFICIAL to the accused
(Ricarze vs. Court of Appeals, G.R. No.
160451, February 09, 2007)

• Leave of court is obtained; and,

• Amendment is NOT prejudicial to
the rights of the accused

Formal Amendments any change in the act imputed to the

Petitioner is charged as a principal in the case for
murder. The addition of the phrase “conspiring,
confederating and helping one another” does not
change the nature of petitioner’s participation as
principal in the killing; it is a mere formal
amendment (Buhat vs. CA, G.R. No.
119601,December 17, 1996).
The Court reasoned that while the amended
information was for murder, a reading of the
information shows that the only change made
was in the caption of the case; and in the opening
paragraph or preamble of the information, with
the crossing out of word “Homicide” and its
replacement by the word “Murder”. There was NO
change in the recital of facts constituting the
offense charged or in the determination of the
jurisdiction of the court. The averments in the
amended information for murder are exactly the
same as those already alleged in the original
information for homicide, as there was not at all
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).
The following have been held to be mere formal
amendments: (1) new allegations which relate
only to the range of the penalty that the court
might impose in the event of conviction; (2) an
amendment which does not charge another
offense different or distinct from that charged in
the original one; (3) additional allegations
which do not alter the prosecution's theory of the
case so as to cause surprise to the accused and
affect the form of defense he has or will assume;
(4) an amendment which does not adversely
affect any substantial right of the accused; and
(5) an amendment that merely adds
specifications to eliminate vagueness in the
information and not to introduce new and
material facts, and merely states with additional

581
precision something which is already contained in
the original information and which adds nothing
essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced
by the amendment is whether a defense under
the information as it originally stood would be
available after the amendment is made,
and whether any evidence defendant might have
would be equally applicable to the information in
the one form as in the other. An amendment to
an information which does not change the nature
of the crime alleged therein does not affect the
essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the
new averment had each been held to be one of
form and not of substance. (Leviste v. Alameda,
G.R. No. 182677, August 3, 2010)
The test as to when the rights of an accused are
prejudiced by the amendment of a complaint or
information is: when a defense of the accused,
under the original complaint or information 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, as amended (Kummer vs. People,
G.R. No. 174461, September 11, 2013)
Substantial Amendments
Petitioner in this case maintains that, having
already pleaded "not guilty" to the crime of
homicide, the amendment of the crime charged
in the information from homicide to murder is a
substantial amendment prejudicial to his right to
be informed of the nature of the accusation
against him. He utterly fails to dispute, however,
that the original information did allege that
petitioner stabbed his victim "using superior
strength". And this particular allegation qualifies
a killing to murder, regardless of how such a
killing is technically designated in the information
filed by the public prosecutor (Buhat vs. CA, G.R.
No. 119601,December 17, 1996).
A substantial amendment consists of the recital of
facts constituting the offense charged and
determinative of the jurisdiction of the
court. Whether the amendment of the
Information from homicide to murder is "one of
substance with very serious consequences." The
amendment involved in the present case consists
of additional averments of the circumstances of
treachery, evident premeditation, and cruelty,
which qualify the offense charged from homicide
to murder. It being a new and material element
of the offense, petitioner should be given the
chance to adduce evidence on the matter. Not
being merely clarificatory, the amendment
essentially varies the prosecution's original theory
of the case and certainly affects not just the form
but the weight of defense to be mustered by
petitioner. (Leviste v. Alameda, G.R. No. 182677,
August 3, 2010)
Principle of Variance: Variance between the
indictment and the proof
(1) 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.
(2) When the offense proved is more serious than
and includes the offense charged, the
defendant shall be convicted only of the
offense charged.
(3) 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: To resolve the variance, decide in favor of
the accused.
Venue in criminal actions
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: As a rule, the criminal action shall
be instituted and tried in the court of the
municipality or territory:
582
(a) where the offense was committed, or
(b) where any of its essential ingredients
occurred (Sec. 15[a], Rule 110).
Exceptions:
(1) When the offense was committed under
the circumstances enumerated in Art. 2 of
the RPC, the offense is cognizable before
the Philippine courts even if committed
outside the territory of the Philippines. The
offense shall be cognizable by the court
where the criminal action is first filed. (Sec.
15[d], Rule 110).
(2) Where the Supreme Court, pursuant to its
constitutional powers, orders a change of
venue or place of trial to avoid miscarriage
of justice; Ex. Ampatuan Case. (Sec. 5[4],
Art. VIII, 1987 Constitution).
(3) Where an offense is committed in a train,
aircraft or other public or private vehicle in
the course of its trip. Cognizable by the
court where:
(a) actual place where the offense was
committed
(b) municipality or territory where said
train, aircraft or vehicle passed during
its trip
(c) in the place of departure and arrival
(Sec. 15[b], Rule 110).
(4) Where an offense is committed on a board
vessel of its voyage. Cognizable by the
court where:
(a) place of the commission of the crime
(b) court of the first port of entry
(c) court of municipality or territory
where the vessel passed during the
voyage (Sec. 15[c], Rule 110).
(5) Where the case is cognizable by the
Sandiganbayan, the criminal action need not
be filed and tried in the place where the act
was committed but generally, where the
court actually sits in Quezon City.
(6) Where the offense is written defamation.
Cognizable by the court where:
(a) in the RTC of the province or city
where the alleged libelous article was
printed and first published – as
evidenced or supported by, for
instance, the address of their editorial
or business offices in the case of
newspapers, magazines or serial
publications.
(b) public officer – province or city where
the offended party held office at the
time of the commission of the crime
(c) private individual – province or city
where he actually resided at the time
of the commission of the crime
The civil action for damages in cases of
written defamation, if filed simultaneously
with the criminal action, or even if filed
separately, shall also be filed with the RTC.
As to the venue, it shall be determined in the
same manner as in the criminal action.
(Riano, Criminal procedure, 2019 edition,
pp. 120-123)
(7) Continuing offenses;
(8) 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);
(9) Piracy, which is triable anywhere;
(10) 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).
583
Intervention of the Offended Party in Criminal Rule Applicable
Action
One of the issues in a criminal case being the civil
liability of the accused arising from the crime, the
General Rule Exceptions governing law is the Rules of Criminal Procedure,
Offended party 1. Where from the not the Rules of Civil Procedure which pertains to
has the right to nature of the crime a civil action arising from the initiatory pleading
intervene by and the law defining that gives rise to the suit. (Hun Hyung Park v.
counsel in the and punishing it, no Eung Won Choi, G.R. No. 165496, February 12,
prosecution of the civil liability arises in 2007)
criminal action favor of the offended
where the civil party; and, Purpose of the criminal and civil action
action for 2. Where the offended
recovery of civil party has waived his Criminal Action Civil Action
liability is right to civil To punish the For the resolution,
instituted in indemnity or has offender in order to reparation or
criminal action expressly reserved deter him from indemnification of the
pursuant to Rule his right to institute a committing the same private offended party
111. (Rule 110, civil action or has or similar offense, to for the damage and
Sec. 16) already instituted isolate him from injury he sustained by
said action. society, reform and reason of the delictual
rehabilitate him, or in or felonious acts of
general, to maintain the accused.
C. PROSECUTION OF CIVIL ACTION social order
(RULE 111) (Ricarze vs. Court of Appeals, G.R. No. 160451,
February 9, 2007)
When a criminal action is instituted, the civil
action for the recovery of the civil liability arising Institution of Criminal and Civil Action
from the offense charged shall be deemed (Sec. 1, Rule 111)
instituted with the criminal action. (Sec. 1[a],
Rule 111) A single act or omission that causes damage to
an offended party may give rise to two separate
Reason: The principle that every person civil liabilities on the part of the offender:
criminally liable for a felony is also civilly under (a) civil liability ex delicto
Article 100 of the Revised Penal Code. (b) independent civil liability

Generally, a criminal case has two (2) aspects: Distinction between two (2) separate civil
(1) the civil – the individual member of that liabilities
society whose person, right, honor, chastity
or property was actually or directly injured
Civil liability ex Independent
or damaged by the same punishable act or
omission delicto civil liability
(2) the criminal – the society in which he lives in Source Arising from the Arising from Arts.
or the political entity, called the States,
offense charged 32, 33 and 34
whose law he has violated (Lee Pue Liong v.
Chua Pue Chin Lee, G.R. No. 181658, August (arise from law and
7, 2013) are commonly
called independent
civil actions) and

584
 Art. 2176 (arises opportunity to make
from quasi-delict) such reservation.

Institu- Deemed Not deemed Note: Actions under Arts.

tion instituted with the instituted with the 32, 33, 34, and 2176 of the
filing of the filing of the criminal Civil Code may be filed
separately and prosecuted
criminal action action
independently even without
Reser- Need to be Need not to be any reservation in the
vation reserved before it reserved because it criminal action. The failure
to make a reservation in the
is filed separately is the law which has
criminal action is not a
from the criminal made the waiver of the right to file a
action reservation for such separate and independent
civil actions civil action based on these
articles of the Civil Code
Under the Rules, only the civil liability of the (Casupanan v. Laroya, 388
accused arising from the crime charged is SCRA 28, 37, August 26,
deemed included in a criminal action. Thus, the 2002)
civil actions referred to in Arts. 32, 33, 34 and
2176 of the Civil Code shall remain "separate, (3) Institutes the civil action prior
distinct and independent" of any criminal to the criminal action (Sec.
prosecution which may be based on the same act. 1(a), Rule 111)
(Philippine Rabbit Bus Lines, Inc. v. People, 427 Exeption (1) Claims arising out of a
SCRA 456, 468, April 14, 2004) to the dishonored check under BP
exceptions 22 where no reservation to
(1) Civil Liability Ex Delicto file such civil action shall be
allowed
General When a criminal action is (2) Claims arising from an
Rule instituted, the civil action for the offense which is cognizable
recovery of the civil liability by the Sandiganbayan (Sec.
arising from the offense charged 4, PD 1606 as amended by
shall be deemed instituted with R.A. No. 8249)
the criminal action (Sec. 1(a),
Rule 111) Because of the rule that the civil action is
Exception (1) The offended party waives impliedly instituted with the criminal action, the
the civil action trial court should, in case of conviction, state the
civil liability or damages caused by the wrongful
(2) Reserves the right to institute act or omission to be recovered from the accused
it separately. by the offended party, if there is any and if the
filing of the civil action has not been reserved,
Shall be made: previously instituted or waived. (Hun Hyung Park
(a) Before the prosecution v. Eun Wong Choi, 515 SCRA 502, 513, February
starts presenting its 12, 2007)
evidence
(b) Under circumstances The real parties in interest in the civil aspect of a
affording the offended decision are the offended party and the accused.
party a reasonable Hence, either the offended party or the accused
may appeal the civil aspect of the judgment
despite the acquittal of the accused. The public

585
prosecutor generally has no interest in appealing
the civil aspect of a decision acquitting the
accused. The acquittal ends his work. The case is
terminated as far as he is concerned. (ibid.)
(2) Independent Civil Liability
Civil liability that may be pursued independently
of the criminal proceedings. These are in cases
provided under the following Articles in the New
Civil Code:
(a) When the civil action is based on an
obligation not arising from the act or
omission complained of as a felony, such civil
action may proceed independently of the
criminal proceedings and regardless of the
result of the latter. (Art. 31, NCC)
(b) Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the rights and
liberties of another person mentioned in Art.
32 of the NCC (Sec. 3, Rule 111)
(c) In cases of defamation, fraud, and physical
injuries a civil action for damages, entirely
separate and distinct from the criminal
action (Art. 33, NCC; Sec. 3, Rule 111)
(d) The peace officer shall be primarily liable for
damages, and the city or municipality shall
be subsidiarily responsible when a member
of a city or municipal police force refuses or
fails to render aid or protection to any person
in case of danger to life or property (Art. 34,
NCC; Sec. 3, Rule 111)
(e) In case of quasi delicts (Art. 2176, NCC; Sec.
3, Rule 111)
In the cases provided for in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the
offended party. (Sec. 3, Rule 111)
(1) The right to bring the civil action shall
proceed independently of the criminal action
(Sec. 3, Rule 111) and regardless of the
results of the latter (Art. 31, NCC).
(2) The quantum of evidence required is
preponderance of evidence (Sec. 3, Rule
111)
(a) The right to bring the foregoing actions
based on the Civil Code need not be
reserved in the criminal prosecution,
since they are not deemed included
therein.
(b) The institution or waiver of the right to
file a separate civil action arising from the
crime charged does not extinguish the
right to bring an independent civil action.
(c) Even if a civil action is filed
independently, the ex delicto civil liability
in the criminal prosecution remains, and
the offended party may — subject to the
control of the prosecutor — still intervene
in the criminal action, in order to protect
the remaining civil interest therein.
(Philippine Rabbit Bus Lines, Inc. v.
People, 427 SCRA 456, 470-471, April 14,
2004)
(3) In no case, however, may the offended party
recover damages twice for the same act or
omission charged in the criminal action (Sec.
3, Rule 111)
(4) Payment of civil liability does not extinguish
criminal (Cabico v. Dimaculangan-Querijero,
522 SCRA 300, 310, April 27, 2007)
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 sep
arate, distinct and independent of the civil action
"deemed instituted” in the criminal action.
(Supreme Transportation Liner, Inc. v. San
Andres, G.R. No. 200444, August 15, 2018)
Reservation of the civil action
If the offended party desires to reserve the right
to institute the civil action after the criminal action
has been instituted, the reservation shall be made
before the prosecution starts presenting its
evidence. The reservation is to be made under
circumstances that would afford the offended
party a reasonable opportunity to make such
reservation. (Sec. 1(a), Rule 111)
586
Reason for the reservation of civil action – is to
prevent the offended party from recovering
damages twice for the same act or omission.
Reservation is No reservation is
required required
The 1988 amendment Actions under Articles
of the Rules of 32, 33, 34 and 2176
Criminal Procedure may be filed
explicitly requires separately and
reservation of the civil prosecuted
action. independently even
without reservation in
the criminal action.
Civil liability in Batas Pambansa Blg. 22
The criminal action for violation of BP 22 shall be
deemed to include the corresponding civil action.
No reservation to file suchcivil action separately
shall be allowed. Thus with respect to
criminal actions for violation of BP 22, it is
explicitly clear that the corresponding civil action
is deemed included and tha a reservation to file
such separately is not allowed. (Nissan Gallery-
Ortigas v. Felipe, G.R. No. 199067, November 11,
2013)
While the rule allows the offended party to
reserve the right to institute the civil action, such
right does not apply to a prosecution of a criminal
action for violation of BP 22. The criminal action
in this case shall be deemed to include the
corresponding action. No reservation to file such
civil action separately shall be allowed. (ibid)
Civil liability in Batas Pambansa Blg. 22
The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file
such civil action separately shall be allowed. (Sec.
1(b), Rule 111)
It should be observed that what the rule prohibits
is the filing of a reservation to file the civil action
arising from B.P. 22. It does not prohibit the
waiver of the civil action or the institution of the
civil action prior to the criminal action. (Riano,
Criminal procedure, 2019 edition, p. 156)
Even under the amended rules, a separate
proceeding for the recovery of civil liability in
cases of violation of B.P. 22 is allowed when the
civil case is filed ahead of the criminal case (Lo
Bun Tiong v. Balboa, 542 SCRA 504, 512, January
28, 2008, quoting the earlier case of Hyatt
Industrial Manufacturing Corp. v. Asia Dynamic
Electrix Corp., 465 SCRA 454, July 29, 2005)
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the
filing fees based on the amount of the check
involved, which shall be considered as the actual
damages claimed. Where the complaint or
information also seeks to recover liquidated,
moral, nominal, temperate or exemplary
damages, the offended party shall pay
additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged
but any of these damages are subsequently
awarded by the court, the filing fees based on the
amount awarded shall constitute a first lien on the
judgment. (Sec. 1(b), Rule 111)
When Separate Civil Action is Suspended
(1) After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final
judgment has been entered in the criminal
action. (Sec. 2, Rule 111)
(2) If the civil action is filed prior to the criminal
action, and during the pendency of such civil
action, the criminal action is commenced,
the civil action already instituted shall be
suspended, in whatever stage of the
proceedings it may be found, as long as no
judgment on the merits has yet been
entered in the civil action. (ibid.)
(3) The suspension shall last until final judgment
is rendered in the criminal action. (ibid.)
(4) During the pendency of the criminal action,
the running of the period of prescription of
the civil action which cannot be instituted
separately or whose proceeding has been
suspended shall be tolled.
General The extinction of the penal action
Rule does not carry with it extinction of
the civil action.
587
 Exception If there is a finding in a final General No filing fees shall be required for
judgment in the criminal action Rule actual damages
that the act or omission from Exception As otherwise provided in these
which the civil liability may arise Rules (Sec. 1(a), Rule 111)
did not exist, the civil action based Examples:
on delict shall be deemed (a) In B.P. 22 cases, the filing
extinguished. fees shall be paid based on
(Sec. 2, Rule 111) the amount of the check and
shall be paid in full (Sec. 1(b),
Note that the above rule applies only to civil Rule 111)
actions arising from the offense charged — not to In estafa cases, the filing fees shall
independent civil actions. These actions proceed be paid based on the amount
independently of the criminal action (See Sec. 3, involved (Sec. 21[a], A.M. No. 04-
Rule 111; Art. 31, NCC; Riano, Criminal 2-04, August 16, 2004)
procedure, 2019 edition, p. 157).
Filing fees shall be paid by the offended party
Counterclaim, cross-claim, third-party upon the filing of the criminal action in court
claim in a criminal action where he seeks for the enforcement of the civil
liability of the accused by way of moral, nominal,
No counterclaim, cross-claim or third-party temperate or exemplary damages but other than
complaint may be filed by the accused in the actual damages, and where the amount of such
criminal case, but any cause of action which could damages is specified in the complaint or
have been the subject thereof may be litigated in information. If the amount is not specified in the
a separate civil action. (Sec. 1(a), Rule 111) complaint or information but any of the damages
is subsequently awarded, the filing fees assessed
Rules on filing fees; Payment of Filing Fees in accordance with the Rules, shall constitute a
in case of Claim for Damages first lien on the judgment awarding such
damages. (Sec. 1(a), Rule 111; Riano, Criminal
Filing fees shall be paid when damages are being procedure, 2019 edition, p. 158-159)
claimed by the offended party.
Effect of Death on Civil Action
The rule is as follows:
(1) When the amount of damages, other than Criminal Civil Independent
actual, is specified/alleged in the complaint Action Liability Civil Actions
or information filed in the court, then the Ex
corresponding filing fees shall be paid by the Delicto
offended party upon filing thereof in court Prior to Final Judgement / Pending Appeal
for trial Extinguished No effect. May be
(2) In any other cases, however – ex. when the (People v. Paras, 739 continued against
amount of damages is not so alleged in the SCRA 179, 183, the estate or legal
complaint or information filed in the court, October 22, 2014) representative of
then the corresponding filing fees need not the accused after
be paid and shall simply constitute a first lien proper substitution
on the judgment except in an award for or
actual damages. (Riano, Criminal procedure, against the estate
2019 edition, pp. 158-159) as the case may be
After arraignment

588
 Extinguished No effect. May be a compromise or novation of contract, for it is a
(People v. Paras, 739 continued against public offense which must be prosecuted and
SCRA 179, 183, the estate or legal punished by the government on its own motion,
October 22, 2014) representative of even though complete reparation [has] been
the accused after made of the damage suffered by the private
proper substitution offended party. Since a criminal offense like
or estafa is committed against the State, the private
against the estate offended party may not waive or extinguish
as the case may be the criminal liability that the law imposes for the
Before arraignment commission of the crime." (Metropolitan Bank
Dismissed Dismissed, but
and Trust Company v. Reynado, G.R. No. 164538,
without prejudice August 9, 2010)
to any civil action
In a catena of cases, it was ruled that criminal
which the offended
party may file liability for estafa is not affected by a compromise
or novation of contract. in a crime of estafa,
against the estate
of the deceased reimbursement or belated payment to the
offended party of the money swindled by the
(Sec. 4, Rule 111)
accused does not extinguish the criminal liability
of the latter. (ibid.)
The death of the accused extinguishes his/her
personal criminal liability. Additionally, the
A compromise or settlement entered into by the
pecuniary penalties of the accused will only be
parties after the commission of the crime
extinguished if he/she dies before final judgment
will not and does not extinguish petitioner’s
is rendered. (Re: Investigation Report on the
liability liability for estafa. Therefore, the parties
Alleged Extortion Activities of Presiding Judge
entering into an agreement with the private
Godofredo B. Abul, Jr., Branch 4, Regional Trial
complainant expressing its unwillingness to
Court, Butuan City, Agusan Del Norte, A.M. No.
participate in further proceedings after it receives
RTJ-17-2486 (Resolution), September 8, 2020, J.
monetary retribution, does not remove from the
Hernando)
State the imprimatur of imposing the proper
penalty for the commission of the said offense.
Death of the accused pending appeal of his
(Aguinaldo IV v. People, G.R. No. 226615
conviction extinguishes his criminal liability as
(Notice), October 10, 2018)
well as the civil liability based solely thereon. As
opined by Justice Regalado, in this regard,
"the death of the accused prior to final judgment
terminates his criminal liability and only the civil
liability directly arising from and based solely on
the offense committed, i.e., civil liability ex
delicto in senso strictiore." Corollarily, the claim
for civil liability survives notwithstanding
the death of accused, if the same may also be
predicated on a source of obligation other
than delict. (People v. XXX, G.R. No. 242950
(Notice), December 10, 2019)

Effect of Novation in the Criminal Action

"It is a hornbook doctrine in our criminal law that

the criminal liability for estafa is not affected by

589
Effect of Acquittal in the Criminal Action commit the acts or omission imputed to him.
Basis of Civil Independent (Horca v. People, G.R. No. 224316, November 10,
Acquittal Liability Ex Civil Action 2021, J. Hernando)
Delicto
1. Accused is Extinguished Not affected The acquittal of an accused who is also a
not the author since respondent in an administrative case does not
of the act or Independent conclude the administrative proceedings,
omission Civil Actions do nor carry with it relief from administrative
complained of not arise from liability. This is because only substantial
or is not based evidence is necessary in administrative cases.
2. Act or upon (Gupilan-Aguilar v. Office of the Ombudsman,
omission from the crime of G.R. No. 197307, February 26, 2014, Riano,
which the civil which the Criminal procedure, 2019 edition, p. 166)
liability may accused is
arise did not acquitted. Rule in Independent Civil Actions
exist Thus, the
outcome of the The petitioners’ reliance on Section 3 of Rule 111
3. Prosecution criminal action of the Rules of Court, in relation to Article 33 of
absolutely is irrelevant. the Civil Code, is misplaced. Section 3 provides
failed to prove that a civil action for damages in cases provided
the under Articles 32, 33, 34 and 2176 of the Civil
guilt of the Code, which may also constitute criminal
accused offenses, may proceed independently of the
Reasonable Subsists – criminal action. In instances where an
Doubt may be independent civil action is permitted, the result of
proven by the criminal action, whether of acquittal or
preponderanc conviction, is entirely irrelevant to the civil action.
e of evidence (Domingo v. Spouses Singson, G.R. Nos. 203287
(Riano, Criminal procedure, 2019 edition, p. 162- & 207936, April 5, 2017)
165)
The independent civil actions in Articles 32, 33,
The acquittal of the accused does not 34 and 2176, as well as claims from
automatically preclude a judgment against him on sources of obligation other than delict, are not
the civil aspect of the case. The extinction of the deemed instituted with the criminal action but
penal action does not carry with it the may be filed separately by the offended party
extinction of the civil liability where: even without reservation. The
(a) the acquittal is based on reasonable doubt separate civil action proceeds independently of t
as only preponderance of evidence is he criminal proceedings and requires only a
required; preponderance of evidence. (People v. Lipata y
(b) the court declares that the Ortiza, G.R. No. 200302, April 20, 2016)
liability of the accused is only civil; and
(c) the civil liability of the accused does not Payment of civil liability
arise from or is not based upon the
crime of which the accused is acquitted. Payment of civil liability does not extinguish
criminal liability. Hence, a judge cannot dismiss a
However, the civil action based on delict may be criminal case because the civil liabilty have been
deemed extinguished if there is a finding on the paid. (Cabico vs. Dimaculangan-Querijero, A.M.
final judgment in the criminal action that the act No. RTJ-02-1735. April 27, 2007; Riano, Criminal
or omission from which the civil liability may arise procedure, 2019 edition, p. 165)
did not exist or where the accused did not

590
Effect of judgment in civil case absolving
the defendant
A final judgment rendered in a civil action
absolving a 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 (Sec. 5, Rule 111)
Subsidiary liability of employer
The provisions of the Revised Penal Code on
subsidiary liability are deemed written into the
judgments in cases to which they apply.
Thus, in the dispositive portion of its decision, the
trial court need not expressly pronounce the
subsidiary liability of the employer.
Nonetheless, before the employers' subsidiary
liability is enforced, adequate evidence must exist
establishing that:
(1) They are indeed the employers of the
convicted employees;
(2) They are engaged in some kind of industry;
(3) The crime was committed by the employees
in the discharge of their duties; and
(4) The execution against the latter has not
been satisfied due to insolvency.
These conditions may be determined in the same
criminal action in which the employee's liability,
criminal and civil, has been pronounced, in a
hearing set for that precise purpose, with due
notice to the employer, as part of the proceedings
for the execution of the judgment. (Calang v.
People, 626 SCRA 679, 684-685, August 3, 2010;
Riano, Criminal procedure, 2019 edition, p. 166)
Rules on Consolidation of Criminal and Civil
Action
1. Where the civil action has been filed separately
and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon
application with the court trying the latter case. If
the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this
Rule governing consolidation of the civil and
criminal actions; (Sec. 1, Rule 111)
2. Before judgment on the merits is rendered in
the civil action, the same may, upon motion of
the offended party, be consolidated with the
criminal action in the court trying the criminal
action; (Sec. 2, Rule 111)
3. In case of consolidation, the evidence already
adduced in the civil action shall be 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. The
consolidated criminal and civil actions shall be
tried and decided jointly. (Sec. 2, Rule 111)
Prejudicial Question
Understood in law to be that which arises in a
case the resolution of which is a logical
antecedent of the issue involved in the criminal
case, and the cognizance of which pertains to
another tribunal. It is determinative of the
criminal case, but the jurisdiction to try and
resolve it is lodged in another tribunal. It is based
on a fact distinct and separate from the crime but
is so intimately connected with the crime that it
determines the guilt or innocence of the accused.
The reason behind the principle of a prejudicial
question is to avoid two conflicting decisions in
the civil case and in the criminal case. (San Miguel
Properties, Inc. v. Perez, 705 SCRA 38, 55, G.R.
No. 166836, September 4, 2013)
The concept of a 'prejudicial question' comes into
play:
(1) When a civil action and a criminal action are
both pending;
(2) There exists, in the former case, an issue
which must be preemptively resolved before
the latter case may proceed;
(3) The resolution of the civil action is
determinative of the guilt or innocence of the
accused in a criminal case. (Alsons
Development and Investment Corporation v.
The Heirs of Confesor, G.R. No. 215671,
September 19, 2018)
591
Elements of Prejudicial Question
(1) The previously instituted civil action involves
an issue similar or intimately related to the
issue raised in the subsequent criminal
action; and
• If the criminal information was filed
ahead of the complaint in the civil case,
no prejudicial question exists (Torres v.
Garchitorena, G.R. No. 153666,
December 27, 2002)
• Strictly speaking, a prejudicial question
under the said provision may not be
invoked in any of the following situations:
(a) both cases are criminal
(b) both are civil
(c) both cases are administrative (d) one
case is administrative and the other civil
(e) one case is administrative and the
other criminal. (Riano, Criminal
procedure, 2019 edition, p. 168).
(2) The resolution of such issue determines
whether or not the criminal action may
proceed. (Sec. 7, Rule 111)
• It is not enough that both cases involve
the same facts or even the same or
similar issues to make the civil case
prejudicial to the criminal case. The mere
claim that the issues in both cases are
intimately related will not necessarily
make theissue in the civil case prejudicial
to the resolution of the issue in the
criminal case. It is critical to show that
the issue in the civil case is
'determinative' of the issue in the criminal
case. (Riano, Criminal procedure, 2019
edition, p. 169)
• Neither is there a prejudicial question if
the civil and the criminal action can,
according to law, proceed independently
of each other, that is, the criminal action
can proceed without waiting for the
resolution of the issues in the civil case.
(Riano, Criminal procedure, 2019 edition,
p. 169-170)
Thus, for a civil action to be considered prejudicial
to a criminal case, the following requisites must
be present:
(1) The civil case involves facts intimately
related to those upon which the criminal
prosecution would be based;
(2) In the resolution of the issue or issues raised
in the civil action, the guilt or innocence of
the accused would necessarily be
determined; and
(3) Jurisdiction to try said question must be
lodged in another tribunal (Magestrado v.
People, 527 SCRA 125, 140; See also
Domingo v. Singson, G.R. No. 203287, April
5, 2017)
SUSPENSION BY REASON OF PREJUDICIAL
QUESTION
Suspension by Reason of Prejudicial
Question
General If the civil action was commenced
Rule before the institution of the
criminal action, the civil action
shall be suspended in whatever
stage it may be found before
judgment on the merits, once the
criminal action is commenced.
"The suspension shall last until
final judgment is rendered in the
criminal action." (Sec. 2, Rule 111)
Exception When there is a prejudicial
question, the criminal case may be
suspended pending the final
determination of the issues in the
civil case. (Sec. 6, Rule 111)
A petition for suspension of the criminal action
based upon the pendency of a prejudicial
question in a civil action may be filed in the office
of the prosecutor or the court conducting the
preliminary investigation. When the criminal
action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
(Sec. 6, Rule 111)
Under the clear terms of Sec. 6, the filing of a
petition before the suspension of the criminal
action is required. The rule, therefore, as it
appears, precludes a motu proprio
suspension by the court of the criminal
592
action. (Riano, Criminal procedure, 2019 edition,
p. 170)
Since a petition to suspend can be filed only in
the criminal action, the determination of the
pendency of a prejudicial question should be
made at the first instance in the criminal
action, and not before the Supreme Court
in an appeal from the civil action. (Integrated
Bar of the Philippines v. Atienza, 613 SCRA 518,
523-524, February 24, 2010)
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. (Sec 1, Rule 112)
A preliminary investigation is merely inquisitorial.
It is often the only means of discovering the
persons who may be reasonably charged with
crime, to enable the prosecutor to prepare his
Complaint or Information. It is not a trial of the
case on the merits and has no objective except
that of determining whether a crime has been
committed and whether there is probable cause
to believe that the respondent is guilty thereof.
(Yagong v. Magno, A.C. No. 10333, November 6,
2017)
A preliminary investigation is not the occasion
for the full and exhaustive display of the parties'
evidence; it is for the presentation of such
evidence only as may engender a well-grounded
belief that an offense has been committed and
that the accused is probably guilty thereof. We
are in accord with the state prosecutor's findings
in the case at bar that there exists prima
facie evidence of petitioner's involvement in the
commission of the crime, it being sufficiently
supported by the evidence presented and facts
obtaining therein. (Estrada v. Office of the
Ombudsman, G.R. Nos. 212140-41, January 21,
2015)
In the conduct of preliminary investigation, the
prosecutor does not decide whether there is
evidence beyond reasonable doubt of the guilt of
respondent. A prosecutor merely determines the
existence of probable cause, and to file the
corresponding information if he finds it to be so
(De Chavez v. Ombudsman, G.R. No. 168830-31,
February 6, 2007).
Probable cause need not be based on clear and
convincing evidence of guilt, as the investigating
officer acts upon reasonable belief. Probable
cause impliesprobability of guilt and requires mo
re than bare suspicion but less than evidence wh
ich would justify a conviction. (Non v. Office of
the Ombudsman, G.R. No. 239168, September
15, 2020)
Probable cause, for the purpose of filing a
criminal information, does not require absolute
certainty or guilt beyond reasonable doubt. A
well-founded belief that a crime was committed
and that the individual charged is probably
guilty of committing the crime suffices. The
merits of the parties' respective accusations and
defenses and admissibility of testimonies and
defenses are better ventilated in the trial proper
before the courts than during the preliminary
investigation level. (Debuque v. Nilson, G.R. No.
191718, May 10, 2021, J. Hernando)
Purpose of preliminary investigation
The purpose of a preliminary investigation or a
previous inquiry of some kind, before an accused
person is placed on trial, is to secure the innocent
against hasty, malicious and oppressive
prosecution, and to protect him from an open and
public accusation of a crime, from the trouble,
expenses and anxiety of public trial; The right to
have a preliminary investigation conducted
before being bound over to trial for a criminal
offense and hence formally at risk of incarceration
or some other penalty, is not a mere formal or
technical right—it is a substantive right—and to
deny the accused’s claim to a preliminary
investigation would be to deprive him of the full
measure of his right to due process (Duterte vs.
Sandiganbayan, G.R. No. 130191. April 27, 1998)
593
The purposes of a preliminary investigation are to
determine whether
• A crime has been committed; and
• There is probable cause to believe that the
accused is guilty thereof (Artillero v.
Casimiro, G.R. No. 190569, April 25, 2012)
A preliminary investigation is "not a casual
affair." It is conducted to protect the innocent
from the embarrassment, expense and anxiety of
a public trial. While the right to have a preliminary
investigation before trial is statutory rather than
constitutional, it is a substantive right and a
component of due process in the administration
of criminal justice. In the context of a preliminary
investigation, the right to due process of law
entails the opportunity to be heard. It serves to
accord an opportunity for the presentation of the
respondent's side with regard to the accusation.
Afterwards, the investigating officer shall decide
whether the allegations and defenses lead to a
reasonable belief that a crime has been
committed, and that it was the respondent who
committed it. Otherwise, the investigating officer
is bound to dismiss the complaint. (Ocampo v.
Abando, G.R. Nos. 176830, 185587, 185636 &
190005, February 11, 2014)
When required
General Preliminary investigation is
Rule 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 - maintain bf without regard
to the fine (Rule 112, Sec. 1[2])
Exception when a person is lawfully arrested
without a warrant. (Sec. 6, Rule
112 as amended by A.M. No. 05-
8-26-SC) — Inquest proceedings
Exceptions (Instances when preliminary
to the investigation may be asked by the
exception accused)
(1) Before the complaint or
information is filed, the
person arrested may ask for
a PI, but he must sign a
waiver of the provisions of
Article 125 of the RPC, as
amended, in the presence of
his counsel.
(2) After the filing of the
complaint or information in
court without a preliminary
investigation, the accused
may, within five days from
the time he learns of its
filing, ask for a preliminary
investigation.
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 664)
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, 2019
Edition, p. 207).
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 Javellana, A.M. No. MTJ-
07-1666, September 5, 2012)
Instances in the Revised Rules on Criminal
Procedure where probable cause is needed
to be established:
(1) In Sections 1 and 3 of Rule 112: By the
INVESTIGATING OFFICER, to determine
whether there is sufficient ground to
594
 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 four years, two
months and one day without regard to the
fine;
(2) In Sections 6 and 9 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) In Section 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
(4) In Section 4 of Rule 126: By the JUDGE, to
determine whether a search warrant shall be
issued, and only upon probable cause in
connection with one specific offense to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the things to be
seized which may be anywhere in the
Philippines.
In all these instances, the evidence necessary to
establish probable cause is based only on the
likelihood, or probability, of guilt (Estrada vs,
Ombudsman, G.R. Nos. 212140-41, January 21,
2015).
Note: Probable cause can be established with
hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence
is admissible in determining probable cause in a
preliminary investigation because such
investigation is merely preliminary, and does not
finally adjudicate rights and obligations of parties
(PCGG vs. Navarro-Gutierrez, G.R. No. 194159,
Oct. 21, 2015).
Nature of Right to Preliminary
Investigation
(1) Right to a preliminary investigation; not a
constitutional right
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).
The accused's right to preliminary investigation is
not a constitutionally-guaranteed right but one of
mere statutory privilege (Radaza vs.
Sandiganbayan, G.R. No. 201380, August 4,
2021, J. Hernando)
It is therefore clear that because a
preliminary investigation is not a proper trial, the
rights of parties therein depend on the rights
granted to them by law and these cannot be
based on whatever rights they believe they are
entitled to or those that may be derived from the
phrase "due process of law." (Artillero v.
Casimiro, G.R. No. 190569, April 25, 2012)
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).
(2) Right to a preliminary investigation; waivable
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).
The right to a preliminary investigation may be
waived for failure to invoke the right prior to or at
the time of the plea (Estrada v. Office of the
Ombudsman, G.R. Nos. 212140-41, January 21,
2015)
595

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).
(3) Right to a preliminary investigation; merely
inquisitorial
Merely inquisitorial; Not a trial of the case on the
merits (De Lima vs. Reyes, G.R. No. 209330,
January 11, 2016).
Preliminary investigation is merely inquisitorial,
and is often the only means of discovering the
persons who may be reasonably charged with a
crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the
case on the merits and has no purpose except
that of determining whether a crime has been
committed and whether there is probable cause
to believe that the accused is guilty
thereof. While the fiscal makes that
determination, he cannot be said to be acting as
a quasi-court, for it isthe courts, ultimately, that
pass judgment on the accused, not the
fiscal. (Patdu, Jr. v. Carpio-Morales, G.R. No.
230171, September 27, 2021, J. Hernando)
(4) Right to a preliminary investigation; does not
require a full and exhaustive presentation of
the parties' evidence
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)
(5) Right to a preliminary investigation; 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).
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. (De
Lima v. Reyes, G.R. No. 209330, January 11,
2016)
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, 2019 Edition, p. 193)
(6) Right to a preliminary investigation; 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).
(7) Does not place the person against whom it is
taken in jeopardy
It is settled that the dismissal of a case during
its preliminary investigation does not
constitute double jeopardy since a preliminary
investigation is not part of the trial and is not
the occasion for the full and exhaustive display
of the parties' evidence but only such as may
engender a well-grounded belief that an
offense has been committed and accused is
probably guilty thereof. For this reason, it
cannot be considered equivalent to a judicial
pronouncement of acquittal. (Jamaca vs.
People of the Philippines, G.R. No. 183681,
July 27, 2015).
(8) 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).
596
Court Interference in the Conduct of
Preliminary Investigation The term does not mean "actual and positive
cause" nor does it import absolute certainty. It is
General Rule Exception merely based on opinion and reasonable belief.
The courts cannot When the acts of the Probable cause does not require an inquiry into
interfere in the officer are without or whether there is sufficient evidence to procure a
conduct of preliminary in excess of authority conviction. It is enough that it is believed that the
investigations, leaving resulting from a grave act or omission complained of constitutes the
the investigatory abuse of discretion offense charged (Fenequito vs. Vergara, G.R. No.
officers sufficient 172829, July 18, 2012).
discretion to Save only when he
determine probable acts with grave abuse A finding of probable cause needs only to rest on
cause. discretion amounting evidence showing that, more likely than not, a cr
to lack or excess of ime has been committed by the suspects. It nee
Rationale: Rests on jurisdiction, say: d not be based onclear and convincing evidence
the principle of (a) When he grossly of guilt, not on evidence establishing guilt beyon
separation of powers, misapprehends d reasonable doubt, and definitely not on
the determination of the facts; evidence establishing absolute certainty of
probable cause being (b) When he acts in a guilt. (Department of Finance-Revenue Integrity
an executive function. manner so patent Protection Service v. Enerio, G.R. No. 238630,
and gross as to May 12, 2021)
amount to an
evasion of positive Who may conduct the Determination of the
duty or a virtual Existence of Probable Cause
refusal to perform
the duty enjoined The following may conduct preliminary
by law; or investigation:
(c) When he acts
outside the (1) Provincial or city fiscal and their assistants;
contemplation of (2) National and regional state prosecutors;
law. (3) Such other officers as may be authorized by
(Sps. Balangauan vs. CA, G.R. No. 174350, law such as:
August 13, 2008; Riano, Criminal Procedure, (a) Comelec;
2019 Edition, p. 200). (b) Ombudsman;
(c) PCGG; and
Probable cause (d) City and provincial prosecutors (Rule
112, Sec. 2)
Probable cause has been defined as the existence
of such facts and circumstances as would excite Under Sec. 45 of the Revised Securities Act, the
the belief in a reasonable mind, acting on the Securities and Exchange Commission (SEC) has
facts within the knowledge of the prosecutor, that the authority to make such investigations as it
the person charged was guilty of the crime for deems necessary to determine whether any
which he was prosecuted. It is merely based on person has violated or is about to violate any
opinion and reasonable belief. In determining provision of the law. After a finding that a person
probable cause, the average person weighs facts has violated the Securities Regulation Code (R.A.
and circumstances without resorting to the No. 8799), the SEC may refer the case to the DOJ
calibrations of the rules of evidence of which he for preliminary investigation and prosecution.
or she has no technical knowledge (Estrada v.
Office of the Ombudsman, G.R. Nos. 212761-62, The fact that the DOJ is the primary prosecution
213473-74 & 213538-39, July 31, 2018) arm of the Government does not make it a quasi-

597
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
proceeding (De Lima vs. Reyes, G.R. No. 209330,
January 11, 2016).
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 offenses (People vs. Basilla, G.R.
No. 83938-40, November 6, 1989).
When Evidence on hand Absolutely Fails to
Support a Finding of Probable Cause
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).
1. EXECUTIVE VS. JUDICIAL
DETERMINATION OF PROBABLE
CAUSE
There are two kinds of determination of 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. (Riano, Criminal Procedure, 2019 Edition,
p. 199)
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).
Executive One made during preliminary
determination investigation. It is a function
of probable that properly pertains to the
cause 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.
Otherwise stated, such official
has the quasi-judicial
authority to determine
whether or not a criminal case
must be filed in court.
Whether or not that function
has been correctly discharged
by the public prosecutor, i.e.,
whether or not he has made a
correct ascertainment of the
existence of probable cause in
a case, is a matter that the
trial court itself does not and
may not be compelled to pass
upon
598
 Judicial one made by the judge to is authorized to take over at any stage, from any
determination ascertain whether a warrant investigating body, the investigation of such
of probable of arrest should be issued cases; a power not given to investigative bodies
cause against the accused. The (DOJ vs. Liwag, G.R. No. 149311, February 11,
judge must satisfy himself 2005; Alejandro vs. Office of the Ombudsman
that based on the evidence Fact-Finding and Intelligence Bureau, G.R. No.
submitted, there is necessity 173121, April 3, 2013; Bueno vs. Office of the
for placing the accused under Ombudsman, G.R. No. 191712, September 17,
custody in order not to 2014).
frustrate the ends of justice.
If the judge finds no probable Procedure in conducting Preliminary
cause, the judge cannot be Investigation:
forced to issue the arrest
warrant. (1) Filing of the complaint accompanied by the
(M. De Leon, Remedial Law Reviewer-Primer, affidavits and supporting documents
2021 Edition, pp. 670-671) (2) Within 10 days from filing – The
investigating officer issues a subpoena or the
Distinguish preliminary investigation from investigating officer dismisses the complaint
preliminary examination (3) Within 10 days from receipt - Respondent
shall submit a counter-affidavit and other
Preliminary Preliminary supporting documents
Investigation Examination (4) Within 10 days from receipt of counter-
Quantum Probable Cause Probable affidavit or from the expiration of the period
of Cause of their submission
Evidence (5) Clarificatory Hearing (optional)
Nature Executive Judicial (6) Resolution of the investigating prosecutor
function function (7) Review of the investigating prosecutor’s
Purpose For the filing an For the resolution by the provincial or city prosecutor
information. issuance or or chief state prosecutor, or to the
non-issuance Ombudsman or his deputy in cases of
of the warrant offenses cognizable by the Sandiganbayan in
of arrest. the exercise of its original jurisdiction
Definition A process to A process to (8) Review by the Secretary of Justice
determine determine the (9) Issuance of warrant of arrest
whether a crime probability also
is committed of the accused (1) Filing of the complaint;
and the accused having
or respondent is committed a Documents Accompanying the Complaint
probably guilty crime and (a) The affidavits of the complainant;
thereof. This is therefore a (b) The affidavits of his witnesses; and
conducted by warrant of (c) Other supporting documents that would
the prosecutor. arrest is establish probable cause (Sec. 3(a),
issued. This is Rule 112).
conducted by
the judge. The affidavits of the complainant shall be
(Riano, Criminal Procedure, 2019 Edition, p. 199) subscribed and sworn to before:
(a) Any prosecutor;
Important: A.M. No. 05-8-26-SC (b) Any government official authorized to
The Ombudsman is given primary jurisdiction administer oaths; or
over cases cognizable by the Sandiganbayan. He

599
 (c) In the absence or unavailability of the
abovementioned, a notary public.
The officer or notary public before whom the
affidavits were subscribed and sworn to
must certify that he personally examined the
affiants and that he is satisfied that they
voluntarily executed and understood their
affidavits (Sec. 3(a), Rule 112).
(2) Within ten (10) days after the filing of the
complaint, the investigating officer shall
either:
(a) dismiss it if he finds no ground to
continue with the investigation; or
(b) issue a subpoena to the respondent
attaching to it a copy of the complaint
and its supporting affidavits and
documents; (Sec. 3(b), Rule 112).
(3) Within ten (10) days from receipt of the
subpoena with the complaint and supporting
affidavits and documents, the respondent
shall submit his counter-affidavit and that of
his witnesses and other supporting
documents relied upon for his defense; (Sec.
3(c), Rule 112).
(4) If the respondent cannot be subpoenaed, or
if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the
investigating officer shall resolve the
complaint based on the evidence presented
by the complainant; (Sec. 3(d), Rule 112).
(5) Clarificatory Hearing. (Sec. 3(e), Rule 112).
Guidelines as to Clarificatory Hearing:
(a) A hearing may be set only when there
are facts and issues to be clarified from
a party or a witness.
(b) The parties can be present at the
hearing BUT without the right to
examine or cross-examine.
(c) The parties may submit to the
investigating officer questions which
may be asked to the party or witness
concerned.
(d) 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.
(e) The hearing shall be terminated within
5 days.
(f) Resolution: within 10 days after
investigation by investigating officer
(Sec. 3(e), Rule 112)
(6) Resolution of the Investigating Prosecutor
If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare
the resolution and information. Otherwise,
he shall recommend the dismissal of the
complaint.
The information shall contain a certification by
the investigating officer under oath in which
he shall certify the following:
(a) That 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; and
(d) That he was given an opportunity to
submit controverting evidence (Sec. 4,
Rule 112).
(7) Review of the investigating prosecutor’s
resolution by the provincial or city prosecutor
or chief state prosecutor, or to the
Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction.
Within five (5) days from the investigating
prosecutor’s resolution, he shall forward the
record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses
600
 cognizable by the Sandiganbayan in the
exercise of its original jurisdiction.
They shall act on the resolution within ten (10)
days from their receipt thereof and shall
immediately inform the parties of such action.
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.
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, by himself, file the information
against the respondent, or direct another
assistant prosecutor or state prosecutor to do
so without conducting another preliminary
investigation. (Sec. 4, Rule 112).
(8) Review by the Secretary of Justice
If upon petition by a proper party under such
rules as the Department of Justice may
prescribe or motu proprio, the Secretary of
Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state
prosecutor, 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.
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, 2019 Edition, p. 224).
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 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).
General An appeal shall not bar the filing
Rule of the corresponding information.
Exception When otherwise directed by the
Secretary of Justice.
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 dismissal of the case by the
investigator will not bar the filing of another
complaint 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:
(a) By filing Petition for Certiorari under
Rule 65 of the ROC.
601
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).
Note: A petition for certiorari, pertaining to the
regularity of a preliminary investigation, becomes
moot after an information is filed and a trial court
issues an arrest warrant upon finding probable
cause against the accused. (Province of Bataan v.
Casimiro, G.R. Nos. 197510-11 & 201347, [April
18, 2022, J. Hernando)
(b) 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 of Court.
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;
that the prescription of the offense is not due to
lapse within six (6) months from notice of the
questioned resolution/order/decision; and
provided further that, the appeal or petition for
review is filed within thirty (30) days from such
notice.
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.
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).
Proper Remedy of the Aggrieved Party in
Order to Assail the Resolution of the Office
of the President
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 (Sec. 1, Rule 43).
Requisites:
602
(a) Offense involved is punishable by reclusion
perpetua to death
(b) New and material issues are raised which
were not previously presented before the
Department of Justice and were not ruled
upon
(c) Prescription of the offense is not due to lapse
within 6 months from notice of questioned
resolution
(d) Appeal or petition for review is filed within
30 days from notice (Memorandum Circular
No. 58, June 30, 1993)
If the appeal does not clearly fall within the
jurisdiction of the Office of the President, the
appeal shall be dismissed outright.
If the lack of jurisdiction is not readily apparent,
the appellant/petitioner shall be ordered to prove
the necessary jurisdictional facts.
In the event of an adverse decision against the
appellant, a verified petition for review may be
taken to the Court of Appeals within fifteen (15)
days from notice of the final order of the Office of
the President and following the procedure set
forth under Rule 43 of the Rules of Court.
Appeal from the Resolution of the
Ombudsman
Where the findings of the Ombudsman on the
existence of probable cause in criminal cases is
tainted with grave abuse of discretion amounting
to lack or excess of jurisdiction, the aggrieved
party may file a petition for certiorari with the
Supreme Court under Rule 65.
Administrative and disciplinary cases – with
the Court of Appeals through Petition for Review
under Rule 43 of Rules of Court.
Criminal cases – with the Supreme Court
through extraordinary remedy of Certiorari under
Rule 65 of Rules of Court (Fabian vs. Desierto
G.R. No. 129742, September 16, 1998).
9. Issuance of warrant of arrest (Sec. 6, Rule
112, As Amended by A.M. No. 05-8-26-SC)
By the Regional Trial Court / By the
Municipal Trial Court
The procedure for the issuance of a warrant of
arrest by the judge shall be the same as that of
the RTC.
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 (Sec. 8(b), Rule
112).
Records of Preliminary Investigation
General The Record of Preliminary
Rule Investigation is NOT part of the
record of the case. (Sec. 8[b],
Rule 112).
Exception BUT it may be produced in court:
(1) upon its own initiative; or
603
 (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.
(Sec. 7[b], Rule 112 as
amended by A.M. No. 05-
8-26-SC)
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).
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.
Rules in Lawful Warrantless Arrests where
Crime Involved Requires Preliminary
Investigation
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.
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. (Sec. 7, Rule 112, as amended
by A.M. No. 05-8-26-SC; Integrated Bar of the
Philippines Pangasinan Legal Aid v. Department
of Justice, G.R. No. 232413, July 25, 2017)
Options of Accused Lawfully Arrested
Without Warrant (Sec. 6, Rule 112, As
Amended by A.M. No. 05-8-26-SC)
Before The person arrested may ask
complaint or for a preliminary investigation
information in accordance with this Rule,
is filed 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.
Notwithstanding the waiver, he
may apply for bail and the
investigation must be
terminated within 15 days from
its inception.
After The accused may, within 5
complaint or days from the time he learns of
information its filing, ask for a preliminary
is filed investigation with the same
without right to adduce evidence in his
Preliminary defense as provided in this
Investigation rule. (Villa Gomez v. People,
G.R. No. 216824, November
10, 2020)
Section 7 of Rule 112 of 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).
604

Cases Not Requiring A Preliminary
Investigation nor Covered by the Rule on
Summary Procedure
Where a preliminary investigation is not required
because the penalty prescribed by law for the
offense involves an imprisonment of less than
four (4) years, two (2) months and one (1) day,
there are two ways of initiating a criminal action:
(a) By filing the complaint directly with the
prosecutor; or
(b) By filing the complaint or information with
the Municipal Trial Court
A motion for reinvestigation, when a preliminary
investigation is not required, is a prohibited
motion under the Revised Guidelines for
Continuous Trial of Criminal Cases. (Rule 112,
Sec. 9, As Amended By A.M. No. 05-8-26-SC)
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.
Questioning 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).
Note: Failure to invoke the right before entering
a plea will amount to a waiver (Riano, Criminal
Procedure, 2019 Edition, p. 210).
The absence of preliminary investigation does not
affect the court’s jurisdiction over the case. Nor
do they impair the validity of the information or
otherwise render it defective; but, if there were
no preliminary investigations and the defendants,
before entering their plea, invite the attention of
the court to their absence, the court, instead of
dismissing the information, should conduct it or
remand the case to the inferior court so that the
preliminary investigation may be conducted.
(Enriquez vs. Sarmiento, Jr., A.M. No. RTJ-06-
2011. August 7, 2006)
If there is no preliminary investigation and the
accused before entering his plea calls the
attention of the court to his deprivation of the
required preliminary investigation, the court
should not dismiss the information. It should
remand the case to the prosecutor so that the
investigation may be conducted (Larranaga v.
Court of Appeals, 287 SCRA 581).
Motion to quash is NOT the proper remedy
if there was no preliminary investigation
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).
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).
Inquest
Inquest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec.1, Rule 113).
When An inquest proceeding is
Conducted conducted when a person is
lawfully arrested without a
warrant involving even also an
offense which requires a
preliminary investigation.
(Sec. 7, Rule 112)
Who The inquest is conducted by a
Conducts public prosecutor who is
assigned inquest duties as an
Inquest Officer and is to
605
 discharge his duties, unless
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 The inquest proceedings shall
deemed to be deemed commenced from
have the time the Inquest officer
commenced 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, 2019 Edition, pp.
211-212).
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).
E. ARREST (RULE 113)
Purpose
In order that the accused may be bound to
answer for the commission of the offense. (Riano,
Criminal Procedure, 2019 Edition, p. 238).
Manner of Arrest
(a) by actual restraint of a person to be
arrested;
(b) by his submission to the custody of the
person making the arrest (Sec. 2[1], Rule
113)
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not
be subject to a greater restraint than is necessary
for his detention. (Sec. 2[2], Rule 113)
Arrest is the taking of a person into custody in
order that he or she may be bound to answer
for the commission of an offense. It is effected
by an actual restraint of the person by that
person’s voluntary submission to the custody of
the one making the arrest. Neither the
application of actual force, manual touching of
the body, or physical restraint, nor a formal
declaration of arrest, is required. It is enough
that there be an intention on the part of one
of the parties to arrest the other, and that there
be an intent on the part of the other to submit,
under the belief and impression that submission
is necessary. (Duropan v. People, G.R. No.
230825, June 10, 2020)

Arrest is the taking of a person into custody in 1. ARREST WITHOUT WARRANT, WHEN
order that he may be bound to answer for the LAWFUL
commission of an offense. (Sec. 1, Rule 113)
General rule Exception
The term implies control over the person under No arrest can be warrantless arrest
custody and as a consequence, a restraint on his made without a (a) In flagrante delicto
liberty to the extent that he is not free to leave valid warrant (b) Hot pursuit
on his own volition. issued by a (c) Escapee from a penal
competent judicial establishment
Actual physical restraint is not required, a person authority. (d) Other lawful
need not be actually restrained by the person warrantless arrest
making the arrest. Anything that restrains the (i) Arrest by a
liberty of a person to the extent that he is not free bondsman
to leave on his own volition already constitutes (ii) Out on bail and
arrest. attempts to flee

606
Lawful Warrantless Arrest
In flagrante delicto
Definition 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 (Sec. 5(a), Rule
113)
Requisites (a) the person arrested must
execute an overt act
indicating that he or she has
just committed, is actually
committing, or is attempting
to commit a crime; and
(b) the overt act was
done in the presence or
within the view of the
arresting officer. (Uy y Sayan
v. People, G.R. No. 217097,
February 23, 2022, J.
Hernando)
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.
It is settled that “reliable
information” alone, absent any
overt acct indicative of a
felonous enterprise in the
presence and within the view
of the arresting officers, are
not sufficient to constitute
probable cause that would
justify an in flagrante delicto
arrest. (People v. Delos Reyes,
G.R. No. 174774, August 31,
2011)
Hot pursuit Escapee from a penal
establishment
When an offense has just When the person to be
been committed and he has arrested is a prisoner who
probable cause to believe has escaped:
based on personal • from a penal
knowledge of facts and establishment or place
circumstances that the where he is serving
person to be arrested has final judgment or
committed it (Sec. 5(b), Rule • is temporarily
113) confined while his
case is pending, or
has escaped while
being transferred
from one confinement
to another. (Sec. 5(c),
Rule 113)
(a) a crime has just been
committed; and
(b) the arresting officer has
personal knowledge of
facts indicating that the
person to be arrested
committed the crime.
(People v. Molina y Dela
Peña, G.R. No. 231841
(Notice), June 15, 2022)
There is also an element Escapee may be
of immediacy, since the immediately pursued or
arresting officer's personal re-arrested without a
evaluation of the warrant at any time and in
circumstances and their any place within the
conclusion of probable cause Philippines (Sec. 13, Rule
should be made immediately 113)
after the commission of the
offense. Since the
circumstances call for urgent
action, there is not enough
time to obtain a warrant.
The clincher in the element
of "personal knowledge of
facts or circumstances" is
the required element of
immediacy within which
these facts or circumstances
should be gathered. (People
607
 v. Molina y Dela Peña, G.R.
No. 231841 (Notice), June
15, 2022)
“Abscond” rule
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts
to depart from the Philippines without permission
of the court where the case is pending (Sec. 23,
Rule 114).
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).
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.
Additional instances when an officer may
arrest without a warrant
(1) By the bondsman for the purpose of
surrendering the accused (Sec. 23, Rule
114);
(2) Where a person who has been lawfully
arrested escapes or is rescued (Sec. 13, Rule
113);
(3) Where the accused out on bail attempts to
leave the country without permission of the
court (Sec. 23, Rule 114); and
(4) Buy-bust Operation - An arrest made after
an entrapment operation does not require a
warrant inasmuch as it is considered a valid
"warrantless arrest." (People v. Collaclo, 698
SCRA 628, 643, June 17, 2013)
2. REQUISITES OF A VALID WARRANT
OF ARREST
The requirements of a valid search warrant are
laid down in Article III, Section 2 of the 1987
Constitution and in Rule 126, Section 4 of the
Rules Court, viz.:
(1) probable cause is present;
(2) such probable cause must be determined
personally by the judge;
(3) the judge must examine, in writing and
under oath or affirmation, the complainant
and the witnesses he or she may produce;
(4) the applicant and the witnesses testify on
the facts personally known to them; and
(5) the warrant specifically describes the place
to be searched and the things to be seized.
The absence of any of these requisites will cause
the downright nullification of thesearch warrant.
(Diaz v. People, G.R. No. 213875, [July 15, 2020,
J. Hernando)
Section 2, Article III of the Bill of Rights: “xxx no
search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.”
It is constitutionally mandated that no
search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmationof the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized. (Estores y
Pecardal v. People, G.R. No. 192332, January 11,
2021, J. Hernando)
The test for issuing a warrant of arrest is less
stringent than that used for establishing the guilt
of the accused (People v. Tan, G.R. No. 182310,
December 9, 2009).
What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the
existence of probable cause for the issuance of a
608
warrant of arrest, the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted
by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's
report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
(Zafe III y Sanchez v. People, G.R. No. 226993,
May 3, 2021).
Note: Warrants of arrest issued to John Doe are
in the nature of a general warrant, one of a class
of writs long proscribed as unconstitutional and
once unthematized 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).
Persons Immune from Arrest
The following persons are immune from arrest:
(1) Members of Congress, in all offenses
punishable by not more than six (6) years
imprisonment, while Congress is in session;
(2) Sovereigns and other chiefs of state,
ambassadors, ministers plenipotentiary,
ministers resident, 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
Methods of Arrest
Arrest by an Officer by Arrest by an Officer
Virtue of a Warrant Without Warrant
(Sec. 7, Rule 113) (Sec. 8, Rule 113)
Execute the warrant within 10
days from its receipt. In case of
his failure to execute the
warrant, the head of the office
a foreign country and their duly registered
domestics, subject to the principle of
reciprocity (Sec. 7, R.A. No. 75).
Effects of an invalid or illegal arrest
An invalid or illegal arrest leads to several
consequences among which are:
(1) The failure to acquire jurisdiction over the
person of the accused;
(2) Criminal liability of law enforcers for illegal
arrest; and
(3) Any search incident to the arrest becomes
invalid thus rendering the evidence acquired
as constitutionally inadmissible (Riano,
Criminal Procedure, 2019 Edition, p. 264,
citing Veridiano vs. People, G.R. No. 200370,
June 7, 2017).
Execution of Warrants
When a warrant of arrest is issued by a judge, the
warrant is delivered to the proper law
enforcement agency for execution.
(1) The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within ten (10) days
from its receipt.
(2) Within ten (10) days after the expiration of
the period, the officer to whom it was
assigned for execution shall make a report to
the judge who issued the warrant.
(3) In case of his failure to execute the warrant,
he shall state the reasons for its non-
execution (Sec. 4, Rule 113, Rules of Court).
Time of Making Arrest
An arrest may be made on any day and at any
time of the day or night. (Sec. 6, Rule 113)
Arrest by Private Person
(Sec. 9, Rule 113)
N/A N/A
609
to whom the warrant was issued
shall state the reasons therefor.
(Sec. 4, Rule 113)
General Rule: The arresting
officer shall inform the person to
be arrested of:
(a) The cause of the arrest;
and,
(b)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
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. (Sec. 7, Rule 113)
Objects subject to
confiscation from the person
arrested
The following objects shall be
confiscated:
(a) Objects subject of the
offense or used or intended
to be used in the
commission of the crime;
(b) Objects which are fruits of
the crime;
(c) Those which might be used
by the arrested person to
commit violence or to
escape; and
(d) Dangerous weapons and
those which may be used
as evidence in the case.
(People v. Nunez, 591
General Rule: The officer shall General Rule: The private
inform the person to be arrested person shall inform the person
of his authority and the cause of to be arrested of the:
the arrest. (a) Intention to arrest him; and
(b) The cause of the arrest.
Exceptions: Exceptions:
(a) The person arrested is (a) The person arrested is
engaged in the commission engaged in the commission
of an offense; of an offense;
(b) He is pursued immediately (b) He is pursued immediately
after its commission; after its commission;
(c) He has escaped, flees, or (c) He has escaped, flees, or
forcibly resists before the forcibly resists before the
officer has opportunity to so officer has opportunity to so
inform him; or, inform him; or,
(d) When the giving of such (d) When the giving of such
information will imperil the information will imperil the
arrest. arrest (Sec. 5., Rule 113)
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.
610
SCRA 394, 404-405, June The Court, however, cautions
30, 2009) 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).

611
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):
➢ 12 hours - Light penalties
➢ 18 hours - Correctional penalties
➢ 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. (Sec. 6, Rule 113)
Rights of a person arrested (R.A. 7438)
These rights are:
(1) The right to be assisted by counsel all at
times;
(2) The right to remain silent;
(3) The right to be informed of the above rights;
and
(4) The right to be visited by the immediate
members of his family, by his counsel, or by
any non-governmental organization,
national or international.
Rights of a arresting officer
(1) To orally summon as many persons as he
deems necessary to assist him in effecting
the arrest (Sec. 10, Rule 113)
(2) To break into building or enclosure when the
following concur:
(a) Person to be arrested is or is reasonably
believed to be in said building;
(b) He has announced his authority and
purpose of entering therein; and
(c) He has requested and been denied
admittance. (Sec. 11, Rule 113)
(3) To break out from the building/enclosure
when necessary to liberate himself (Sec. 12,
Rule 113);
(4) To search the person arrested for dangerous
weapons or anything which may have been
used or constitute proof in the commission
of an offense without a warrant (Sec. 13,
Rule 126)
Unnecessary violence not allowed
An underlying rule governing arrests is the
prohibition against the use of violence or
unnecessary force in making an arrest.
The rule emphasizes that no person arrested shall
be subject to a greater restraint than is necessary
for his detention. (Sec. 3, Rule 113)
A person not formally arrested but merly
“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).
3. DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF WARRANT
OF ARREST
A warrant of arrest should be issued if the judge
after personal evaluation of the facts and
circumstances is convinced that probable cause
exists that an offense was committed.
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 was committed by the person sought to
be arrested. This must be distinguished from the
prosecutor's finding of probable cause which is
for the filing of the proper criminal information.
Probable cause for warrant of arrest is
determined to address the necessity of placing
the accused under custody in order not to
frustrate the ends of justice. (Hao v. People, G.R.
No. 183345, September 17, 2014)
Note: It is enough that the judge personally
evaluates the prosecutor’s report and supporting
documents showing the existence of probable
cause for the indictment and, on the basis
thereof, issue a warrant of arrest; or if, on the
basis of his evaluation, he finds no probable
612
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. Ocampo, G.R. No.
176830, February 11, 2014).
F. BAIL (RULE 114)
1. NATURE
Bail is the security given for the release of a
person in custody of the law, furnished by him or
a bondsman, to guarantee his appearance before
any court as required under the conditions
hereinafter specified. (Sec. 1, Rule 114)
Bail bonds are wholly distinct in nature and object
from the bond under consideration. The word
"bail" as used in that portion of section 5
of the Act of Congress of July 1, 1902, which
provides that "excessive bail shall not required" is
inadequately translated by the word " fianza", as
bail implies a particular kind of bond — that is to
say, a bond given to secure the personal liberty
of one held in restraint upon a criminal or quasi
criminal charge. (The Government of the
Philippine Islands v. Punzalan, G.R. No. L-2938,
February 26, 1907)
A court has the power to prohibit a person
admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature
and function of a bail bond. The condition
imposed upon petitioner to make himself
available at all times whenever the court requires
his presence operates as a valid restriction on his
right to travel. As we have held in People v. Uy
Tuising, 61 Phil. 404 (1935). ". . . the result of the
obligation assumed by appellee (surety) to hold
the accused amenable at all times to the orders
and processes of the lower court, was to prohibit
said accused from leaving the jurisdiction of the
Philippines, because, otherwise, said orders and
processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued
does not extend beyond that of the Philippines
they would have no binding force outside of said
jurisdiction." Indeed, if the accused were
allowed to leave the Philippines without sufficient
reason, he may be placed beyond the
reach of the courts. (Manotoc, Jr. v. Court of
Appeals, G.R. No. L-62100, May 30, 1986)
Object
Its object is to relieve the accused of
imprisonment and the state of the burden of
keeping him, pending the trial, and at the same
time, to put the accused as much under the
power of the court as if he were in
custody of proper officer, and to secure the
appearance of the accused so as to answer the
call of the court and do what the law may
require of him. (Manotoc, Jr. v. Court of Appeals,
G.R. No. L-62100, May 30, 1986)
Purpose
(1) Bail "acts as a reconciling mechanism to
accommodate both the accused's interest in
pretrial liberty and society's interest in
assuring the accused's presence at trial." Its
purpose is "to guarantee the appearance of
the accused at the trial, or whenever so
required by the court.” Similarly,
"recognizance is a mode of
securing the release of any person in
custody or detention for the commission of
an offense" but is made available to those
who are "unable to post bail due to abject
poverty." (Almonte v. People, G.R. No.
252117, July 28, 2020)
(2) To enable him to prepare his defense
without being subject to punishment prior to
conviction
Constitutional basis of the right to bail
All persons, except those charged with offenses
punishable by RP when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may
be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall
not be required. (Section 13, Article 3,
Constitution)
Forms of Bail
Bail may be given in the form of: (Sec. 1, Rule
114)
613
(a) Corporate surety
Bail furnished by a corporation, whether
domestic or foreign. The corporation must
be:
• Licensed as a surety and authorized to
act as such
• Subscribe the same jointly by the
accused and an officer of the
corporation duly authorized by the
board of directors (Sec. 10, Rule 114)
(b) Property bond
Undertaking constituted as a lien on the real
given as security for the amount of the bail.
(Sec. 11, Rule 114)
Qualifications of the sureties in bond:
(a) Each must be a resident owner of real
estate in the Philippines
(b) Where there is only one surety – his real
estate must be worth at least the
amount of the undertaking
(c) Where there are two or more sureties –
the aggregate must be equivalent to the
whole amount of the bail demanded
(Sec. 12, Rule 114)
(c) Cash deposit
The accused or any person acting in his
behalf may deposit in cash with the:
(a) Nearest collector of internal revenue
(b) PCM treasurer
(c) Clerk of court where the case is pending
(Sec. 14, Rule 114)
Note: A judge is not authorized to receive a
deposit of cash bail.
(d) Recognizance
The accused may be released on
recognizance under R.A. No. 6036, P.D. No.
603 and P.D. 968, as amended. Also, Section
16 of Rule 114, Revised Rules of Criminal
Procedure explicitly provides, "A person in
custody for a period equal to or more than
the minimum of the principal penalty
prescribed for the offense charged, without
application of the Indeterminate Sentence
Law or any modifying circumstance, shall be
released on a reduced bail or on his
own recognizance, at the discretion of the
court." (Marzan v. People, G.R. No. 226167,
October 11, 2021, J. Hernando)
Conditions of bail
All kinds of bail is subject to the following
conditions:
(1) effective upon approval, and shall remain in
force at all stages of the case until
promulgation of the judgment of the RTC
(2) shall appear before the proper court
whenever required
(3) failure of the accused to appear at the trial
without justification and despite due notice
shall be deemed a waiver of his right to be
present thereat. In such case, the trial may
proceed in absentia; and
(4) bondsman shall surrender the accused to the
court for execution of the final judgment.
(Sec. 2, Rule 114)
Requirements of bail
Original papers to be submitted shall comply with
the following:
(1) state the full name and address of the
accused;
(2) amount of the undertaking;
(3) conditions required by this section;
(4) photographs (passport size) taken within the
last six (6) months showing the face, left and
right profiles of the accused must be
attached to the bail (Sec. 2, Rule 114)
No Release or transfer of person in custody
No person under detention by legal process shall
be released or transferred, except:
(a) Upon order of the court
(b) When he is admitted to bail (Sec. 3, Rule
114)
Bail to secure appearance of material
witness.
When the court is satisfied, upon proof of oath,
that a material witness will not testify when
614
required, it may, upon motion of either party,
order the witness to post bail in such sum as may
be deemed proper. Upon refusal to post bail, the
court shall commit him to prison until he complies
or is legally discharged after his testimony has
been taken. (Sec. 14, Rule 114)
2. WHEN A MATTER OF RIGHT;
EXCEPTIONS
General Bail is a matter of right, when:
Rule • before or after conviction by
the MTC or
• before conviction by RTC of
all offenses punishable by a
penalty lower than reclusion
perpetua (Sec. 4, Rule 114)
Exception (a) When the evidence of guilt is
strong in capital offenses or
offenses punishable by
reclusion perpetua or life
imprisonment.
• When accused charged with a
capital offense is a minor, he
is entitled to bail regardless of
whether the evidence of guilt
is strong.
Capital Offense is an offense
which, under the law existing
at the time of its commission
and of the application for
admission to bail, may be
punished with death. (Sec. 7,
Rule 114)
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. (Sec. 8, Rule
114)
(b) Bail in extradition proceedings
(c) Right to bail is not available in
the military.
(d) After judgment has become
final (Sec. 24)
(e) After the accused has
commenced to serve his
sentence
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 710)
When the accused is charged with an offense
punishable by death, reclusion perpetua, or life
imprisonment, the usual procedure is for the
accused to apply for bailwith notice to the
prosecutor. Thereafter, the judge is mandated to
conduct a hearing to primarily determine the
existence of strong evidence of guilt or lack of it,
against the accused. When the
evidence of guilt is not strong, the judge is then
tasked to fix the amount of bail taking into
account the guidelines set forth in Section 9, Rule
114 of the Rules of Criminal Procedure. (Almonte
v. People, G.R. No. 252117, July 28, 2020)
Denial of bail in crime of plunder
The Court ruled that since Napoles was charged
with the crime of Plunder, which carries the
imposable penalty of reclusion perpetua, she
cannot be admitted to bail when the evidence of
her guilt is strong. At that stage of the
proceedings, the bail hearings are limited to the
determination of whether there is a strong
presumption of Napoles' guilt. Even though there
is a reasonable doubt as to the guilt of accused,
if on an examination of the entire record the
presumption is great that accused is guilty of a
capital offense, bail should be refused. As a lesser
quantum of proof than guilt beyond reasonable
doubt, the Sandiganbayan may deny the
application for bail on evidence less than that
required for the conviction of Napoles. It should
not be forgotten that the purpose of the
bailhearing isto determine whetherthe accused is
entitled to provisional liberty before conviction.
To require more from the prosecution, as well as
615
from the trial court, effectively defeats the
purpose of the proceeding (Napoles v.
Sandiganbayan, G.R. No. 224162, November 7,
2017).
3. WHEN A MATTER OF DISCRETION
Bail is discretionary, when:
Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment.
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment. (Sec. 5, Rule 114)
Upon conviction of the RTC, the bail posted
earlier as a matter of right loses its force and the
accused must file a new and separate petition for
bail.
Note: Should the court grant the application, the
accused may be allowed to continue on
provisional liberty during the pendency of the
appeal under the same bail subject to the consent
of the bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution,
with notice to the accused, of the following or
other similar circumstances: (Bail-Negating
Circumstances)
(a) RECIDIVIST - That he is a recidivist, quasi-
recidivist, or habitual delinquent, or has
committed the crime aggravated by the
circumstance of reiteration;
(b) ESCAPED - That he has previously escaped
from legal confinement, evaded sentence, or
violated the conditions of his bail without a
valid justification;
(c) PROBATION That the committed the offense
while under probation, parole, or conditional
pardon;
(d) FLIGHT RISKThat the circumstances of his
case indicate the probability of flight if
released on bail; or
(e) CRIME RISK That there is undue risk that he
may commit another crime during the
pendency of the appeal. (Sec. 5, Rule 114;
M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 712)
In the case of Enrile vs. Sandiganbayan, the court
explained that our national commitment to
uphold the fundamental human rights as well as
value the worth and dignity of every person has
authorized the grant of bail not only to those
charged in criminal proceedings but also to
extraditees upon a clear and convincing showing:
(1) that the detainee will not be a flight risk or a
danger to the community; and (2) that there exist
special, humanitarian and compelling
circumstances. Further more the court explained
that Bail for the provisional liberty of the
accused, regardless of the crime charged, should
be allowed independently of the merits of the
charge, provided his continued incarceration is
clearly shown to be injurious to his health or to
endanger his life. (Enrile v. Sandiganbayan, G.R.
No. 213847, August 18, 2015)
Bail is either a matter of right or of
discretion.
It is a matter of right when the offense charged
is not punishable by death, reclusion perpetua or
life imprisonment.
On the other hand, upon conviction by the
Regional Trial Court of an offense not punishable
death, reclusion perpetua or life imprisonment,
bail becomes a matter of discretion.
Similarly, if the court imposed a penalty of
imprisonment exceeding six (6) years then bail is
a matter of discretion, except when any of the
enumerated circumstances under paragraph 3 of
Sec. 5, Rule 114 is present, then bail shall be
DENIED. (Sec. 5, Rule 114; M. De Leon, Remedial
Law Reviewer-Primer, 2021 Edition, p. 713)
Bail is not required
General Bail is not required when the law
Rule or the Rules so provide.
616
 (a) When the person has been in
custody for a period equal to
or more than the possible
maximum imprisonment
prescribed for the offense
charged – released
immediately
(b) If the maximum penalty is
destierro – released after 30
days of preventive
imprisonment
(c) Cases filed with the MTCs for
an offense punishable by
imprisonment of not less than
4 years, 2 months and 1 day –
judge may issue summons
instead of a warrant of arrest
(if he is satisfied that there is
no necessity for placing the
accused under custody)
(d) If a person is charged with a
violation of a municipal or city
ordinance, a light felony, or a
crime with a penalty not
higher than 6 months
imprisonment and/or a fine of
2,000, where it is established
that he is unable to post the
required cash or bail bond.
Exception (a) In flagrante delicto
(b) He confesses to the crime
(c) Previously escaped
(d) Recidivist, habitual delinquent
(e) Commits an offense while on
parole or conditional
(f) pardon
(g) Previously been pardoned by
the mayor for violation of an
ordinance at least 2 times
(Sec. 16, Rule 114)
Forfeiture vs. Cancellation of Bail
Forfeiture of Bail
If the accused fails to appear before the proper
court whenever required to appear in person, his
bail shall be declared forfeited.
When his presence is required, his bondsmen
shall be notified to produce him before the court
on a given date and time.
The bondsmen shall be given thirty (30) days
within which to produce their principal and to
show cause why no judgment should be rendered
against them for the amount of the bail.
The bondsmen must, within the period:
(1) Produce the body of their principal or give
the reasons for his non-production; and
(2) Explain why the accused did not appear
before the court when first required to do
so.
Failing in these two requirements, a judgment
shall be rendered against the bondsmen, jointly
and severally, for the amount of the bail.
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. (Sec. 21, Rule 114)
Cancellation of bail may either be:
(1) Cancellation by application of the bondsmen
Bail may be cancelled upon application of the
bondsmen with due notice to the prosecutor
upon:
• Surrender of the accused; or
• Proof of his death
(2) Automatic cancellation
The bail may also be deemed automatically
cancelled upon:
• Acquittal of the accused;
• Dismissal of the case; or
• Execution of the judgment of
conviction. (Sec. 22, Rule 114)
617
G. ARRAIGNMENT AND PLEA (RULE 116)
“Arraignment” is the formal mode and manner
of implementing the constitutional right of an
accused to be informed of the nature and cause
of the accusation againsthim. The purpose of
arraignment is to apprise the accused of the
possible loss of freedom, even of his life,
depending on the nature of the crime imputed
to him, or at the very least to inform him of why
the prosecuting arm of the state is mobilized
against him. (People v. Pagal, G.R. No. 241257,
September 29, 2020)
"Plea" is the formal answer of the defendant in
common law pleading. The answer of "guilty" or
"not guilty" in an arraignment for a criminal
charge. Any pleading in an ecclesiastical count,
whether the first one or subsequent one. Any
action at law. (Sibal, Philippine Encyclopedia,
p.730)
Basis of Arraignment
Arraignment is the formal mode and manner of
implementing the constitutional right of
an accused to be informed of the nature and
cause of the accusation against him. (Sec. 14[2],
Art. III, 1987 Constitution)
Purpose of Arraignment
(1) For attachment of double jeopardy there
must be valid arraignment and plea
(2) For the court to proceed trial even accused
is absent
(3) To appraise the accused why he is being
prosecuted by the State.
Importance of Arraignment
(1) Bring the accused in court, mandatory. It is
an indispensable requirement of due
process.
Procedural due process requires that the
accused be arraigned so that he may be
informed of the reason for his indictment,
the specific charges he is bound to face, and
the corresponding penalty that could be
possibly meted against him.
(2) Inform the accused with nature and cause
case
Arraignment is aimed at informing the accused of
the charges against him or her so that he or she
can properly prepare his or her defense
while the conduct of a searching inquiry
(after the accused pleads guilty) is intended to
remove any erroneous impression of
the accused that a lighter penalty will be meted
out if he or she pleads guilty. (People v. Pagal,
G.R. No. 241257, September 29, 2020)
Arraignment and plea; how made
The accused must be arraigned before the
court where the complaint or information was
filed or assigned for trial. The arraignment shall
be made in open court by the judge or clerk by
furnishing the accused with a copy of the
complaint or information, reading the same in the
language or dialect known to him, and asking him
whether he pleads guilty or not guilty. The
prosecution may call at the trial witnesses other
than those named in the complaint or
information. (Sec. 1[a], Rule 116; Ante v.
University of the Philippines Student Disciplinary
Tribunal, G.R. No. 227911, [March 14, 2022, J,
Hernando)
The accused must be present at the arraignment
and must personally enter his plea. Both
arraignment and plea shall be made of record,
but failure to do so shall not affect the validity of
the proceedings. (Sec. 1[b], Rule 116)
Effect of the absence of arraignment
The absence of arraignment results in nullity of
the proceedings before the trial court. If the
618
accused has not been arraigned, he cannot be
tried in absentia.However, if he slept on his right
he cannot claim a violation of this constitutional
right. (People v. Solar y Dumbrique, G.R. No.
225595, August 6, 2019)
Arraignment is not an idle ceremony that can be
brushed aside peremptorily, but an indispensable
requirement of due process, the absence of which
renders the proceedings against the accused
void." Here, there is no proof of the accused's
arraignment. After the Warrant of Arrest issued
against him was returned, his name appeared
again only in the RTC Order but the RTC did not
state if he was belatedly arraigned or if he made
a voluntary appearance. Without evidence of the
accused's arraignment, the RTC had no authority
to order his acquittal. All proceedings against him
before the RTC are deemed void (People of the
Philippines us. Ronald Palema, G.R. No. 228000,
July 10, 2019).
Options of the accused before arraignment
and plea
Before arraignment and plea, the accused may:
(1) Move for a Bill of Particulars - to enable
him properly to plead and to prepare for
trial. The motion shall specify:
(a) The alleged defects of the complaint or
information; and
(b) The details desired. (Sec. 9, Rule 116)
Failure of the accused to file a motion for bill
of particulars amounts to a waiver of the
defect or detail desired in the information.
(People v. Jalbuena, G.R. No. 171163, July 4,
2007)
(2) Suspension of the arraignment - Upon
motion by the proper party, the arraignment
shall be suspended in the following cases:
(a) The accused appears to be suffering
from an unsound mental condition
which effective renders him unable to
fully understand the charge against him
and to plead intelligently thereto. In
such case, the court shall order his
mental examination and, if necessary,
his confinement for such purpose.
Aside from suspension of the
arraignment, the trial court is mandated
to order the confinement of an accused,
who is mentally unsound at the time of
the trial, in one of the hospitals or
asylums established for persons thus
afflicted. (People v. Mctla, G.R. No.
152351, September 18, 2003)
(b) There exists a prejudicial question; and
(c) 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 sixty
(60) days counted from the filing of the
petition with the reviewing office. (Sec.
11, Rule 116)
(d) Motion to quash — At any time before
entering his plea, the accused may
move to quash the complaint or
information on any of the grounds
provided for under Sec. 3 of Rule 117,
in relation to Sec. 1 of Rule 117.
(e) Challenge the validity of arrest or
legality of the warrant issued or assail
the regularity or question the absence
of a preliminary investigation of the
charge (Sec. 26, Rule 114)
Instances when plea of “NOT GUILTY”
should be entered
(a) When the accused so pleaded not guilty;
(b) When the accused refuses to plead;
(c) When the accused makes a conditional plea
(Sec.1[c], Rule 116);
(d) When the accused pleads guilty but
presents exculpatory evidence in which
case the guilty plea shall be deemed
withdrawn and a plea of not guilty shall be
entered (Sec. 1[d], Rule 116).
(e) When in admitting the act charged, he sets
up matters of defense or lawful
justification.
619
Plea bargaining; Plea of guilty to a lesser
offense (Sec. 2, Rule 116).
Plea bargaining in criminal cases is a process
whereby the accused and the prosecution work a
mutually satisfactory disposition of the case
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.
During Requisites:
Arraignment (a) The lesser offense is
necessarily included in the
offense charged; and
(b) The plea must be with the
consent of both the
offended party and the
prosecutor (Sec. 2, Rule
116). The consent of the
offended party will not be
required if said party,
despite due notice, fails to
appear during the
arraignment (Sec. 1[f],
Rule 116).
The acceptance of an offer to
plead guilty to a lesser offense
is not demandable by the
accused as a matter of right but
is a matter addressed entirely to
the sound discretion of the trial
court. That is why it is still
subject to court approval.
After After arraignment but before
Arraignment trial, the accused may still be
but before allowed to plead guilty to said
trial lesser offense after withdrawing
his plea of not guilty. No
amendment of the complaint or
information is necessary (Sec.
2, Rule 116)
After the A change of plea to a lesser
prosecution offense may be granted by the
has rested judge, with the approval of the
its case prosecutor and the offended
party if the prosecution does
not have sufficient evidence to
establish the guilt of the
accused for the crime charged.
The judge cannot on its own
grant the change of plea
(Republic v. Sandiganbayan,
G.R. Nos. 207340 & 207349,
September 16, 2020)
Note: The ruling on the motion
must disclose the strength or
weakness of the prosecution's
evidence Absent any finding on
the weight of the evidence on
hand, the judge's acceptance of
the defendant's change of plea
is improper and irregular.
(Estipona, Jr. y Asuela v.
Lobrigo, G.R. No. 226679,
[August 15, 2017)
Note: Sec. 23 of RA 9165, which prohibits
bargaining in drug cases, is declared as
unconstitutional. The provision is unconstitutional
because it contravenes the rule-making authority
of the Supreme Court.
Plea of guilty to a capital offense vs. non-
capital offense
Plea of guilty to a capital offense
When the accused pleads guilty to a capital
offense, it is not proper for the court to
immediately render judgment on the basis of the
guilty plea. Instead, the court is mandated to
perform the following acts:
(1) To conduct searching inquiry
(a) to ascertain the voluntariness of the plea,
and
(b) to ascertain whether or not the accused
has full comprehension of the
consequences of his plea;
(2) To require the prosecution to prove the
following:
(a) the guilt of the accused, and
(b) the precise degree of his culpability; and
620
(3) To ask the accused if he wishes to present
evidence and allow the accused to present
evidence on his behalf when he so desires
(Sec. 3, Rule 116, Rules of Court; People v.
Pagal, G.R. No. 241257, September 29,
2020)
Note: Trial is mandatory
1. SEARCHING INQUIRY (SEE PEOPLE V.
PAGAL, G.R. NO. 241257, SEPTEMBER
29, 2020)
The searching inquiry requirement means more
than informing cursorily the accused that he faces
a jail term but 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. 65 The searching inquiry of the
trial court must be focused on:
(1) the voluntariness of the plea, and
(2) the full comprehension of the consequences
of the plea. (People v. Pagal, G.R. No.
241257, September 29, 2020)
It entails more than informing the accused that
he faces a jail term, but 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. This is because
an accused often pleads guilty in the hope of a
lenient treatment, or upon bad advice, or
because of promises of the authorities or
parties of a lighter penalty should he admit guilt
or express remorse. (ibid.)
There is no definite and concrete rule as to how
a trial judge must conduct a 'searching inquiry,'"
but nevertheless came up with the following
guidelines:
(1) Ascertain from the accused himself:
(a) how he was brought into the custody of
the law;
(b) whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations; and
(c) under what conditions he was detained
and interrogated during the
investigations. This is accordingly
intended to rule out the possibility that
the accused has been coerced or placed
under a state of duress either by actual
threats of physical harm coming from
malevolent quarters or simply because of
the judge's intimidating robes.
(2) Ask the defense counsel a series of questions
as to whether he had conferred with, and
completely explained to, the accused the
meaning and consequences of a plea of guilty.
(3) Elicit information about the personality
profile of the accused, such as his age, socio-
economic status, and educational background,
which may serve as a trustworthy index of his
capacity to give a free and informed plea of
guilty.
(4) Inform the accused the exact length of
imprisonment or nature of the penalty under
the law and the certainty that he will serve
such sentence. For not infrequently, observed
the Court, an accused pleads guilty in the
hope of a lenient treatment or upon bad
advice or because of 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 ensure that the
accused does not labor under these mistaken
impressions because a plea of guilty carries
with it not only the admission of authorship of
the crime proper but also of the aggravating
circumstances attending it, that increase
punishment.
(5) Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime which is the basis of
his indictment. Failure of the court to do so
would constitute a violation of his fundamental
right to be informed of the precise nature of
the accusation against him and a denial of his
right to due process.
(6) All questions posed to the accused should be
in a language known and understood by the
latter.
(7) The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The
accused must be required to narrate the
621
 tragedy or reenact the crime or furnish its
missing details. (ibid.)
Corollary to this duty, a plea of guilty to a
capital offense without the benefit of a
searching inquiry or an ineffectual inquiry, as
required by Sec. 3, Rule 116 of the 2000
Revised Rules, results to an improvident plea of
guilty. It has even been held that the failure of
the court to inquire into whether the accused
knows the crime with which he is charged and
to fully explain to him the elements of the crime
constitutes a violation of the accused's
fundamental right to be informed of the precise
nature of the accusation against him and a
denial of his right to due process. (ibid.)
This requirement is a reminder that judges
must be cautioned against the demands of
sheer speed in disposing of cases for their
mission, after all, and as has been time and
again put, is to see that justice is done. (ibid.)
Plea of guilty to a non-capital offense
When the accused pleads guilty to a non-capital
offense, the court may receive evidence from
the parties to determine the penalty to be
imposed (Sec. 4, Rule 116).
The duty imposed upon the court under this
section is not as stringent as the duty imposed
upon it when the accused pleads guilty to a
capital offense.
Judgment shall be immediately rendered but
take note it is different from automatic
rendition of judgment.
Hearing is not mandatory and reception of
evidence is discretionary.
2. IMPROVIDENT 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 (Sec. 5, Rule
116).
Where the trial court failed in its duty to conduct
the prescribed "searching inquiry" into the
voluntariness of the accused's plea of guilty and
full comprehension thereof, the plea of guilty is
deemed made improvidently and rendered
inefficacious.
The withdrawal of a plea of guilty is not a matter
of right to the accused but of sound discretion to
the trial court. (People v. Lambino, G.R. No. L-
10875, 1958)
Rule where no plea bargaining or plea of
guilty takes place
If the accused does not enter a plea of guilty,
whether to a lesser offense or to the offense
charged in the information, the court shall
immediately proceed with the arraignment and
the pre-trial.
Suspension of arraignment
(a) 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.
(b) There exists a prejudicial question; and
(c) There is a petition for review of the
resolution of the prosecutor which is pending
at either the Department of Justice, or of the
Office of the President.
The period of suspension shall not exceed sixty
(60) days counted from the filing of the petition
with the reviewing office (Sec. 11, Rule 116).
While the pendency of a petition for review is a
ground for suspension of the arraignment, the
Rules on Criminal Procedure limits the deferment
of the arraignment to a period of 60 days
reckoned from the filing of the petition with the
622
reviewing office. It follows, therefore, that after Information is whether or not the facts alleged
the expiration of said period, the trial court is therein, which are hypothetically admitted, would
bound to arraign the accused or to deny the establish the essential elements of the crime
motion to defer arraignment. The trial court has defined by law. Evidence aliunde or matters
to set the date of arraignment even before the extrinsic of the information are not to be
lapse of 60 days. (People v. Sandiganbayan considered. To be sure, a motion to quash should
(Second Division), G.R. Nos. 185503, 187603 & be based on a defect in the information which is
192166, May 3, 2021) evident on its fact. Thus, if the defect can be
cured by amendment or if it is based on the
The suspension of the arraignment should always ground that the facts charged do not constitute
be within the limits allowed by law. (ABS-CBN an offense, the prosecution is given by the court
Corp. v. Gozon, G.R. No. 195956 , March 11, the opportunity to correct the defect by
2015) amendment. If the motion to quash is sustained,
the court may order that another complaint or
Motion for Postponement Under Rule on information be filed except when the information
Continuous Trial is quashed on the ground of extinction of criminal
liability or double jeopardy. (People v. Odtuhan,
A motion for postponement, whether written or G.R. No. 191566, July 17, 2013)
oral, shall at all times be accompanied by the
original , official receipt from the Office of the General Rule Exception
Clerk of Court evidencing payment of the The court, in (1) Those admitted by the
postponement fee under Sec. 21[b], Rule 141, to resolving the prosecution.
be submitted either at the time of the filing of said motion, cannot (2) A motion to quash
motion or not later than the next hearing date. consider facts based on double
contrary to those jeopardy or extinction
The Clerk of Court shall not accept the motion
alleged in the of the criminal action
unless accompanied by the original receipt. information or or liability, may by
(Subheading III[d], A.M. No. 15-06-10-SC). which do not their nature, be based
appear on the face on matters outside of
H. MOTION TO QUASH (RULE 117) of the information. the allegations of the
information or
A motion to quash is the mode by which an criminal complaint.
accused assails, before entering his plea, (Riano, Criminal
the validity of the criminal complaint or the
Procedure, 2019
Edition, p. 447)
criminal information filed against him for
insufficiency on its face in point of law, or for
Rules Governing Motion to Quash
defect apparent on the face of the Information.
The motion, as a rule, hypothetically admits truth (1) If denied – go to trial without prejudice to
of the facts spelled out in the complaint or reiterating special defenses invoked in said
information. (Ient v. Tullett Prebon (Philippines), motion.
Inc., G.R. Nos. 189158 & 189530, January 11, Well-established is the rule that when a
motion to quash in a criminal case is denied,
2017)
the remedy is not a petition for certiorari but
for petitioners to go to trial without prejudice
The fundamental test in determining the to reiterating the special defenses invoked in
sufficiency of the material averments in an their motion to quash, except, if the court, in

623
 denying the motion to dismiss or motion to (1) The motion to quash must
quash acts without or in excess of be filed before the
jurisdiction or with grave abuse of discretion, arraignment. Thereafter,
then certiorari or prohibition lies (Lazarte, no motion to quash can be
Jr. vs Sandiganbayan, G.R.No. 180122, entertained by the court.
March 13, 2009). (2) It may even be filed during
the preliminary
(2) If after trial on the merits, an adverse investigation.
decision is rendered – appeal in the manner Exceptions A motion to quash can be filed
authorized by law(Marcelo vs. CA, G.R. and entertained at any stage of
106695, August 4, 1994). the proceeding when:
(1) The complaint or
(3) If granted – a final order; immediately information does not
appealable, provided defendant will not be charge an offense.
placed in double jeopardy. (2) The court has no
jurisdiction over the
An order granting motion to quash is a final offense charged.
order which is generally subject to Rule 45 (3) The offense or penalty has
and not Rule 65, subject to an exception that been extinguished.
Rule 65 may be availed of where it can be (4) The defendant has been in
clearly established that there was grave former jeopardy.
abuse of discretion in issuing the order. The (Miranda vs. Sandiganbayan, G.R. No. 154098,
information needs only to state ultimate July 27, 2005)
facts (People vs. Romualdez, G.R. No.
166510, July 23, 2008). Note: Prescription of the offense as a ground for
a motion to quash is not waived as this is a
When Certiorari may be Entertained if substantive right.
Motion to Quash is Denied

(a) when the court issued the order without

or in excess of jurisdiction or with grave Form and Contents
abuse of discretion;
(b) when the interlocutory order is patently (1) Shall be in writing;
erroneous and the remedy of appeal would
(2) Signed by the accused or his counsel; and
not afford adequate and expeditious relief;
(3) Shall distinctly specify its factual and legal
(c) in the interest of a more enlightened and
grounds. (Rule 117, Sec. 2)
substantial justice;
(d) to promote public welfare and public policy;
1. GROUNDS
and
(e) when the cases have attracted nationwide
Grounds for Motion to Quash
attention, making it essential to proceed
(1) That the facts charged do not constitute an
with dispatch in the consideration
offense;
thereof. (Non v. Office of the Ombudsman,
(2) That the court trying the case has no
G.R. No. 251177, September 8, 2020)
jurisdiction over the offense charged;
(3) That the court trying the case has no
When to File jurisdiction over the person of the accused;
General At any time before entering his (4) That the officer who filed the information
Rule plea, the accused may move to had no authority to do so;
quash the complaint or
information. (Rule 117, Sec. 1)

624
 (5) That it does not conform substantially to Motion to Quash Distinguished From
the prescribed form; Demurrer To Evidence
(6) That more than one offense is charged
EXCEPT when a single punishment for Demurrer To
Motion to Quash
various offenses is prescribed by law; Evidence
(7) That the criminal action or liability has been Filed before the Filed after the
extinguished; defendant enters his prosecution has
(8) That it contains averments which, if true, plea. rested its case.
would constitute a legal excuse or Does not go into the Based upon the
justification; and, merits of the case but inadequacy of the
(9) That the accused has been previously is rather anchored on evidence adduced by
convicted or acquitted of the offense matters not directly the prosecution in
charged, or the case against him was concerned with the support of the
dismissed or otherwise terminated without question of guilt or accusation.
his express consent. (Sec. 3, Rule 117; innocence of the
Radaza v. Sandiganbayan, G.R. No. accused.
201380, August 4, 2021, J. Hernando) Governed by Rule Governed by Rule 119
117. Sec. 23
Lack of authority of an officer to file an Does not require a May be filed either
Information, while a ground for quashal, is not a prior leave of court with leave or without
jurisdictional defect. leave of court
(M. De Leon, Remedial Law Reviewer-Primer,
It was therein held that a handling prosecutor's 2021 Edition, p. 773)
lack of prior written authority from the head
prosecutor in the filing of an Information does not Amendment of the complaint or
affect a trial court's acquisition of jurisdiction over information
the subject matter or the person of the accused.
Such handling prosecutor who filed an If the motion to quash is based on:
unauthorized Information but without bad faith or (1) an alleged defect of the complaint or
criminal intent is considered as a de facto officer information which can be cured by
coated with a color of authority to exercise acts amendment, the court shall order that an
that remain valid and official. amendment be made.
(2) the ground that the facts charged do not
If the unauthorized filing was done with malice, constitute an offense, the prosecution shall
the erring officer may be held criminally or be given by the court an opportunity to
administratively liable for usurpation of official correct the defect by amendment.
functions at most. Intentional or not, this
deficiency remains formal, non-jurisdictional, and The motion to quash shall be granted if:
curable at any stage of the criminal proceedings. (1) the prosecution fails to make the
As it always is, jurisdiction springs from amendment; or,
substantive law, whereas a government officer's (2) the complaint or information still suffers from
authority to sue is a matter of mere form and the same defect despite the amendment.
procedure. Purely technical infirmities are never
determinative of a court's jurisdiction. In no case If the defect in the information is curable by
shall it prevent the court from acquiring amendment, the motion to quash shall be
jurisdiction over the offense or the person of the ordered to file an amended information. (Rule
accused. (Radaza v. Sandiganbayan, G.R. No. 117, Sec. 4)
201380, August 4, 2021, J. Hernando)

625
Test in identifying whether the rights of an Exception if accused is also in custody for
accused are prejudiced by the amendment to the another charge
of a complaint or information exceptions
(Rule 117, Sec. 5)
The test on whether the rights of an accused are
prejudiced by the amendment of a complaint or
Order Sustaining the Motion to Quash Not a Bar
information is whether a defense under the
complaint or information, as it originally stood, to Another Prosecution
would no longer be available after the
amendment is made, and when any evidence the General An order sustaining the motion to
accused might have would be inapplicable to the Rule quash is not a bar to another
complaint or information. (Poblete vs. prosecution for the same offense.
Sandiganbayan, G.R. No. 150610, March 25, Exceptions When the motion was based on
2004) following grounds:
(1) That the criminal action or
As laid down by the Supreme Court, an
liability has been
amendment is only in form when it merely adds
extinguished.
specifications to eliminate vagueness in the
(2) That the accused has been
information and not to introduce new and
previously convicted or
material facts, and merely states with additional
acquitted of the offense
precision something which is already contained in
charged, or the case against
the original information and which, therefore,
him was dismissed or
adds nothing essential for conviction for the crime
otherwise terminated
charged (ibid).
without his express consent.

Effect of Sustaining the Motion to Quash

(Rule 117, Sec. 6)
General Court may order that another
Rule complaint or information be filed Note: If motion to quash is based on the ground
Exceptions If the Motion to Quash was based of prescription, Art. 89 of the RPC provides that
on the following: the prescription of crime has the effect of totally
• criminal action or liability has extinguishing the criminal liability.
been extinguished
• double jeopardy An Order Denying a Motion to Quash is
Interlocutory and not Appealable
If in custody, the accused shall
not be discharged unless As a rule, the denial of a motion to quash is an
admitted to bail. interlocutory order and is not appealable:
Exceptions: an appeal from an interlocutory order is not
• when there is no order allowed under Section 1(b), Rule 41 of the Rules
sustaining the motion to of Court. Neither can it be a proper subject
quash of a petition for certiorari which can be used only
• when there is an order in the absence of an appeal or any other
sustaining the motion, but no adequate, plain and speedy remedy. The plain
new information is filed within and speedy remedy upon denial of
the time specified in the order an interlocutory order is to proceed to trial as
or within such further time as discussed above (Tulfo v. People, G.R. No.
the court may allow for good 237620, April 28, 2021)
cause

626
2. DOUBLE JEOPARDY because his act prevents the court from
proceeding to trial on the merits and rendering
(Rule 117, Sec. 7) judgment of conviction against him (People vs.
Obsania, G.R. No. L-24447, June 29, 1968).

It means that when a person is charged with an Effect of Double Jeopardy on the Civil
offense and the case is terminated either by Aspect of the Case
acquittal or conviction or in any other manner
WITHOUT the consent of the accused, the latter A judgment of acquittal is immediately final and
cannot again be charged with the same or executory and the prosecution cannot appeal the
identical offense (Villareal vs. People, G.R. acquittal because of the constitutional prohibition
151258, February, 1, 2012). against double jeopardy. However, either the
offended party or the accused may appeal the
Jeopardy refers to peril in which a person is put civil aspect of the judgment despite the acquittal
when he is regularly charged with a crime before of the accused. The public prosecutor has
a tribunal properly organized and competent to generally no interest in appealing the civil aspect
try him(People vs. Jabajab, G.R. Nos. L-9238-39, of a decision acquitting the accused. The acquittal
November 13, 1956). ends the work of the public prosecutor and the
case is terminated as far as he is concerned (Cruz
Elements to invoke double jeopardy vs. Court of Appeals, G.R. No. 123340, August,
29, 2002).
Section 7 of Rule 117 lays down the requisites in
order that the defense of double jeopardy may Instances When Dismissal Amounts to
prosper. There is double jeopardy when the Acquittal and Bars a Subsequent
following requisites are present: Prosecution for the Same Offense EVEN IF
(1) a first jeopardy attached prior to the Dismissal is at the Instance of Defendant:
second; (a) If predicated upon right to speedy trial of the
(2) the first jeopardy has been validly accused;
terminated; and (b) Due to a variance between the proof and
(3) The second jeopardy must be for the same allegations;
offense, or the second offense includes or is (c) In the strength of a demurrer to evidence;
necessarily included in the offense charged or
in the first information, or is an attempt to (d) Insufficiency of evidence
commit the same or is a frustration thereof.
Acquittal Dismissal
As to the first requisite, the first jeopardy only
Always based on the Does not decide the
after:
merits, that is, the case on the merits or
(1) a valid indictment;
defendant is that the defendant is
(2) before a competent court of jurisdiction;
acquitted because not guilty.
(3) after arraignment;
the evidence does
(4) when a valid plea has been entered; and,
not show defendant’s Dismissal terminates
(5) when the accused has been acquitted or
guilt beyond the proceeding, either
convicted, or the case dismissed or
reasonable doubt. because the court is
otherwise terminated without his express
not a court of
consent (Asistio y Consino v. People, G.R.
competent jurisdiction
No. 200465, April 20, 2015) or the evidence does
not show that offense
If the case is dismissed upon defendant’s request
was committed within
or with his express consent, the dismissal is not a
the territorial
bar to another prosecution for the same offense
jurisdiction of the

627
 court,
or the complaint or
information is not
valid or sufficient in
form and substance,
etc.
Double jeopardy Double jeopardy will
always attaches not always attach
(Bonafe v. Zurbano, G.R. No. L-31753, July 31,
1984)
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 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).
Case illustration when there is no double
jeopardy because not all elements are
present
Canceran never raised the issue of double
jeopardy before the RTC. Even assuming that he
was able to raise the issue of double jeopardy
earlier, the same must still fail because legal
jeopardy did not attach. First, he never entered a
valid plea. He himself admitted that he was just
about to enter a plea, but the first case was
dismissed even before he was able to do so.
Second, there was no unconditional dismissal of
the complaint. The case was not terminated by
reason of acquittal nor conviction but simply
because he posted bail. Absent these two
elements, there can be no double jeopardy
(Canceran vs. People, G.R. No. 206442, July 1,
2015).
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
The conviction of the accused shall not be a bar
to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under any of the
following instances:
(a) the graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
(b) the facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint
or information; or
(c) the plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party except as provided
in Sec. 1[f] of Rule 116. (improper
affirmative plea to a lesser offense)
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the
judgment, he shall be credited with the same in
the event of conviction for the graver offense
(Rule 117, Sec. 7; M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 779)
Same Evidence Test – whether the facts, as
alleged in the second information, if proved,
would have been sufficient to sustain the former
information, or from which the accused may have
been acquitted or convicted.
3. PROVISIONAL DISMISSAL
A case is dismissed without prejudice to its being
refiled or revived; dismissal without prejudice to
the reinstatement thereof.
The concept of a provisional dismissal in our
jurisdiction contemplates the temporary dismissal
628
of a criminal action that may be revived within
the period set by the Rules of Court upon
compliance with certain requisites. There is
nothing in the Rules of Civil Procedure, as
amended, which provides for a provisional
dismissal of a civil case.
(2) In this case, it is apparent from the records
Moreover, a judgment must be definitive; the
decision itself must purport to decide finally the
rights of the parties upon the issue submitted by
specifically denying or granting the remedy
sought by the action. It is significant to note that
in Cu Unjieng E. Hijos v. Mabalacat Sugar
Company (Cu Unjieng) the Court held that when
a definitive judgment cannot be rendered since
the judgment is subject to a contingency, the
judgment contains no disposition at all and is null
and void. (Philippine National Bank v. Daradar,
G.R. No. 180203, June 28, 2021, J. Hernando)
Requisites:
A case is provisionally dismissed if the following
requisites concur:
(a) The prosecution with the express
conformity of the accused, or the accused,
moves for a provisional dismissal (sin
perjuicio) of his case; or both the
prosecution and the accused move for its
provisional dismissal;
(b) The offended party is notified of the motion
for a provisional dismissal of the case;
(c) The court issues an Order granting the
motion and dismissing the case
provisionally; and
(d) The public prosecutor is served with a copy
of the Order of provisional dismissal of the
case.
Illustrative cases:
(1) In the case at bar, none of the foregoing
requisites were met. While it may appear
that the respondents consented to a
provisional dismissal of the case under the
Compromise Agreement, the prosecution
neither presented the same for the court's
approval nor filed the required motion to
that effect such that no order was in fact
issued granting the provisional dismissal of
the case. Hence, petitioner's assertion that
the respondents are estopped from
invoking their right to speedy trial is without
basis. (Bonsubre, Jr. v. Yerro, G.R. No.
205952, February 11, 2015, 753 PHIL 653-
666)
that there is no notice of any motion for
the provisional dismissal or of the hearing
thereon which was served on the private
complainant at least three days before said
hearing as mandated by Section 4, Rule
15 of the Rules. The fact is that it was only
in open court that Co moved for provisional
dismissal "considering that, as per records,
complainant had not shown any
interest to pursue her complaint."
The importance of a prior notice to the
offended party of a motion for provisional
dismissal: Such notice may be served on the
offended party or the heirs of the victim
through the private prosecutor, if there is
one, or through the public prosecutor who
in turn must relay the notice to the offended
party or the heirs of the victim to enable
them to confer with him before the hearing
or appear in court during the hearing. The
proof of such service must be shown during
the hearing on the motion, otherwise, the
requirement of the new rule will become
illusory. Such notice will enable the
offended party or the heirs of the victim the
opportunity to seasonably and effectively
comment on or object to the motion on
valid grounds, including: (a) the collusion
between the prosecution and the accused
for the provisional dismissal of a criminal
case thereby depriving the State of its right
to due process; (b) attempts to make
witnesses unavailable; or (c) the provisional
dismissal of the case with the consequent
release of the accused from detention
would enable him to threaten and kill the
offended party or the other prosecution
witnesses or flee from Philippine
jurisdiction, provide opportunity for the
destruction or loss of the prosecution’s
physical and other evidence and prejudice
the rights of the offended party to recover
629
 on the civil liability of the accused by his
concealment or furtive disposition of his
property or the consequent lifting of the
writ of preliminary attachment against his
property. (Co v. New Prosperity Plastic
Products, G.R. No. 183994, June 30, 2014)
Time-bar Rule (Provisional Dismissal
Becomes Permanent for Failure to Revive
the Case Within):
(1) 1 year: for offenses punishable by
imprisonment not exceeding 6 years.
(2) 2 years: for offenses punishable by
imprisonment of more than 6 years. (Sec. 8,
Rule 117)
Note: The period above is counted from the
receipt by the public prosecutor of the copy of the
order of provisional dismissal.
Exception to the periods:
Speedy Disposition of Cases: If the cases were
revived only after the 2-year bar, the State must
be given the opportunity to justify its failure to
comply with said timeline. The new rule fixes a
timeline to penalize the State for its inexcusable
delay in prosecuting cases already filed in courts.
It can therefore present compelling reasons to
justify the revival of cases beyond the 2-year bar.
(People vs. Lacson, G.R. No. 149453, April 1,
2003).
Failure to Move to Quash or to Allege any
Ground Therefor
General All grounds for a motion to quash
Rule are waived if not seasonably
raised.
Exceptions (1) When the information does
not charge an offense;
(2) When the ground is lack of
jurisdiction of the court;
(3) When the ground is
extinction of the offense or
penalty, and;
(4) When the ground is double
jeopardy.
(Rule 117, Sec. 9)
I. PRE-TRIAL (RULE 118)
Note: Rule 118 has been amended by 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).
Coverage
Pre-trial is a proceeding which is mandatory in
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. (Sec. 1, Rule
118)
Purpose of Pre-trial
It is conducted before trial of the case for the
purpose of considering the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the
parties;
(d) waiver of objections to admissibility of
evidence;
(e) modification of the order of trial if the
accused admits the charge but interposes a
lawful defense; and
(f) such other matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case (Sec. 1, Rule 118)
Agreements covering these matters shall be
approved by the court. (Sec. 2, Rule 118)
Respondent judge failed to conduct the pre-trial
conference itself. It is elementary and plain that
the holding of such a pre-trial conference is
mandatory and failure to do so is inexcusable.
When the law or procedure is so elementary, such
as the provisions of the Rules of Court, not to
know it or to act as if one does not know it
constitutes gross ignorance of the law. Such
ignorance of a basic rule in court procedure, as
failing to conduct pre-trial, sadly amounts to
630
gross ignorance and warrants a corresponding
penalty (National Power Corporation vs. Adiong,
A.M. No. RTJ-07-2060 [Formerly OCA IPI No. 06-
2498-RTJ], July 27, 2011).
Period for Court to Order Pre-trial Conference
General Rule Exception
After arraignment and When a shorter
within 30 days from period is provided for
the date the court in special laws or
acquires jurisdiction circulars of the
over the person of the Supreme Court.
accused.
(Sec. 1, Rule 118)
Note: The court shall proceed with the pre-trial
despite the absence of the accused and/ or
private complainant, provided they were duly
notified of the same, and the counsel for the
accused, as well as the public prosecutor, are
present. (Part III, 8[f], A.M. No. 15-06-10-SC,
effective September 1, 2017)
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:
(1) Requiring the private offended party to
appear thereat for purposes 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).
Preliminary Conference in Criminal Cases
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 (Part I, B[3], 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.
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
631
satisfactory disposition of the case subject to
court approval. There is give-and-take
negotiation common in plea bargaining. The
essence of the agreement is that both the
prosecution and the defense make concessions
to avoid potential losses. 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.
(Sayre y Malampad v. Xenos, G.R. Nos. 244413 &
244415-16, February 18, 2020)
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.
(Gonzales III v. Office of the President of the
Phils., G.R. Nos. 196231 & 196232, September 4,
2012)
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.
What the Court Should Do When
Prosecution and Offended Party Agree to
the Plea Offered by the Accused
The court shall:
(1) Issue an order which contains the plea
bargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case; and,
Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence. (Part I, B[3], A.M.
No. 03-1-09-SC)
Court Action When Plea Bargaining Fails
(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
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:
• the identity of the accused;
• court’s territorial jurisdiction relative to
the offense/s charged;
• qualification of expert witness/es;
• amount of damages;
• genuineness and due execution of
documents;
• the cause of death or injury, in proper
cases;
• adoption of any evidence presented
during the preliminary investigation;
• disclosure of defenses of alibi, insanity,
self-defense, exercise of public authority
and justifying or exempting
circumstances; and,
• 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
632
 interposes a lawful defense. (Part I, B[6],
A.M. No. 03-1-09-SC)
Pre-Trial Proper
The judge shall be the one to ask questions on
issues raised during the pre-trial.
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. (Part I, B[7 and 9], A.M. No. 03-1-09-
SC)
1. PRE-TRIAL AGREEMENT
Agreements or admissions made and entered
during the pre-trial conference; court approval is
required on matters reffered to in Sec. 1. (Sec. 2,
Rule 118)
Requisites:
(a) Reduced in writing; and
(b) Signed by the accused and counsel. (ibid.)
In these cases, while the informations allege
that complainant was a "minor fourteen years of
age" at the time of the commission of the rapes
and that accused-appellant is the “father of the
offended party," only the relationship of accused-
appellant to the complainant has been
sufficiently established. To be sure, the minority
of complainant (14 years of age at the time of the
commission of the rapes) was the subject of the
parties' stipulation of facts. However, the
stipulation of facts was not signed by accused-
appellant as required by Rule 118, Sec. 2 of the
Revised Rules of Criminal Procedure which
provides that "No agreement or admission made
or entered during the pre-trial conference shall
be used in evidence against the accused unless
reduced to writing and signed by him and his
counsel." This requirement is mandatory.
Thus, the stipulation of facts in this case cannot
be used as evidence of complainant's age
at the time of the rapes in question. (People v.
Agravante y Zantua, G.R. Nos. 137297 & 138547-
48, December 11, 2001)
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).
Stipulation of facts during pre-trial is allowed by
Rule 118 of the Revised Rules of Criminal
Procedure. Section 2 of Rule 118, meanwhile,
prescribes that 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. In this case, while it
appears that the pre-trial agreement was signed
only by the prosecution and defense counsel, the
same may nevertheless be admitted given that
the defense failed to object to its admission.
(People v. Likiran, G.R. No. 201858, June 4,
2014)
2. NON-APPEARANCE DURING PRE-
TRIAL
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. (Sec. 3, Rule 118)
Sanctions and Penalties for Non –
Appearance Refer to the Counsel for the
Accused and the Prosecutor
The failure of a party to appear at the pre-trial
has adverse consequences.
633
• If the party is the plaintiff, then he may be
declared non-suited and his case dismissed.
• If it is the defendant who fails to appear,
then the plaintiff may be allowed to present
his evidence ex parte and the court to render
judgment on thebasis thereof.
Thus, the plaintiff is given the privilege to
present his evidence without objection from
the defendant, the likelihood being that the court
will decide in favor of the plaintiff, the
defendant having forfeited the opportunity to
rebut or present its own evidence.
By way of exception, the Rules provide that the
non-appearance of a party and counsel mat be
excused if (1) a valid cause is shown; or (2)
there is an appearance of a representative on
behalf of a party fully authorized in writing to
enter into an amicable settlement, to submit
alternative modes of dispute resolution, and to
enter into stipulations or admissions of facts
and of documents. What constitutes a valid cause
is subject to the court's sound discretion and the
exercise of such discretion shall not be disturbed
except in cases of clear and manifest abuse.
(Figueroa v. Land Bank of the Philippines, G.R.
Nos. 210069-70 (Notice), June 20, 2018)
Section 8 of Rule 70 of the Rules of Court
requires the appearance of the plaintiff and the
defendant during the preliminary 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).
Court may sanction or penalize counsel for the
accused if the following concur:
(1) counsel does not appear at the pre-trial
conference and
(2) counsel does not offer an acceptable excuse.
Court may sanction or penalize prosecutor for the
accused if the following concur:
(1) prosecutor does not appear at the pre-trial
conference and
(2) prosecutor does not offer an acceptable
excuse.
Pre-trial is meant to simplify, if not fully dispose
of, the case at its early stage; during pre-
trial, attorneys must make a full disclosure of
their positions as to what the real issues of the
trial would be. They should not be allowed to
embarrass or inconvenience the court or injure
the opposing litigant by their careless
preparation for a case; or by their failure to raise
relevant issues at the outset of a trial (Garayblas
v. Ong, G.R. Nos. 174507-30, August 3, 2011; M.
De Leon, Remedial Law Reviewer-Primer, 2021
Edition, p. 792)
3. PRE-TRIAL ORDER
It is an order issued by the trial judge within ten
(10) days AFTER the termination of the pre-trial.
Note: The pre-trial order shall immediately be
served upon parties and counsel on the same day
after the termination of the pre-trial (Riano,
Criminal Procedures, 2019, p. 510; Part III, 8[f],
A.M. No. 15-06-10-SC, effective September 1,
2017)
Contents of Pre-trial Order
Pre-trial order is issued by court after pre-trial
conference reciting the:
(1) Actions taken;
(2) Facts stipulated; and
(3) Evidence marked. (Rule 118, Sec. 4)
Purpose 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)
634
Note: It can be modified by the court to prevent
manifest of injustice.
J. TRIAL (RULE 119)
Trial is a judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with closing arguments. (Tan, Criminal
Procedure: A Comprehensive Approach for the
Bench and the Bar, 2015 Edition, p. 1099 citing
Acosta vs. People, G.R. No. L-17427, July 31,
1962)
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 purpose of
determining such issue (U.S. vs. Raymundo, G.R.
NO. L-8149, February 15, 1916).
Nature
Trial before the court is adversarial in character,
and which requires the presentation of evidence
and examination of witnesses before court. (Tan,
Criminal Procedure: A Comprehensive Approach
for the Bench and the Bar, 2015 Edition, p. 1099)
Time to prepare for trial
(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 (Sec. 1,
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).
Continuous Trial System
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. (Sec. 2, Rule 119)
Limitation on the Trial Period
General Rule Exception
Trial shall in no case When otherwise
exceed 180 days from provided by the
the first day of trial. Supreme Court.
Instances When Presence of the Accused is
Required
(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
(Sec. 14 [2], Art. III, 1987 Constitution;
Marcos vs. Ruiz, G.R. Nos. 70746-47,
September 1, 1992).
Requisites Before Trial can be Suspended
on Account of Absence of Witness
(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.
(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. (M.
De Leon, Remedial Law Reviewer-Primer,
2021 Edition, pp. 795-796)
1. TRIAL IN ABSENTIA
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
635
unjustifiable." (Estrada vs. People of the from date of the within 10
Philippines,G.R. No. 162371. August 25, 2005). court's receipt of calendar
the case for a days
Requisites detained accused
1. Accused has been arraigned; Prepare for Plea of guilty At least
2. He has been duly notified of the trial; and, trial 15 days
3. His failure to appear is unjustified (People v. Initiate trial Receipt of pre-trial Within 30
Salas, G.R. No. L-66469, July 29, 1986) order days
Trial period First day of Trial 180 days
Under the old doctrine, trial in absentia of the
escapee could not be held because he could not Exception:
be duly notified thereof. Under the present rule, (a) When authorized by the Supreme Court
the fugitive is deemed to have waived such notice (b) Exclusions (Rule 119, Sec. 3)
precisely because he has escaped, and it is also
this escape that makes his failure to appear at his EXCLUSIONS to the Computation of Time
trial unjustified. Escape can never be a legal for Trial to Commence
justification(People vs. Agbulos, G.R. No. 73875,
May 18, 1993). (1) Delay resulting from other proceedings
concerning the accused, including but not
Remedies of an Accused When Prosecuting limited to the following:
Officer Secures Postponement of Trial (a) Delay resulting from an examination of
the physical and mental condition of the
When a prosecuting officer, without good cause, accused;
secures postponements of the trial of a defendant (b) Delay resulting from proceedings with
against the latter’s protest and beyond a respect to other criminal charges
reasonable period of time, the accused may against the accused;
resort to the following remedies: (c) Delay resulting from extraordinary
remedies against interlocutory orders;
(a) Mandamus to compel a dismissal of the (d) Delay resulting from pre-trial
information; proceedings; provided, that the delay
(b) Habeas corpus to obtain his freedom, if he is does not exceed thirty (30) days;
restrained of his liberty; (e) Delay resulting from orders of
(c) Adhere faithfully to the session hours inhibition, or proceedings relating to
prescribed by laws; or, change of venue of cases or transfer
(d) Maintain full control of the proceedings. from other courts;
(f) Delay resulting from a finding of the
Time limit within which the accused must existence of a prejudicial question; and
be brought to trial (g) Delay reasonably attributable to any
period, not exceed thirty (30) days,
Action From No. of during which any proceeding which any
Days proceeding concerning the accused is
Arraignment from the date the 30 days actually under advisement.
and Pre-trial court acquires
jurisdiction (either (2) Delay resulting from the absence or
by arrest or unavailability of an essential witness
voluntary
surrender) over a An essential witness shall be considered:. He
non-detained shall be considered.
accused

636
 Absent Unavailable periods of time established therein. (Sec.
when his whenever his 4, Rule 119)
whereabouts are whereabouts are
unknown or his known but his Time Limit Following Order for New Trial
whereabouts presence for trial
cannot be cannot be obtained If the accused is to be tried again pursuant to an
determined by due by due diligence order for a new trial
diligence
General Rule Exception
(3) Any period of delay resulting from the Trial shall The court may extend it but
mental incompetence or physical inability of commence not to exceed 180 days
the accused to stand trial. within 30 days from notice of said order
from notice of for a new trial
(4) If the information is dismissed upon motion the new trial (a) Period impractical due
of the prosecution and thereafter a charge is order to unavailability of
filed against the accused for the same witness
offense, any period of delay from the date (b) Other factors
the charge was dismissed to the date the (Sec. 5, Rule 119)
time limitation would commence to run as to
the subsequent charge had there been no Remedies When Accused is NOT Brought to
previous charge. Trial Within the Prescribed Period
(1) The information may be dismissed on motion
(5) A reasonable period of delay when the of the accused on the ground of denial of his
accused is joined for trial with a co-accused: right to speedy trial.
(2) Dismissal shall constitute double jeopardy.
(a) court has not acquired jurisdiction, or, (3) The accused must move to dismiss before
(b) as to whom the time for trial has not trial actually commences, otherwise, he
run and no motion for separate trial has waives such right. (Rule 118, Sec. 9)
been granted.
Dismissal without Prejudice Distinguished
(6) Continuance from Dismissal with Prejudice

Granting of postponement by the court is

discretionary. (Rule 119, Sec. 3) Dismissal
Dismissal with
without
Prejudice
Factors for granting continuance. Prejudice
The following factors, among others, shall be Allows a new An adjudication on the
considered by a court in determining whether to suit to be merits, the final disposition
grant a continuance: brought on the barring the right to bring or
(a) Whether or not the failure to grant a same cause of maintain an action on the
continuance in the proceeding would likely action. same claim or cause; res
make a continuation of such proceeding judicata as to every matter
impossible or result in a miscarriage of litigated.
justice; and
(b) Whether or not the case taken as a whole Constitutional Right to Speedy Disposition
is so novel, unusual and complex, due to of Cases; Factors to determine delay
the number of accused or the nature of the
prosecution, or that it is unreasonable to Section 16. All person shall have the right to a
expect adequate preparation within the speedy disposition of their cases before all
Judicial, quasi-judicial, or administrative bodies.

637
Guidelines to determine whether the right to
speedy disposition of cases has been violated, to
with:
The concept of speedy disposition is relative or
flexible. A mere mathematical reckoning of the
involved is not sufficient. Particular regard must
be taken of the facts and circumstances peculiar
to each case. Hence, the doctrinal rule is that in
the determination of whether that right has been
violated, the factors thet may be
considered and balanced are as follows:
(1) the length of delay;
(2) the reasons for the delay;
(3) the assertion or failure to assert such right
by the accused; and
(4) the prejudice caused by the delay.
(Zaldivar-Perez v. First Division of the
Sandiganbayan, G.R. No. 204739, [November 13,
2019, J. Hernando)
Prejudice should be assessed in the light of the
interest of the defendant that the speedy trial
was designed to protect, namely:
(1) to prevent oppressive pre-trial
incarceration;
(2) to minimize
anxiety and concerns of the accused to trial
; an
(3) to limit the possibility that his defense will
be impaired. (People v. Pagal, G.R. No.
241257, September 29, 2020)
“Speedy disposition of cases” is consistent with
reasonable delays. if the long delay in the
termination of the preliminary investigation was
not solely the prosecution’s fault, but was also
due to incidents attributable to the accused and
his counsel, the right of the accused to speedy
disposition of cases is not violated. (Mendoza-
Ong vs. Sandiganbayan, et al., G.R. No. 146368-
69, October 18,2004)
In criminal cases, a motion to dismiss may be filed
on the ground of denial of the accused’s right to
speedy trial. This denial is characterized by
unreasonable, vexatious, and oppressive delays
without fault of the accused, or by unjustified
postponements that unreasonably prolonged the
trial. This was the main thrust of Cabador’s
motion to dismiss and he had the right to bring
this up for a ruling by the trial court. The fact is
that Cabador did not even bother to do what is so
fundamental in any demurrer. He did not state
what evidence the prosecution had presented
against him to show in what respects such
evidence failed to meet the elements of the crime
charged. His so-called "demurrer" did not touch
on any particular testimony of even one witness.
He cited no documentary exhibit. Indeed, he
could not because, he did not know that the
prosecution finally made its formal offer of
exhibits on the same date he filed his motion to
dismiss. To say that Cabador filed a demurrer to
evidence is equivalent to the proverbial blind
man, touching the side of an elephant, and
exclaiming that he had touched a wall (People vs.
Cabador, G.R. No. 186001, October 2, 2009).
Order of Trial
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. (Sec. 11, Rule 119; People
v. Pagal, G.R. No. 241257, September 29,
2020)
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.
638

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. As it turned out,
petitioner's appeal has in fact caused more, a lot
more, delay than would have been caused by
proceeding with the trial forthwith as directed by
the trial court. No further delay should be
countenanced in these cases. (People vs. 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.
2. EXAMINATION OF WITNESS FOR THE
PROSECUTION (SEE PEOPLE V.
SERGIO, G.R. NO. 240053, OCTOBER 9,
2019)
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 witnesses 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).
General Rule: 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 petitioners’ contention, there is
nothing in the rule which may remotely be
interpreted to mean that such requirement
applies only to cases where the witness is within
the jurisdiction of said court and not when he is
kilometers away, as in the present case.
Therefore, the court may not introduce
exceptions or conditions. xxx Considering that
Rule 119 adequately and squarely covers the
situation in the instant case, we find no cogent
reason to apply Rule 23 suppletorily or otherwise
(Vda. De Manguerra vs. Risos, G.R. No. 152643,
August 28, 2008).
Exception: (People vs. Sergio and
Lacanilao, G.R. No. 240053, October 9,
2019, J. Hernando)
639
Depositions, however, are recognized under Rule
23 of the Rules on Civil Procedure. Although the
rule on deposition by written interrogatories is
inscribed under the said Rule, the Court holds
that it may be applied suppletorily in criminal
proceedings so long as there is compelling
reason.
The OSG asserts the presence of the following
extraordinary circumstances:
(1) Mary Jane's conviction by final judgment and
her detention in a prison facility in
Yogyakarta, Indonesia, while awaiting
execution by firing squad;
(2) The grant by the Indonesian President of an
indefinite reprieve in view of the ongoing
legal proceedings against Cristina and Julius
in the Philippines; and
(3) The conditions attached to the reprieve
particularly that Mary Jane should remain in
confinement in Indonesia, and any question
propounded to her must only be in writing.
Verily, in light of the unusual circumstances
surrounding the instant case, the Court sees no
reason not to apply suppletorily the provisions of
Rule 23 of the Rules on Civil Procedure in the
interest of substantial justice and fairness. Hence,
the taking of testimony of Mary Jane through a
deposition by written interrogatories is in order.
a material witness’ preservation also of a
testimony. material witness’
testimony.
If the court is satisfied that the examination of
witness is necessary as provided in Sec 4, an
order directing that the witness be examined shall
be made and a copy served on the fiscal.
The examination shall be taken before any judge
or, if not practicable, before any member of the
Bar in good standing so designated in the order.
The examination shall proceed notwithstanding
the absence of the prosecutor provided he was
duly notified of the hearing. A written record of
the testimony shall be taken (Rule 119 Sec. 13).
Bail to Secure Appearance of Material
Witness (Rule 119, Sec. 14)
Requisites:
(1) Court is satisfied, upon proof or oath, that a
material witness will not testify when
required;
(2) Motion by either party; and,
(3) Order of court to the witness to post bail
Effect of Refusal to Post Bail: The court shall
commit the witness to prison.

APPLICATION FOR Period of Imprisonment

MODES OF
EXAMINATION OF (1) Until the witness complies; or,
DISCOVERY
WITNESS UNDER (2) Until he is legally discharged after his
UNDER THE
THE RULES OF testimony has been taken
CIVIL
CRIMINAL
PROCEDURE
PROCEDURE (Rule
(Rule 24) Conditional Examination of Witness for the
119, Sec. 12)
Prosecution
Rule 24 applies in a The procedure set forth
suppletory character must be complied with
When Witness may be Conditionally
in all matters not strictly.
Examined
specifically touched
(1) Witness is too sick or infirm to attend trial;
on by Sec. 12, Rule
or,
119 and the
(2) He has to leave the Philippines with no
preceding sections.
definite date of returning.
The taking of The conditional
depositions under examination of a
Note: Such examination in the presence of the
Rule 24 is taken for defense witness under
accused or in his absence after reasonable notice
the preservation of Sec. 12 and 13, Rule
to attend the examination has been served on
119 are taken for the

640
him shall be conducted in the same manner as in
examination at the trial.
Failure or refusal of the accused to attend after
notice shall be considered as a waiver(Sec. 15,
Rule 119)
Illustrative cases:
The conditional examination of a prosecution
witness must take place at no other place than
the court where the case is pending, the RTC
properly nullified the MeTC's orders granting the
motion to take the deposition of Li Luen Ping
before the Philippine consular official in Laos,
Cambodia.
The condition of the private complainant being
sick and of advanced age falls within the provision
of Section 15 Rule 119 of the Rules of Court.
However, said rule substantially provides that he
should be conditionally examined before the court
where the case is pending. Thus, this Court
concludes that the language of Section 15 Rule
119 must be interpreted to require the parties to
present testimony at the hearing through live
witnesses, whose demeanor and credibility can
be evaluated by the judge presiding at the
hearing, rather than by means of deposition. No
where in the said rule permits the taking of
deposition outside the Philippines whether the
deponent is sick or not. (Go v. People, G.R. No.
185527, July 18, 2012)
The conditional examination of a prosecution
witness for the purpose of taking his deposition
should be made before the court, or at least
before the judge, where the case is pending. Such
is the clear mandate of Section 15, Rule 119 of
the Rules. We find no necessity to depart from,
or to relax, this rule. As correctly held by the CA,
if the deposition is made elsewhere, the accused
may not be able to attend, as when he is under
detention. More importantly, this requirement
ensures that the judge would be able to observe
the witness' deportment to enable him to properly
assess his credibility. This is especially true when
the witness' testimony is crucial to the
prosecution's case, we cannot disregard rules
which are designed mainly for the protection of
the accused's constitutional rights. The giving of
testimony during trial is the general rule. The
conditional examination of a witness outside of
the trial is only an exception, and as such, calls
for a strict construction of the rules. (Vda. de
Manguerra v. Risos, G.R. No. 152643, August 28,
2008)
Face-to-Face Confrontation
The requirement insures that the witness will give
his testimony under oath, thus deterring lying by
the threat of perjury charge; it forces the witness
to submit to cross-examination, a valuable
instrument in exposing falsehood and bringing
out the truth; and it enables the court to observe
the demeanor of the witness and assess his
credibility."(Bernas, J.G., The 1987 Constitution:
A Commentary, 1996 Edition, p. 463, citing U.S.
vs. Anastacio, G.R. No. 2821, August 30, 1906;
U.S. vs. Raymundo,G.R.No. 4947, November 11,
1909; and U.S. vs. Javier,G.R. No. 12990, January
21, 1918)
Cross-Examination of a Witness
There is also the advantage of the witness before
the judge, and it is this – it enables the judge as
trier of facts "to obtain the elusive and
incommunicable evidence of a witness'
deportment while testifying, and a certain
subjective moral effect is produced upon the
witness. It is only when the witness testifies orally
that the judge may have a true idea of his
countenance, manner and expression, which may
confirm or detract from the weight of his
testimony. Certainly, the physical condition of the
witness will reveal his capacity for accurate
observation and memory, and his deportment
and physiognomy will reveal clues to his
character. These can only be observed by the
judge if the witness testifies orally in court.
(People vs. Estenzo, G.R. No. L-41166, August
25, 1976)
641
 CROSS- who was not able to cross-
FACE-TO-FACE
EXAMINATION OF examine him.
CONFRONTATION
A WITNESS IN A (Rule 119, Sec. 16)
IN A PUBLIC
FOREIGN PLACE
CRIMINAL TRIAL
OUTSIDE THE 3. REQUISITES FOR DISCHARGE OF
IN THE PRESENCE
COURTROOM IN ACCUSED TO BECOME A STATE
OF THE PRESIDING
THE ABSENCE OF WITNESS
JUDGE
A TRIAL JUDGE
The right of The main and Under Rules of Court
confrontation is held to essential purpose of
apply specifically to requiring a witness Motion to discharge should be made by the
criminal proceedings. to appear and testify prosecution before resting its case.
It has a two-fold orally at a trial is to
purpose: secure for the In the discharge of an accused in order that he
adverse party the may be a state witness, the following conditions
(1) to afford the opportunity of cross- must be present, namely:
accused an opportunity examination.
to test the testimony of (1) Two or more accused are jointly charged
witnesses by cross- This is for the with the commission of an offense;
examination; and, purpose of cross (2) The motion for discharge is filed by the
(2) to allow the judge examination which prosecution before it rests its case;
to observe the cannot be had (3) The prosecution is required to present
deportment of except by the direct evidence and the sworn statement of each
witnesses. and personal putting proposed state witness at a hearing in
of questions and support of the discharge;
obtaining immediate (4) The accused gives his consent to be a state
answers. witness; and,
(5) The trial court is satisfied that:
Trial of Several Accused (a) There is absolute necessity for the
testimony of the accused whose
General Joint trial – applies when two or
discharge is requested;
Rule more accused are jointly charged
(b) There is no other direct evidence
with any offense
available for the proper prosecution of
Exception Separate trial – applies when the the offense committed, except the
court, in its discretion and upon testimony of said accused;
motion of the prosecutor or any (c) The testimony of said accused can be
accused, orders separate trial for substantially corroborated in its material
one or more accused. points;
(d) Said accused does not appear to be the
1. The motion for separate trial most guilty; and,
must be filed before the (e) Said accused has not at any time been
commencement of the trial convicted of any offense involving moral
and cannot be raised for the turpitude (Jimenez, Jr. v. People, G.R.
first time on appeal. Nos. 209195 & 209215, September 17,
If a separate trial is allowed to 2014], 743 PHIL 468-494)
one of two or more defendants,
his testimony therein imputing Note: Absence of any of the requisites is a
guilt to any of the co-accused is ground for objection to the motion for his
not admissible against the latter discharge, but such objection must be raised
before the discharge is ordered.

642

Sec. 17, Rule 119 is applicable only to cases
already filed in court. The trial court is given the
power to discharge an accused as a state witness
only because it has already acquired jurisdiction
over the crime and the accused; the power to
choose who to discharge as state witness is an
executive function. Essentially, it is not a judicial
prerogative. The fact that an individual had not
been previously charged or included in an
information does not prevent the prosecution
from utilizing said person as a witness. (Pontejos
vs. Desierto, G.R. No. 148600. July 7, 2009)
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).
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).
Under R.A. No. 6981
Admission to the Witness Protection
Program
Requisites:
(1) The person has witnessed or has knowledge
or information on the commission of a crime.
(2) The person has testified or testifying or
about to testify before any judicial or quasi-
judicial body or before any investigating
authority;
(3) The offense in which his testimony will be
used is a grave felony as defined under the
RPC, or its equivalent under special laws;
(4) His testimony can be substantially
corroborated in its material points;
(5) He or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to his life or
bodily injury or there is a likelihood that he
will be killed, forced, intimidated, harassed
or corrupted to prevent him from testifying
or to testify or evasively because of or on
account of his testimony; and,
(6) He is not a law enforcement officer, even if
he would be testifying against other law
enforcement officers. In such case, only
immediate members of his family may avail
themselves of the protection provided for
under the Witness Protection Act. (R.A. No.
6981)
Responsibilities of a Witness under the
Witness Protection Program
(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).
643
4. EFFECTS OF DISCHARGE OF ACCUSED
AS STATE WITNESS
If granted – Evidence adduced in support of the
discharge shall automatically form part of the
trial.
General Rule Exception
It operates as an When the state witness
acquittal and bar fails or refuses to testify in
to further accordance with his sworn
prosecution for statement from which his
the same discharge was based.
offense.
If denied – the accused’s sworn statement shall
be inadmissible in evidence.
Exceptions to the Effects of a Motion to
Discharge
(a) If the accused fails or refuses to testify
against his co-accused in accordance with
his sworn statement constituting the basis of
the discharge;
(b) Failure to testify refers exclusively to
defendant’s will or fault.
(c) 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).
(d) 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
When it becomes manifest at any time before
judgment that a mistake has been made in
charging the proper offense and the accused
cannot be convicted of the offense charged or
any other offense necessarily included therein,
the accused shall not be discharged if there
appears good cause to detain him. In such case,
the court shall commit the accused to answer for
the proper offense and dismiss the original case
upon the filing of the proper information. (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:
(a) A first jeopardy must have attached prior
to the second;
(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
Grounds:
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. (Rule 119, Sec.
21)
644

Consolidation of Trials of Related Offenses
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. (Rule 119, Sec. 22)
5. DEMURRER TO EVIDENCE
A demurrer to evidence is a motion to dismiss on
the ground of insufficiency of evidence. It is a
remedy available to the defendant, to the effect
that the evidence produced by the plaintiff is
insufficient in point of law, whether true or not,
to make out a case or sustain an issue. The
question in a demurrer to evidence is whether the
plaintiff, by his evidence in chief, had been able
to establish a prima facie case (Republic vs De
Borja, G.R. 187448, January 9, 2017).
Demurrer to Evidence in Criminal Cases as
Amended by the Revised Guidelines for
Continuous Trial of Criminal Cases
(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
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. (Part III, 13[d], A.M.
No. 15-06-10-SC, effective September 1,
2017)
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.
If the Motion for Leave is Granted
(1) 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.
(2) 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.
(3) 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.
(4) 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, 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
645
to evidence, such dismissal of the case is one on The ground is the same, that is,
the merits, which is equivalent to the acquittal of INSUFFICIENCY OF EVIDENCE.
the accused. Only available AFTER the
presentation of the evidence of
The court cannot review an order granting the the plaintiff or prosecution, as
demurrer to evidence and acquitting the accused the case may be.
on the ground of insufficiency of evidence
Court may either grant or deny
because to do so will place the accused in double
the Demurrer.
jeopardy. Double jeopardy attaches even if the
Differences More difficult to Easier to file
dismissal of the case was made on motion of the
file because the because the
accused if: (1) the dismissal is based on a
plaintiff is only prosecution is
demurrer to evidence filed by the accused after
required to required to
the prosecution has rested, which has the effect
present his prove the
of a judgment on the merits and operates as an
case by guilt of
acquittal; and, (2) if the dismissal is made also on
preponderance accused
motion of the accused because of the denial of
of evidence. beyond
his right to a speedy trial which is in effect a
reasonable
failure to prosecute (Bangayan Jr. vs. Bangayan,
doubt.
G.R. No. 172777, October 19, 2011).
If DENIED - If DENIED -
The proscription against double jeopardy only plaintiff distinguish
envisages appeals based on errors of judgment, presents whether there
but not errors of jurisdiction. Jurisprudence evidence had been
recognizes two grounds where double jeopardy prior leave of
will not attach, these are: (i) on the ground of court:
grave abuse of discretion amounting to lack or
excess of jurisdiction; and/or (ii) where there is (1) if with
denial of a party’s due process rights. In this case, leave,
the SC found that the State was not denied due accused may
process in the proceedings before the proceed with
Sandiganbayan. Neither was there any indication presentation
that the special prosecutor deliberately and of his
willfully failed to present available evidence or evidence;
that other evidence could be secured (People vs.
Sandiganbayan (Fourth Division), G.R. No. (2) if without
153304-05, February 7, 2012). leave,
accused can
CIVIL CRIMINAL no longer
DEMURRER DEMURRER present his
Similarities Demurrer is a kind of a Motion to evidence
Dismiss. If GRANTED - If GRANTED -
the case is accused is
It is NOT a prohibited pleading dismissed; acquitted;
under the Rules on Summary order of order of
Proceedings because (1) it is dismissal is a acquittal is
there to similarly expedite the FINAL order, NOT
proceedings and (2) it is not hence, appealable;
among those mentioned under appealable. otherwise, it
prohibited pleadings will be a
violation the

646
 right against (2) To reinforce and give teeth to the existing
double rules on criminal procedure and other special
jeopardy. rules prescribing periods for court action and
those which promote speedy disposition of
If plaintiff No appeal is criminal cases; and
appeals and the allowed, (3) To introduce innovations and best practices
appellate court EXCEPT in the for the benefit of the parties.
REVERSES - civil aspect.
defendant is no (Hun Hyung Hearing Days and Calendar Call
longer allowed Park vs. Choi,
to present G.R. No. Trial Monday to
evidence. 165496, Thursday, 8:30am
February 12, to 2pm
2007) Hearing on motions, Friday – morning
arraignment and pre-
Reopening trial, and promulgation
(a) It must be made before finality of judgment of judgement of
of conviction. decisions
(b) Its purpose is to avoid a miscarriage of Motion for inhibitions Immediately or
justice. based on Rule 137 within 2 calendar
(c) Proceedings must terminate within 30 days days from filing
from order granting it. Prohibited motions denied outright
(d) It may be made motu proprio by the judge before arraignment
or upon motion, with hearing in either case. without need of
(Rule 119, Sec. 24) comment
Motions
6. REVISED GUIDELINES ON (a) Motion for Inhibition. - Motions for inhibition
CONTINUOUS TRIAL based on grounds provided for under Rule
(A.M. NO. 15-06-10-SC) 137 shall be resolved immediately or within
two (2) calendar days from date of their
Applicability filing.

The Revised Guidelines for Continuous Trial of (b) Prohibited Motions. - Prohibited motions
Criminal Cases (Revised Guidelines) shall apply shall be denied outright before the
to: scheduled arraignment without need of
(1) All newly-filed criminal cases files before the: comment and/or opposition.
(a) First level courts
(b) Second level courts
The following motions are prohibited:
(c) Sandiganbayan
(d) Court of tax appeals
(a) Motion for Judicial Determination of
(2) Pending criminal cases with respect to the
Probable Cause
rest of the proceedings
• prohibited if it is already filed in
court
Note: Shall not apply to cases under Rules on
Summary Procedures
(b) Motion for Reinvestigation of the
prosecutors*
Objectives
(1) To protect and advance the constitutional
(c) Motion for Preliminary Investigation*
right of persons to a speedy disposition of
• Prohibited if filed after 5 days
their criminal cases;
reglementary period

647

(d) Motion to suspend criminal action based
on Prejudicial Question
• Prohibited if there was no civil
action filed
(e) Motion for postponement*
• Is a prohibited motion except on
the ground of force majeur, acts of
God, sickness, infirmary of the
witness or of the accused
• It should be filed in the clerk of
court with postponement fee
(f) Motion to Quash*
• Prohibited if not based on those
grounds provided by Rules of Court
(g) Motion for Bill of Particulars
• If it does not conform with Rule
116, Sec. 3, and should indicate
particular grounds which is not
clear and what are those particular
details that you want
(h) Motion to suspend arraignment and
plea
• Prohibited if not one of those
grounds provided by the rule
(c) Meritorious Motions. — Motions that allege
plausible grounds supported by relevant
documents and/or competent evidence,
except those that are already covered by the
Revised Guidelines, are meritorious motions,
such as:
(i) Motion to withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a
reinvestigation, reconsideration, and
review;
(ii) Motion to quash warrant of arrest;
(iii) Motion to suspend arraignment on the
ground of an unsound mental
condition under Sec.
(iv) 11(a), Rule 116;
(v) Motion to suspend proceedings on the
ground of a prejudicial question where
a civil case was filed prior to the
criminal case under Sec. 11(6), Rule
116;
(vi) Motion to quash information on the
grounds that the facts charged do not
constitute an offense, lack of
jurisdiction, extinction of criminal
action or liability, or double jeopardy
under Sec. 3, par. (a), (b), (g),and (i),
Rule 117;
(vii) Motion to discharge accused as a
state witness under Sec. 17, Rule 119;
(viii) Motion to quash search warrant under
Sec. 14, Rule 126 or motion to
suppress evidence; and
(ix) viii.
Motion to dismiss on the ground that
the criminal case is a Strategic Lawsuit
Against Public Participation (SLAPP)
under Rule 6
(x) of the Rules of Procedure for
Environmental Cases.
In case of a motion to discharge accused as
state witness under Sec. 17, Rule 119,
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
10 calendar days thereafter
(d) Motion for postponement. — A motion for
postponement is prohibited, 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 finished on the dates
previously agreed upon.
Arraignment and pre-trial
(a) Schedule of Arraignment and Pre-trial.
Action From No. of
Days
Arraignment from the date the 30 days
and Pre-trial court acquires
648
 jurisdiction (either (d) Arraignment Proper
by arrest or
voluntary (i) Plea Bargaining Except in Drug Cases.
surrender) over a — If the accused desires to enter a plea
non-detained of guilty to a lesser offense, plea
accused bargaining shall immediately proceed,
from date of the within 10 provided the private offended party in
court's receipt of calendar private crimes, or the arresting officer
the case for a days in victimless crimes, is present to give
detained accused his/her consent with the conformity of
the public prosecutor to the plea
The court must set the arraignment of the bargaining. Thereafter, judgment shall
accused in the commitment order, in the case of be immediately rendered in the same
detained accused, or in the order of approval of proceedings.
bail, in any other case. For this purpose, where (ii) Plea of Guilty to the Crime Charged in
the Executive Judge and Pairing Judges act on the Information. — If the accused
bail applications in cases assigned to other courts, pleads guilty to the crime charged in the
they shall coordinate with the courts to which the information, judgment shall be
cases are actually assigned for scheduling immediately rendered, except in those
purposes. cases involving capital punishment
(iii) Where No Plea Bargaining or Plea of
(b) Notice of Arraignment and Pre-Trial shall be Guilty Takes Place. — If the accused
sent to: does not enter a plea of guilty, whether
to a lesser offense or to the offense
(i) the accused, charged in the information, the court
(ii) his/her counsel, shall immediately proceed with the
(iii) private complainant or arraignment and the pretrial, in
(iv) complaining law enforcement agent, accordance with the succeeding
public prosecutor, and witnesses whose provisions on pre-trial.
names appear in the information for (iv) The schedule of the trial dates, for both
purposes of plea-bargaining, the prosecution and the accused, shall
arraignment and pre-trial. be continuous and within the periods
provided in the Regular Rules/Special
(c) Waiver of Reading of the Information. Rules. The trial dates may be shortened
depending on the number of witnesses
In multiple cases, the court, upon personal to be presented. In this regard, a
examination of the accused, may allow a waiver flowchart shall be prepared by the court
of the reading of the information upon the full which shall serve as the final schedule
understanding and express consent of the of hearings.
accused and his/her counsel, which consent shall
be expressly stated in both the minutes/ Trial
certificate of arraignment and the order of
arraignment. (a) The court shall encourage the accused and
the prosecution to avail of:
The court shall explain the waiver to the accused
in the language or dialect known to him/ her, and For the accused For the prosecution
ensure the accused's full understanding of the Secs. 12 and 13, Rule Sec. 15, Rule 119 on
consequences of the waiver before approving the 119 on the application the conditional
same. for examination of examination of
witness for accused

649
 before trial and how it witness for the
is made prosecution.
(b) Absence of counsel de parte.
In the absence of counsel de parte, the
hearing shall proceed upon appointment by
the court of a counsel de officio.
(c) Offer of evidence.
The offer of evidence, the comment/
objection thereto, and the court ruling shall
be made orally. A party is required to make
his/her oral offer of evidence on the same
day after the presentation of his/her last
witness, and the opposing party is required
to immediately interpose his/her oral
comment/objection thereto. Thereafter, the
court shall 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.
If the exhibits are not attached to the record,
the party making the offer must submit the
same during the offer of evidence in open
court.
(d) Demurrer to Evidence.
After the prosecution has rested its case, the
court shall inquire from the accused:
(i) if he/she desires to move for leave of court
to file a demurrer to evidence, or
(ii) to proceed with the presentation of his/her
evidence.
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, the court shall issue an order for the
accused to present and terminate his/her
evidence on the dates previously scheduled and
agreed upon, and to orally offer and rest his/her
case on the day his/her last witness is presented.
If despite the denial of the motion for leave, the
accused insists on ling the demurrer to evidence,
the previously scheduled dates for the accused to
present evidence shall be cancelled.
The demurrer to evidence shall be filed within a
non-extendible period of 10 calendar days from
the date leave of court is granted, and the
corresponding comment shall be led within a non-
extendible period of 10 calendar days counted
from date of receipt of the demurrer to evidence.
The demurrer shall be resolved by the court
within a non extendible period of 30 calendar
days from date of the ling of the comment or
lapse of the 10 day period to file the same.
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 evidenceofthe
accusedandthe commentorobjection 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.
(e) Presentation of Rebuttal and Sur-rebuttal
Evidence.
If 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 there is 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.
(f) One-day examination of witness rule.
650

The court shall strictly adhere to the rule that a
witness has to be fully examined in one day.
Memoranda
The submission of memoranda is discretionary on
the part of the court, which in no case shall
exceed 25 pages in length, single-spaced, on
legal size paper, using size 14 font.
The period to submit memoranda shall be non-
extendible and shall not suspend the running of
the period of promulgation of the decision; thus,
with or without memoranda, the promulgation
shall push through as scheduled.
Promulgation
(a) Schedule of promulgation.
The court shall announce in open court and
include in the order submitting the case for
decision, the date of the promulgation of its
decision which shall not be more than 90
calendar days from the date the case is
submitted for decision, except when the
case is covered by Special Rules and other
laws which provide for a shorter period.
(b) Resolution of motion for reconsideration of
judgment of conviction or motion for new
trial.
A motion for reconsideration of judgment of
conviction or motion for new trial under Rule
121 filed within the reglementary period of
15 days from promulgation shall be resolved
within a non-extendible period of10 calendar
days from the submission of the comment of
the prosecution. With or without comment,
the court shall resolve the motion within the
10-day period.
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,)
A judgment is the final ruling by a court of
competent jurisdiction regarding the rights or
other matters submitted to it in an action or
proceeding. (Macahilig v. Heirs of Gracia M.
Magalit, G.R. No. 141423, November 15, 2000) It
may be broadly defined as the decision or
sentence of the law given by a court of other
tribunal as the result of proceedings instituted
therein. (Legarda v. Court of Appeals, G.R. No.
94457, October 16, 1997; Tan, Criminal
Procedure: A Comprehensive Approach for the
Bench and the Bar, 2015 Edition, p. 1287)
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).
Requisites of a Judgment
(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. (Sec.
1, Rule 120,)
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.
Note: 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:
(1) Jurisdiction over the subject matter;
(2) Jurisdiction over the territory; and,
651
(3) Jurisdiction over the person of the accused.
(Antiporda, Jr. vs. Garchitorena, G.R. No.
133289, December 23, 1999)
Contents of Judgment (Rule 120, Sec. 2)
The purpose of the provision, Rule 120, Sec. 2 is
to inform the parties and the person reading the
decision on how it was reached by the court after
consideration of the evidence of the parties and
the relevant facts, of the opinion it has formed on
the issues, and of the applicable laws. The parties
must be assured from a reading of the decision
of the trial court that they were accorded their
rights to be heard by an impartial and responsible
judge. (People v. Lizada, G.R. Nos. 143468-71,
January 24, 2003)
A. Conviction
(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).
Sentences in criminal cases should not be in the
alternative. There is nothing in the law which
permits courts to impose sentences in thealterna
tive. The sentence should not only show the facts
upon which the defendant is found guilty but
should clearly indicate the particular crime
of which he was found guilty, as well as definitely
and positively and without doubt indicate the
actual actual penalty imposed. (U.S. v. Chong
Ting, G.R. No. 7259, September 2, 1912;
Abellana vs. People, G.R. No. 174654, August 17,
2011).
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 v. Manansala y
Alfaro, G.R. No. 233104, September 2, 2020, J.
Hernado citing People vs Evangelio, G.R. No.
181902, August 31, 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 court (Basilonia vs. Villaruz, G.R. Nos.
191370-71, August 10, 2015).
In case there is a conflict between the fallo
and the body of decision:
General Rule Exception
where there is a where the inevitable
conflict between the conclusion from the
dispositive portion or body of the decision is
the fallo and the body so clear as to show
of the decision, the that there was a
fallo controls mistake in the
dispositive portion,
the body of the
decision will prevail
(Hipos, Sr. vs. Bay, G.R. No. 133289, March 17,
2009).
652
It is settled that where there is a conflict criminal charge, but moral certainty is required as
between the dispositive part and the opinion of to every proposition of proof requisite to
the court contained in the text or body of the constitute the offense. (People v. Saragena, G.R.
decision, the former must prevail over the latter No. 210677, August 23, 2017)
on the theory that the dispositive portion is the
final order, while the opinion is merely a In case the judgment is of acquittal, it shall state
statement ordering nothing. whether the evidence of the prosecution
absolutely failed to prove the guilt of
While the body of the decision, order or the accused or merely failed to prove his guilt
resolution might create sonic ambiguity in the beyond reasonable doubt. In either case, the
manner the court's reasoning preponderates, it judgment shall determine if the act or
is the dispositive portion thereof that finally omission from which the civilliability might arise
invests rights upon the parties, sets conditions did not exist. It is essential to indicate whether
for the exercise of those rights, and imposes the act or omission from which the civil liability
the corresponding duties or obligations. (BBB v. might arise did not exist. Without such
People, G.R. No. 249307, August 27, 2020) declaration, it must be presumed that the
acquittal was due to reasonable doubt, and the
accused is civilly liable ex delicto. Thus, the
B. Acquittal
general rule shall apply: every person criminally
liable is also civilly liable. (Kane v. Roggenkamp,
A finding of not guilty based on the merits, that G.R. No. 214326, July 6, 2020)
is, the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable Judgment for Two or More Offenses
doubt, or a dismissal of the case after the
prosecution has rested its case upon motion of General Rule Exception
the accused on the ground that the evidence fails When two or more Defect is waived when
to show beyond reasonable doubt that the offenses are charged the accused fails to
accused is guilty. in a single information move for quashal
or complaint, the
A judgment of acquittal shall state: accused can file a
(1) whether or not the evidence of the motion to quash
prosecution absolutely failed to prove the (Section 3[f], Rule
guilt of the accused, or merely failed to 117)
prove his guilt beyond reasonable doubt;
and When two or more offenses are charged in a
(2) determine if the act or omission from which single complaint or information, and the accused
the civil liability might arise did not exist. fails to object to it before trial, the court may
(Sec 2, Rule 120) convict the accused of as many offenses as
charged and proved and impose on him the
Reasonable Doubt penalty for each offense, setting out separately
the findings of fact and law in each offense. (Rule
Proof beyond reasonable doubt does not require 120, Sec. 3)
absolute certainty; it only requires moral
certainty or the "degree of proof which produces Where the accused fails to object before trial,
conviction in an unprejudiced mind. Reasonable the court may: Exception
doubt is that doubt engendered by an Convict him of as If one of the offenses
investigation of the whole proof and an inability many offenses as has been a necessary
after such investigation to let the mind rest each there are charged and means for committing
upon the certainty of guilt. Absolute certainty of proved; the other offense and
guilt is not demanded by the law to convict a where both have been

653
 the result of a single thereof, unless the offense proved is included in
act. the offense charged (Malabanan vs.
Impose on him the Maximum duration of Sandiganbayan, G.R. No. 18632, August 2, 2017).
penalty for each the offense should be
offense, setting out in accordance with When Offense Includes or is Included in
separately the offense the “three-fold rule” Another
the findings of fact on the maximum
and law in each duration of the General Rule Exception
offense principal penalty, If what is proved by (3) Where facts
which means that the the prosecution is an supervened after
maximum duration of offense that is the filing of the
the sentence cannot included in the information, which
exceed three-fold the offense charged in the change the nature
length of time information, the of the offense.
corresponding to the accused may validly
most severe of the be convicted of the
penalties imposed offense proved
upon the accused. (Sec. 5, Rule 120)
(Art. 70, RPC)
Notes:
Judgment in case of variance between (1) An offense charged necessarily includes
allegation and proof another when some essential elements or
ingredients of the offense charged constitute
General Rule Exception the offense proved.
An accused can be (1) Where there is a (2) When the essential elements or ingredients
convicted of an variance between of the offense charged constitute or form
offense only when it is the offense part of those constituting the offense
both charged and charged in the proved, then one offense is included in the
proved. If it is not information or other.
proved although complaint and
charged, the accused what is proved; An accused cannot be convicted for the lesser
cannot be convicted and offense necessarily included in the crime charged
thereof. (2) The offense as if at the time of the filing of the information the
charged is lesser offense has already prescribed (Francisco
included or vs. CA, G.R. No. L-45674, May 30, 1983).
necessarily
includes the Sections 4 and 5, Rule 120 of the Rules of Court,
offense proved. can be applied by analogy in convicting the
(Sec. 4, Rule 120) appellant of the offenses charged, which are
included in the crimes proved. Under these
In case of such variance, the accused shall be provisions, an offense charged is necessarily
convicted of the offense proved which is included included in the offense proved when the essential
in the offense charged, or of the offense charged ingredients of the former constitute or form part
which is included in the offense proved. of those constituting the latter. At any rate, a
minor variance between the information and the
The accused can only be convicted of an offense evidence does not alter the nature of the offense,
which is both charged and proved. If it is not nor does it determine or qualify the crime or
charged, although proved, or if it is proved but penalty, so that even if a discrepancy exists, this
not charged, the accused cannot be convicted cannot be pleaded as a ground for acquittal. In
other words, his right to be informed of the

654
charges against him has not been violated
because where an accused is charged with a
specific crime, he is duly informed not only of
such specific crime but also of lesser crimes or
offenses included therein. (People v. Noque y
Gomez, G.R. No. 175319, January 15, 2010)
1. PROMULGATION OF JUDGMENT
Promulgation is the official proclamation or
announcement of judgment of the court. 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.
Who may promulgate the judgment
(1) Judge of the court in which it was rendered
(2) Clerk of the said court in the absence of the
judge who rendered judgment
(3) Executive Judge of the RTC having
jurisdiction over the place of confinement or
detention – if accused is confined or
detained and upon the request of the judge
who rendered judgment. (Rule 120, Sec. 6)
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:
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 and resolved by the appellate
court. (Rule 120, Sec. 6)
A final decision or resolution becomes binding
only after it is promulgated and not before. It is
an elementary doctrine that for a judgment to be
binding, it must be duly signed and promulgated
during the incumbency of the judge who penned
it. In this connection, the Court En Banc issued
the Resolution dated February 10, 1983
implementing B.P. 129 which merely requires
that the judge who pens the decision is still an
incumbent judge, that is, a judge of the same
court, albeit now assigned to a different branch,
at the time the decision is promulgated. In People
v. CFI of Quezon, Branch X, it was clarified that a
judge who died, resigned, retired, had been
dismissed, promoted to a higher court or
appointed to another office with inconsistent
functions, would no longer be considered an
incumbent member of the court and his decision
written thereafter would be invalid. Indeed, one
who is no longer a member of the court at the
time the final decision or resolution is signed and
promulgated cannot validly take part in that
decision or resolution. Much less could he be
the ponente of the decision or resolution. Also,
when a judge or a member of the collegiate court,
who had earlier signed or registered his vote, has
vacated his office at the time of the promulgation
of the decision or resolution, his vote is
automatically withdrawn or cancelled. (Payumo
v. Sandiganbayan, G.R. Nos. 151911 & 154535,
July 25, 2011)
Instances of Promulgation of Judgment in
Absentia
Instances when a judgment may be promulgated
even without the personal presence of the
accused:
(1) When the judgment is for a light offense, in
which case, the accused’s counsel/
representative may stand in for him;
(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. (Sec. 6, Rule
120)
There are two instances when judgment may be
promulgated even without the personal presence
of the accused:
(1) when the judgment is for a light offense, in
which case, the counsel for the accused or a
representative may stand for him; and
655
(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.
The evident purpose of this latter exception is to
afford the offended party the opportunity to
enforce the award of civil indemnity which could
not otherwise be effected if the decision cannot
be pronounced on account of the absence of the
accused. (Reyes v. Mangino, A.M. No. MTJ-05-
1575 (formerly A.M. OCA IPI No. 98-483-MTJ),
January 31, 2005)
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. (Sec. 6, Rule 120)
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. (ibid.)
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).
Except when the conviction is for a light offense,
in which case the judgment may be pronounced
in the presence of the counsel for the accused or
the latter’s representative, the accused is
required to be present at the scheduled date of
promulgation of judgment. Notice of the schedule
of promulgation shall be made to the accused
personally or through the bondsman or warden
and counsel.
The promulgation of judgment shall proceed even
in the absence of the accused despite notice. The
promulgation in absentia shall be made by
recording the judgment in the criminal docket and
serving a copy thereof to the accused at their last
known address or through the counsel. The court
shall also order the arrest of the accused if the
judgment is for conviction and the failure to
appear was without justifiable cause. (Jaylo vs.
Sandiganbayan [First Division], G.R. No. 183152-
54, January 21, 2015).
Elements for a Valid Promulgation in
Absentia
(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)
Note: Rendition comes first before promulgation.
Promulgation without rendition is null and void.
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
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. (Rule 120, Sec. 7)
When A Judgment Becomes Final
(1) When the period for perfecting an appeal
has lapsed.
(2) When the accused commences to serve
sentence.
(3) When the accused expressly waives in
writing his right to appeal.
656

(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
After a judgment has become final, it shall be
entered in accordance with Rule 36. (Rule 120,
Sec. 8)
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 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).
L. NEW TRIAL OR RECONSIDERATION
(RULE 121)
New trial is a proceeding whereby errors of law
or irregularities are expunged from the record, or
new evidence is introduced, or both steps are
taken. (People vs. Tamayo, G.R. No. L-2233 April
25, 1950)
New trial is a remedy that seeks to "temper the
severity of a judgment or prevent the failure of
justice." Thus, the Rules allows the courts to
grant a new trial when there are errors of law or
irregularities prejudicial to the substantial rights
of the accused committed during the trial, or
when there exists newly discovered evidence.
The grant or denial of a new trial is, generally
speaking, addressed to the sound discretion of
the court which cannot be interfered with unless
a clear abuse thereof is shown. (Ybiernas v.
Tanco-Gabaldon, G.R. No. 178925, June 1, 2011)
New trial is rehearing of a case already decided
but before the 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.
Period filing a motion for new trial or
consideration
A motion for new trial or reconsideration should
be filed at any time before the judgment of
conviction becomes final:
(a) On motion of the accused; or
(b) At the instance of the court but with the
consent of the accused (Sec. 1, Rule 121).
657
It should be within the reglementary period of 15
days from the promulgation of the judgment 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.
The award of new trial or taking of additional
evidence rests upon the sound discretion of the
court. Once the appeal is perfected, the court a
quo loses jurisdiction over it, except for the
purpose of correcting clerical errors. In such case,
the appellate court steps in. When new material
evidence has been discovered, the accused may
file a motion for new trial with the appellate court
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.
Grounds for New Trial
(a) That errors of law or irregularities prejudicial
to the substantial rights of the accused have
been committed during the trial;
(b) That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced
and admitted would probably change the
judgment. (Rule 121, Sec. 2)
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,
EXCEPT if the counsel’s mistake is so great and
serious that the client is prejudiced and denied
his day in court; or 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;
(3) That the evidence is material, not merely
cumulative/ corroborative/ impeaching; and,
(4) That the evidence is of such a weight that it
would probably change the judgment if
admitted. (Tadeja vs. People, G.R. No.
145336, February 20, 2013).
These standards, also known as the "Berry Rule,"
trace their origin to the 1851 case of Berry v.
State of Georgia. These guidelines have since
been followed by our courts in determining the
propriety of motions for new trial based on newly
discovered evidence.
It should be emphasized that the applicant for
new trial has the burden of showing that the new
evidence he seeks to present has complied with
the requisites to justify the holding of a new trial.
(Dinglasan, Jr. v. Court of Appeals, G.R. No.
145420, September 19, 2006)
The threshold question in resolving a motion for
new trial based on newly discovered evidence is
whether the [proffered] evidence is in fact a
"newly discovered evidence which could not have
been discovered by due diligence." The question
of whether evidence is newly discovered has two
aspects: a temporal one, i.e., when was the
evidence discovered, and a predictive one,
i.e., when should or could it have been
discovered. It is to the latter that the requirement
of due diligence has relevance. We have held that
in order that a particular piece of evidence may
658
be properly regarded as newly discovered to Civil Action Criminal Action
justify new trial, what is essential is not so much NEW TRIAL
the time when the evidence offered first sprang Fraud, accident, Errors of law or
into existence nor the time when it first came to mistake or excusable irregularities
the knowledge of the party now submitting it; neglect (FAME); committed during trial;
what is essential is that the offering party had Newly Discovered Newly-discovered
exercised reasonable diligence in seeking to Evidence. Evidence.
locate such evidence before or during trial but
RECONSIDERATION
had nonetheless failed to secure it.
Award of excessive Errors of law in the
damages; judgment;
The Rules do not give an exact definition of due
Insufficiency of Errors of fact in the
diligence, and whether the movant has exercised
evidence; judgment.
due diligence depends upon the particular
Decision or final order
circumstances of each case. Nonetheless, it has
is contrary to law.
been observed that the phrase is often equated
with "reasonable promptness to avoid prejudice Filed within the period Filed any time before
to the defendant." In other words, the concept of for taking an appeal judgment of conviction
due diligence has both a time component and becomes final
a good faith component. The movant for a new There may be partial When granted, the
trial must not only act in a timely fashion in grant original judgment is
gathering evidence in support of the motion; he always set aside or
must act reasonably and in good faith as well. vacated and a new
Due diligence contemplates that the defendant judgment rendered
acts reasonably and in good faith to obtain the
evidence, in light of the totality of the Requisites before a New Trial may be
circumstances and the facts known to him. Granted on the Ground of Newly-
(Ybiernas v. Tanco-Gabaldon, G.R. No. 178925, Discovered Evidence
June 1, 2011)

Grounds for Reconsideration (1) It must be in writing.

(2) It must be filed with the court.
(1) Errors of law in the judgment, which (3) It must state the grounds on which it is
require no further proceedings based.
(2) Errors of fact in the judgment, which (4) If the motion for new trial is based on newly
require no further proceedings (Sec. 3, discovered evidence, it must be supported
Rule 121) by the affidavits of the witness by whom
such evidence is expected to be given, or
Note: Both grounds require no further duly authenticated copies of documents
proceedings. which it is proposed to introduce in evidence.
(5) Notice of the motion for new trial or
reconsideration shall be given to the fiscal.
(Sec. 4, Rule 121)

While the rule requires that an affidavit of merits

be attached to support a motion for new trial
based on newly discovered evidence, yet the
defect of lack of it may be cured by testimony
under oath of the defendant at the hearing of the
motion (Paredes vs. Borja, G.R. No. L-15559,
November 29, 1961).

659
Effects of Granting a New Trial or MOTION FOR NEW MOTION FOR NEW
Reconsideration TRIAL IN TRIAL IN CIVIL
CRIMINAL CASES CASES
Ground Effect rights. (Rule 37, Sec.
1)
Errors of law All proceedings and evidence
or not affected by the The new and material Newly discovered
irregularities commission of such errors and evidence has been evidence, which the
committed irregularities shall stand, BUT discovered which the accused could not,
during the those affected thereby shall accused could not, with reasonable
trial be set aside and taken anew. with reasonable diligence, have
The court may, in the interest diligence, have discovered and
of justice, allow the discovered and produced at the trial,
introduction of additional produced at the trial and which if presented
evidence and which if would probably alter
Newly The evidence already taken introduced and the result.
discovered shall stand, and the newly admitted would
evidence discovered and such other probably change the
evidence as the court may, in judgment.
the interest of justice, allow to
be introduced, shall be taken
and considered together with
the evidence already in the Application of Neypes Doctrine in Criminal Cases
record.
(Sec. 6, Rule 121) In Neypes, the Court modified the rule in civil
cases on the counting of the 15-day period within
In all cases, when the court grants new trial or which to appeal. The Court categorically set
reconsideration, the original judgment shall be a fresh period of 15 days from a denial of a
set aside and a new judgment rendered motion for reconsideration within which to
accordingly. (Rule 121, Sec. 6). appeal.

Note: In trial courts, a second motion for The “fresh period rule”enunciated in Neypes also
reconsideration of a final order or judgment is not
applies to criminal actions, particularly to Sec. 6
allowed (Par. 4, Interim Rules and Guidelines).
This rule has been adopted in civil actions (Rule of Rule 122 (Yu vs. Judge Samson, G.R. No.
37, Sec. 5). In cases covered by the Rules on 170979, February 9, 2011).
Summary Procedure, a motion for
reconsideration is prohibited (Sec. 15 [c]). Note: The Neypes ruling shall not be applied
where no motion for new trial or motion for
MOTION FOR NEW MOTION FOR NEW reconsideration has been filed in which case the
TRIAL IN TRIAL IN CIVIL 15-day period shall run from notice of the
CRIMINAL CASES CASES judgment.
The errors of law or FAME, which ordinary
irregularities prudence could not The fresh period rule does not refer to the period
prejudicial to the have guarded against within which to appeal from the order denying the
substantial rights of and by reason of motion for new trial because the order is not
the accused have which such aggrieved appealable under Section 9, Rule 37. The non-
been committed party has probably appealability of the order of denial is also
during the trial. been impaired in his confirmed by Section 1(a), Rule 41, which
provides that no appeal may be taken from an

660
order denying a motion for new trial or a motion
for reconsideration.
The Neypes Doctrine applies to the following:
(1)Rule 40 governing appeals from MTC to RTC;
(2)Rule 41 governing appeals from the RTC;
(3)Rule 42 on petitions for review from the RTC
to the CA;
(4) Rule 43 on appeal from quasi-judicial
agencies to the CA; and,
(5) Rule 45 governing appeals by certiorari to
the SC.
M. APPEAL (RULE 122)
Appeal is a proceeding undertaken to have a
decision reconsidered by bringing it to a higher
court authority. The right to appeal is neither a
natural right nor is it a component of due process.
An appeal confers upon the appellate court
jurisdiction to examine the records, revise the
judgment appealed from, increase (or reduce)
the penalty, and cite the proper provision of the
penal law. The appellate court may, and generally
does, look into the entire records to ensure that
no fact of weight or substance has been
overlooked, misapprehended, or misapplied by
the trial court (Geroche vs. People, G.R. No.
179080, November 26, 2014).
Nature of the right to appeal merely
statutory
The Court has consistently held that the right to
appeal is a mere statutory privilege and may be
exercised only in the manner prescribed by, and
in accordance with, the provisions of
law. Under Administrative Order No. 07, as
amended, Gabutina only had 15 days from the
time he received the February 18, 2005 Order on
March 17, 2005 within which to file a Petition for
Review with the CA. In the second place, his six-
year delay was not justified by any compelling
reason; thus, his Petition for Review must fail.
Ironically, as respondent, Gabutina should have
pursued the procedural remedies available to
him. It was his own undoing that rendered his
cause a failure. (Gabutina v. Office of the
Ombudsman, G.R. No. 205572, October 7, 2020,
J. Hernando)
The right to appeal is not a natural right and is
not part of due process. It is merely a statutory
privilege, and may be exercised only in
accordance with the law. The party who seeks to
avail of the same must comply with the
requirements of the Rules. Failing to do so, the
right to appeal is lost. (M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 843)
It is a mere statutory privilege and may be
exercised only in the manner and in accordance
with the provisions of law.
Nature of appeal in Criminal Case
It is the unique nature of an appeal in a criminal
case that the appeal throws the whole case ope
n for review and it is the duty of the appellate co
urt to correct, cite, and appreciate errors in
the appealed judgment whether they are assign
ed or unassigned. (Rimando y Fernando v.
People, G.R. No. 229701, November 29, 2017)
Who May Appeal
Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy (Sec 1, Rule 122).
When an accused appeals from the sentence of
the trial court, he waived the constitutional
safeguard against double jeopardy and throws
the whole case open to the review of the
appellate court, which is then called upon to
render such judgment as law and justice dictate,
whether favorable or unfavorable to the
appellant. (Ko Bu Lin v. Court of Appeals, G.R.
No. L-57170, L-53663, November 19, 1982)
Changing of Theory on Appeal
661
A party cannot change his theory on appeal nor
raise in the appellate court any question of law or
fact that was not raised by the parties in their
pleadings.
Points of law, theories, issues and arguments not
adequately brought to the attention of the trial
court ordinarily will not be considered by a
reviewing court as they cannot be raised for the
first time on appeal because this would be
offensive to the basic rules of fair play, justice,
and due process (People vs. Mamaril, G.R. No.
171980, October 6, 2010)
Where to appeal
The appeal may be taken as follows:
(a) To the Regional Trial Court, in cases decided
by the Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court;
(b) To the Court of Appeals or to the Supreme
Court in the proper cases provided by law, in
cases decided by the Regional Trial Court;
and
(c) To the Supreme Court, in cases decided by
the Court of Appeals.
How Appeal is made
(1) When the judgment appealed from is that of
the MTC, appeal shall be to the RTC by
notice of appeal filed with the court which
rendered the judgment or final order
appealed from and by serving a copy thereof
to the adverse party. (Sec. 3[a], Rule 122)
(2) When the judgment appealed from is that of
the RTC in the exercise of its original
jurisdiction, the appeal shall be to the CA
notice of appeal. (Sec. 3[b], Rule 122)
(3) When the judgment appealed from is that of
the RTC in the exercise of its appellate
jurisdiction, the appeal shall be to the CA by
filing a petition for review under Rule 42.
(Sec. 3[c], Rule 122) When appeal is from
the decision of the Court of Appeals, the
appeal is generally made by filing a petition
for review on certiorari under Rule 45, Rules
of Court.
A petition for review raises only questions of law
sand should raise the errors of law of the CA and
not those of the RTC (Batistis vs. People, G.R. No.
181571, December 16, 2009).
Purported errors of judgment or those involving
misappreciation of evidence or errors of law,
which, as aforesaid, cannot be raised and be
reviewed in a Rule 65 petition. To repeat, a writ
of certiorari can only correct errors of jurisdiction
or those involving the commission of grave abuse
of discretion, not those which call for the
evaluation of evidence and factual findings.
(Villareal v. Aliga, G.R. No. 166995, January 13,
2014)
A petition for certiorari under Rule 65 of the Rule
should have been filed instead of herein petition
for review on certiorari under Rule 45. The
People may assail a judgment of acquittal only via
petition for certiorari under Rule 65 of the Rules.
If the petition, regardless of its nomenclature,
merely calls for an ordinary review of the findings
of the court a quo, the constitutional right of the
accused against double jeopardy would be
violated. (ibid)
The errors are not within the province of a
petition for review on certiorari under Rule 45,
since such errors are not questions of law but of
fact. (Roque vs. People, G.R. No. 193169, April 6,
2015)
An appeal must be taken within 15 days
from:
1. Promulgation of the judgment or
2. From notice of final order appealed from the
time a motion for new trial or reconsideration
is filed until notice of the order overruling the
motion has been served upon the accused or
his counsel (Sec 6, Rule 122, Rules of Court).
662
Withdrawal of appeal
RTC or MTC may allow the appellant to withdraw
his appeal, despite perfection, provided a motion
to withdraw is filed, and the motion is filed before
the RTC renders judgment on the appeal.
Effect of appeal by any of several accused
General rule Exception
An appeal taken by The appeal shall have
one or more of several an effect insofar as
accused shall not the judgment of the
affect those who did appellate court is
not appeal. favorable and
applicable to those
who did not take an
appeal. The benefits
of this rule extends to
all the accused,
regardless of whether
they appealed or not.
Review of all its aspects, including those not
raised by the parties. Considering that under
Section 11 (a), Rule 122 of the Revised Rules of
Criminal Procedure as above-quoted, a favorable
judgment, as in this case, shall benefit the co-
accused who did not appeal or those who
appealed from their judgments of conviction but
for one reason or another, the conviction became
final and executory, Benabaye's discharge for the
crime of Estafa is likewise applicable to Tupag.
Note that the dismissal of the Estafa charge
against Tupag is similarly without prejudice to the
filing of the appropriate criminal charge against
him as may be warranted under the
circumstances pertinent to him. (Benabaye v.
People, G.R. No. 203466, February 25, 2015)
Present rule is that an appeal taken by one or
more 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. Our pronouncements here with respect
to the insufficiency of the prosecution evidence to
convict appellants beyond reasonable doubt are
definitely favorable and applicable to accused
Joey Zafra. He should not therefore be treated as
the odd man out and should benefit from the
acquittal of his co-accused. In fact, under similar
conditions and on the same ratiocination, Section
11 (a), Rule 122 of the Rules of Court has
justified the extension of our judgment of
acquittal to the co-accused who failed to appeal
from the judgment of the trial court which we
subsequently reversed. (People v. Olivo y Along,
G.R. No. 177768, July 27, 2009)
Applicability of the Harmless Error Rule
Not all errors committed by the trial court are
grounds for reversal of the appealed judgment. If
the error is slight and insignificant, the error will
be discarded because it has not caused prejudice
to a party.
The harmless error rule obtains during review of
the things done by either the trial court or by any
of the parties themselves in the course of trial,
and any error thereby found does not affect the
substantial rights or even the merits of the case.
The Court has had occasions to apply the rule in
the correction of a misspelled name due to
clerical error; (Flight Attendants and Stewards
Association of the Philippines v. Philippine
Airlines, Inc., G.R. Nos. 178083 & A.M. No. 11-
10-1-SC (Resolution), [March 13, 2018])
Grounds for dismissal of appeal
(a) Appellant fails to file his brief within the
prescribed time, except where the appellant
is represented by a counsel de oficio.
(b) Appellant escapes from prison or
confinement, jumps bail, or flees to a foreign
country during the pendency of the appeal.
(Sec. 8, Rule 124).
(c) Failure to file the notice of appeal within the
prescribed period.
(d) Failure to pay the docket or other lawful
fees.
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
the Rules.
663
 (f) Absence of specific assignment of errors in RTC → Petition for Not
the appellant's brief, or of page references Sandiganbayan review on exceeding 6
to the record. → SC certiorari years
(g) Failure of the appellant to take the necessary Sandiganbayan on its original jurisdiction
steps for the correction or completion of the Sandiganbayan Petition for exceeding 6
record within the time limited by the court in → SC review on years but not
its order. certiorari LDR
(h) Failure of the appellant to comply with Notice of life and
orders, circulars, or directives of the court appeal reclusion
without justifiable cause. perpetua
(i) The fact that the order or judgment automatic death
appealed from is not appealable. review
(Sec. 1, Rule 50; Sec. 18, Rule 124 application of
certain rules of civil procedure in criminal cases;
M. De Leon, Remedial Law Reviewer-Primer, N. SEARCH AND SEIZURE (RULE 126)
2021 Edition, pp. 864-865)
Search warrant is an order in writing issued in the
Outline of modes of appeal under the Rules name of the People of the Philippines, signed by
of Court a judge and directed to a peace officer,
commanding him to search for personal property
Court being Mode of Penalty described therein and bring it before the court.
reviewed → Appeal (Rule 126, Sec. 1)
Appellate
Court A search warrant is not a criminal action. It is not
MTC → RTC Notice of Not a proceeding against a person but is solely for the
appeal exceeding 6 discovery and to get possession of personal
MTC → RTC → Petition for years property. It is a special and peculiar remedy,
CA review
drastic in nature, and made necessary because of
MTC → RTC → Petition for
public necessity.
CA → SC review on
certiorari
RTC on its original jurisdiction Search warrants are in the nature of criminal
RTC → CA Notice of exceeding 6 process and may be invoked only in furtherance
appeal years but not of public prosecutions. They are also in the nature
CA → SC Petition for LDR of an interlocutory character, because it leaves
review on something more to be done, the determination of
certiorari the guilt of the accused.
RTC → CA Notice of life and
appeal reclusion The power to issue a search warrants is
CA → SC Notice of perpetua exclusively vested with the trial judges in the
appeal exercise of their judicial functions (Skechers, USA
RTC → CA Notice of death vs. Inter Pacific Industrial Trading Corporation,
appeal G.R. No. 164321, November 30, 2006; Sec. 2, Art.
CA → SC automatic III, 1987 Constitution).
review
Sandiganbayan on its appellate jurisdiction Nature of Search Warrant
RTC → Notice of (1) Search warrants are in the nature of criminal
Sandiganbayan appeal process akin to a writ of discovery and may

664
 be invoked only in furtherance of public WARRANT OF SEARCH
prosecutions. ARREST WARRANT
(2) Search warrants have no relation to civil simply rely on the
process or trials. report of the fiscal.
(3) They are not available to individuals in the An arrest may be made Should be executed
course of civil proceedings. on any day and at any only on daytime
(4) It is not for the maintenance of any mere time of the day or unless otherwise
private right. night. (Rule 113, Sec. stated in the warrant
(5) It is interlocutory in character – it leaves 6) itself. (Rule 126,
something more to be done, the Sec. 9)
determination of the guilt of the accused Imprescriptible; until Only good for 10
(Riano, Criminal Procedure, 2016 Edition, p. and unless days; whether
253-254). implemented. implemented or not,
the search warrant
Constitutional requirements in the dies on the 11th
issuance of search warrant day.
No search warrant or warrant of arrest shall issue As long as the person is The things to be
except: identifiable, you can seized and the
already implement the person to be
• There must be probable cause in connection
warrant lawfully. searched must be
with one specific offense
specifically
• The presence of probable cause is to be
identified. (Rule
determined by the judge personally
126, Sec. 4)
• The determination must be made after an
examination under oath of the complainant
and the witnesses
• The warrant must specifically describe the
place to be searched and the things to be Where Filed
seized (must be anywhere in the Phils.) (Sec. (1) Any court within whose territorial jurisdiction
2, Art. III, 1987 Constitution) a crime was committed.
(2) For compelling reasons stated in the
application, any court within the judicial
Distinguished from Warrant of Arrest
region where the crime was committed if the
place of the commission of the crime is
WARRANT OF SEARCH known, or any court within the judicial region
ARREST WARRANT where the warrant shall be enforced.
Preliminary examination leads to its issuance (3) If the criminal action has already been filed,
or non-issuance. the application shall only be made in the
Both rendered by the judge. court where the criminal action is
For the purpose of For the purpose of pending. (Rule 126, Sec. 2)
taking a person into the taking personal
custody of the law. property into the If the accused committed a continuing offense, a
(Rule 113, Sec. 1) custody of the law. search warrant may be applied for in any court
(Rule 126, Sec. 1) where any element of the alleged offense was
The judge is required The court must committed. (Petron Corp. v. Yao, Sr., G.R. No.
to conduct an always conduct 243328, March 18, 2021)
investigation or searching questions
examination but the upon the
court may dispense complainant and his
with the personal witnesses. (Rule
examination and may 126, Sec. 5)

665
Search warrant involving heinous crimes
and others
In cases involving:
(1) Dangerous drugs
(2) Illegal possession of firearms
(3) Illegal gambling
(4) Heinous crimes
(5) Anti-money laundering
(6) Violation of Intellectual Property Rights
(7) Tariff and taxes of the customs code
The following are authorized to act on all
applications for search warrants involving any of
the above crimes:
Executive and Vice Executive Judges of RTCs of
Manila and Quezon City filed by:
(a) NBI
(b) PNP
(c) Presidential Anti-Organized Crime Task
Force (PAOC-TF)
(d) Reaction Against Crime Task Force
(REACT-TF)
The applications shall be personally endorsed by
the Heads of said agencies for the search of
places to be particularly described therein, and
the seizure of property or things prescribed in the
rules of Court. (A.M. No. 99-10-09-SC)
The warrants may be served in places outside the
territorial jurisdiction of said courts.
The case against petitioner involved a violation of
the Dangerous Drugs Law. Pursuant to AM 99-10-
09-SC, the application for search warrant may be
filed by the NBI in the City of Manila and the
warrant may be served outside of Manila. Also
there is nothing in the rule that prohibits the head
of the NBI from delegating their ministerial duty
of endorsing the application to their assistant
heads. (Spouses Marimla v. People, G.R. No.
158467, October 16, 2009)
Requisites for Issuing Search Warrant
(1) The warrant must be issued upon probable
cause;
(2) Probable cause must be determined
personally by the judge;
(3) The judge must have personally examined,
under oath and affirmation, and in the form
of searching questions and answers, the
applicant and his witnesses;
(4) The warrant must particularly describe the
place to be searched and the things to be
seized which may be anywhere in the
Philippines; and,
(5) The warrant must be issued for one specific
purpose or in connection with one specific
offense. (Rule 126, Sec. 24
(1) Probable Cause
It refers to such fact and circumstances which
would lead a reasonably discreet and prudent
man to believe that the offense charged has been
committed and that the objects sought in
connection with the offense are in the place
sought to be searched (Kho v. Lanzanas, G.R. No.
150877, May 4, 2006)
Probable cause, as a condition for the issuance of
a search warrant, is such reasons supported by
facts and circumstances as will warrant a cautious
man to believe that his action and the means
taken in prosecuting it are legally just and proper.
It requires facts and circumstances that would
lead a reasonably prudent man to believe that an
offense has been committed and that the objects
sought in connection with that offense are in the
place to be searched. (HPS Software and
Communication Corp. v. Philippine Long Distance
Telephone Co., G.R. Nos. 170217 & 170694,
December 10, 2012)
Basis of Probable Cause
The basis must be the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay.
666
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
(a) 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);
(b) 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).
(2) Probable Cause determined personally by the
judge
General Probable cause must be
Rule 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).
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)
(3) Personal Examination by the Judge of the
Applicant and His Witnesses
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;
(c) On facts personally known to them; and,
(d) Attach to the record their sworn statements,
together with the affidavits submitted (Sec.
5, Rule 126).
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
667
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.
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.
(4) 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).
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)
Issuance and Form of Search Warrant
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. (Sec. 6, Rule 126)
Knock and Announce Principle
General rule:
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, 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).
Exception:
(a) The person whose premises or who is
entitled to the possession thereof, refuses,
upon demand, to open it;
(b) When such person in the premises already
knew of the identity of the officers and of
their authority;
(c) When the officers are justified, in the honest
belief that there is an imminent peril to life
and limb; and,
(d) 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
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
668
aiding him when unlawfully detained
therein. (Sec. 7, Rule 126)
Search of House, Room, or Premise to be
Made in Presence of Two Witnesses
No search of a house, room, or any other
premises shall be made except in the presence
of:
(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. (Sec. 8, Rule 126,)
Personal Property to be seized.
Personal property to be seized. — A search
warrant may be issued for the search and seizure
of personal property:
(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.
Personal property" in the foregoing context
actually refers to the thing's mobility, and not to
its capacity to be owned or alienated by a
particular person. Article 416 of the Civil Code,
which Laud himself cites, 55 states that in
general, all things which can be transported from
place to place are deemed to be personal
property. Considering that human remains can
generally be transported from place to place, and
considering further that they qualify under the
phrase "subject of the offense" given that they
prove the crime's corpus delicti it follows that
they may be valid subjects of a search warrant
under the above-cited criminal procedure
provision. (Laud v. People, G.R. No. 199032,
November 19, 2014)
Note: The personal property under search
warrant is not any kind of property.
Time of Making Search(Rule 126, Sec. 9)
General When the affidavit asserts that
Rule 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.
Exceptions: When the affidavit asserts that
the property is on the person or
in Tthe 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.
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.
Manner of Making the search
The search shall be made in the presence pf the
lawful occupant of the house, room or any other
premises, or any member of the lawful occupant’s
family. In the absence of the latter, the search
shall be made in the presence of two (2)
witnesses of sufficient age and discretion residing
in the same locality. (Sec. 8, Rule 126, Rules of
Court)
Validity of Search Warrant (, Sec. 10,Rule
126)
A search warrant shall be valid for ten (10) days
from its date. Thereafter, it shall be void.
General Rule Exceptions:
A search warrant When the search
can be used only conducted on one day was
once, thereafter, interrupted, in which case,
it becomes the same may be continued
functus oficio under the same warrant
the following day if not
beyond the 10-day period
(UyKheytin vs. Villareal, G.R. No. 16009,
September 21, 1920).
669

Receipt for the Property Seized
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
Sec. 12, Rule 126)
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.
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 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).

If not, the judge If Made, the judge Exceptions to Search Warrant Requirements:
shall: shall
(1) Summon the 1. Ascertain whether (1) When the owner of the premises waives his
person to whom Section 11 of this Rule right against such incursion;
the warrant was on Receipt for the (2) When the search is incidental to a lawful
issued; and, Property Seized has arrest;
(2) Require him to been complied with; (3) When it is made on vessels and aircraft, such
explain why no and, as for violation of customs laws;
return was 2. Require that the (4) When it is made on automobiles or motor
made. property seized be vehicles generally for the purpose of
delivered to him. preventing violations of smuggling or
immigration laws;
(5) When it involves prohibited articles in plain
The return on the search warrant shall be filed view; or,
and kept by the custodian of the log book on (6) In cases of inspection of buildings and other
search warrants who shall enter therein the date premises for the enforcement of fire,
of the return, the result, and other actions of the sanitary and building regulations (People vs.
judge. Rodriguez, G.R. No. 95902, February 4,
1992).
A violation of this rule shall constitute contempt
Search Incident to Lawful Arrest
of court.

670
A person lawfully arrested may, without search
warrant, be searched:
1. For dangerous weapons; or,
2. Anything which may have been used or which
may constitute as proof of the commission of
an offense. (Sec. 13, Rule 126,)
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 as evidence at the trial of the case (Malacat
vs CA, G.R. No. 123595, December 12, 1997).
(1) Consented Search
A consented search occurs when a person gives
a law enforcement agent permission to search in
areas in wich such person has a reasonable
expectation of privacy.
Elements of a Valid Consented Search
To constitute a waiver, it must appear that:
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.
(2) Search 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 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)
(3) Check 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).
671
 guilt or innocence of the accused." (Miclat Jr vs.
(4) Plain View Doctrine People, G.R. No. 176077, August 31, 2011)
Under this doctrine, objects within the sight of an
officer who has the right to be in a position to Note: The Tariff and Customs Code does not
have that view are subject to seizure and may be require a search warrant for purposes of
presented as evidence (i.e. objects open to the enforcing customs and tariff laws.
eye and hand).
Immediately Apparent Requirement
Elements:
(1) A prior valid intrusion based on the valid This requirement means that the incriminating
warrantless arrest in which the police are
nature of the evidence becomes apparent if the
legally present in the pursuit of their official
duties; officer, at the moment of seizure, had probable
(2) The evidence was inadvertently discovered cuase to connect it to a crime without the benefit
by the police who have the right to be where of an unlawful search or seizure. To be
they are; and, immediately apparent, the rule does not require
(3) The evidence must be immediately an unduly high degree of certainty as to the
apparent. incriminating character of the evidence. IT
requires merely that the seizure be presumptively
Plain view justified mere seizure of evidence
without further search (Rosario vs. People, G.R. reasonable assuming that there isprobable cause
No. 142295, May 31, 2001). to associate the property with criminal activity.
(United Laboratories vs. isip, G.R. No. 163858,
Inadvertence Requirement June 28, 2005)
Means that the officer must not have known in
advance of the location of the evidence and (5) Stop and Frisk Situation
discovery is not anticipated.(United Laboratories
vs. isip, G.R. No. 163858, June 28, 2005)
(a) Its object is either to determine the
identity of a suspicious individual or to
The law enforcement officer must lawfully make
maintain the status quo momentarily
an initial intrusion or properly be in a position
while the police officer seeks to obtain
from which he can particularly view the area. In
more information. The officer may
the course of such lawful intrusion, he came
search the outer clothing of the person in
inadvertently across a piece of evidence
an attempt to discover weapons which
incriminating the accused. The object must be
might be used to assault him. (Terry vs.
open to eye and hand and its discovery
Ohio, 392 U.S. 1, Manalili vs. CA, GR No.
inadvertent [Under Section 21, paragraphs 1 and
113447, October 9, 1997).
2, Article II of RA No. 9165; and the implementing
provision of Section 21 (a), Article II of the
The terry doctrine is of two parts:
Implementing Rules and Regulations (IRR) of RA
No. 9165].
Stop – A valid stop by an officer requires that he
has a reasonable and articulate belief that
The failure of the law enforcers to comply strictly
criminal activity has happened or is about to
with the rule is not fatal. It does not render
happen.
petitioner’s arrest illegal nor the evidence
Frisk – Must be done because of a reasonable
adduced against him inadmissible. What is
belief that the person stopped is in possession of
essential is "the preservation of the integrity and
a weapon that will pose a danger to the officer
the evidentiary value of the seized items, as the
and others. The frisk must be a mere pat dow
same would be utilized in the determination of the

672
outside the person’s outer garment and not
unreasonable intrusive.
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)
(b) What is, therefore, essential is that a
genuine reason must exist, in light of the
police 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).
(6) Enforcement 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)
Remedies Against an Unlawful Search and
Seizure (Sec. 14, Rule 126)
(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.
Effect of an Illegal Search and Seizure;
Fruit of the Poisonous Tree Doctrine
If the evidence is obtained through an unlawful
search, the seized item is inadmissible in evidence
against the accused.(Villanueva vs. People, G.R.
No. 199042, November 17, 2014)
Any Evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding. (Sec 3 (2), Article
III, 1987 Constitution)
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)
673
O. PROVISIONAL REMEDIES IN
CRIMINAL CASES (RULE 127)
Availability of provisional remedies
The requisites and procedure for availing of
provisional remedies shall be the same as those
for civil cases. (Sec. 1, Rule 127)
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)
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
(a) Attachment;
(b) Injunction;
(c) Receivership;
(d) Delivery of personal property;
(e) Support pendente lite
Attachment (Rule 127, Sec. 2)
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:
(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.
P. THE RULE ON CYBERCRIME
WARRANTS (SECTION 2 OF A.M. NO.
17-11-03-SC ONLY)
Scope and Applicability
This 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, as provided under Republic Act
No. (RA) 10175, otherwise known as the
"Cybercrime Prevention Act of 2012."
Venue of Criminal Actions
The criminal actions for violation of Section 4
(Cybercrime offenses) and/or Section 5 (Other
offenses), Chapter II of RA 10175, shall be filed:
(1) before the designated cybercrime court of
the province or city where the offense or
(2) any of its elements is committed, or
(3) where any part of the computer system used
is situated, or
(4) where any of the damage caused to a
natural or juridical person took place
Provided, that 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
674
use of ICT, as provided under Section 6, Chapter
II of RA 10175, shall be filed before the regular
or other specialized regional trial courts, as the
case may be. (Section 2.1, A.M. NO. 17-11-03-
SC)
Where to File an Application for a Warrant.
An application for a warrant under this Rule
concerning a violation of Section 4 (Cybercrime
Offenses) and/or Section 5 (Other Offenses),
Chapter II of RA 10175 shall be filed by the law
enforcement authorities:
(1) before any of the designated cybercrime
courts of the province or the city where the
offense or any of its elements has been
committed, is being committed, or is about to
be committed, or
(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.
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. (Section 2.2, A.M. NO. 17-11-03-SC)
On the other hand, an application for a warrant
under this Rule for violation of Section 6, Chapter
II of RA 10175 (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) shall be filed by the law
enforcement authorities with the regular or other
specialized regional trial courts, as the case may
be, within its territorial jurisdiction in the places
above-described. (ibid)
Incidents Related to the Warrant When a
Criminal Action is Instituted.
Once 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, which
procedure is set forth in Section 7.2 of this
Rule. (Section 2.3, A.M. NO. 17-11-03-SC)
Examination of Applicant and Record
Before issuing a warrant, the judge must:
personally examine in the form of searching
questions and answers, in writing and under oath,
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. (Section 2.4,
A.M. NO. 17-11-03-SC)
Effective Period of Warrants.
Any warrant issued under this Rule shall only be
effective for the length of time as determined by
the court, which shall not exceed a period of ten
(10) days from its issuance. 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. (Section 2.5, A.M. NO. 17-11-
03-SC)
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 as prescribed hereunder, 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.
(Section 2.6, A.M. NO. 17-11-03-SC)
Obstruction of Justice for Non-Compliance;
Where to File
675
Pursuant to Section 20, Chapter IV of RA 10175,
failure to comply with the provisions of Chapter
IV, specifically the orders from law enforcement
authorities, shall be punished as a violation of
Presidential Decree No. 1829, entitled “Penalizing
Obstruction Of Apprehension And Prosecution Of
Criminal Offenders.”
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. (Section 2.7,
A.M. NO. 17-11-03-SC)
Extraterritorial Service of Warrants and
Other Court Processes.
For persons or service providers situated outside
of the Philippines, 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. (Section 2.8
A.M. NO. 17-11-03-SC)
VIII. EVIDENCE
A. GENERAL CONCEPTS
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, Rules of Court).
To be considered evidence, the same must be
“sanctioned” or allowed by the Rules of Court. It
is not evidence, if it is excluded by law or by the
Rules, even if it proves the existence or non-
existence of a fact in issue (Riano, Evidence [The
Bar Lecture Series], 2022 Ed., p. 1).
“Truth” is not necessarily the actual truth, but one
referred to as the judicial or legal truth (Riano,
Evidence [The Bar Lecture Series], 2022 Ed., p.
2).
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 (People v. Moner y Adam,
G.R. No. 202206, March 5, 2018; Bustos vs.
Lucero, G.R. No. L–2068, October 20, 1948).
SCOPE OF THE RULES ON EVIDENCE
PRINCIPLE OF UNIFORMITY:
General The rules of evidence shall be
Rule 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 (ROC):
(1) Election cases;
(2) Land registration cases;
(3) Cadastral cases;
(4) Naturalization proceedings;
(5) Insolvency proceedings;
and
(6) Other cases not herein
provided for by law.
Exception These rules may apply to the
to the aforementioned proceedings by
Exception analogy or in suppletory
character and whenever
practicable and convenient
(Rule 1, Sec. 4, Rules of Court).
The rule on formal offer of evidence (Rule 132,
Sec. 34) is clearly not applicable to a petition for
naturalization; decisions in naturalization
proceedings are not covered by the rule on res
judicata.
The Parol Evidence Rule, like other rules of
evidence, should not be strictly applied in labor
cases. In labor cases pending before the
Commission or the Labor Arbiter, the rules of
evidence prevailing in courts of law or equity are
not controlling. Rules of procedure and evidence
are not applied in a very rigid and technical sense
in labor cases (Cirtek Employees Labor Union-
676
Federation of Free Workers vs. Cirtek Electronics,
Inc., G.R. No. 190515, June 6, 2011).
The rules on evidence, being components of the
Rules of Court, apply only to judicial proceedings
(RIANO, Evidence [The Bar Lecture Series], 2022
Ed., p. 3).
The rules on evidence may be waived. When an
otherwise objectionable evidence is not objected
to, the evidence becomes admissible because of
waiver (Riano, Evidence [The Bar Lecture Series],
2022 Ed., p. 20).
Evidence is required only when the court has to
resolve a question of fact. Where no factual issue
exists in a case, there is no need to present
evidence because where the case presents a
question of law, such question is resolved by the
mere application of the relevant statutes or rules
of this jurisdiction to which no evidence is
required (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 7).
Factual findings of administrative bodies charged
with their specific field of expertise, are afforded
great weight by the courts, and in the absence of
substantial showing that such findings were made
from an erroneous estimation of the evidence
presented, they are conclusive, and in the interest
of stability of the governmental structure, should
not be disturbed (Sugar Regulatory
Administration vs. Encarnacion B. Tormon, G.R.
No. 195640, December 4, 2012).

Classification of Evidence such that the

Documentary Writings or any factfinder must
material offered draw an
as proof of their inference or
contents reason from
Object/Real Evidence which circumstantial
directly evidence
As to its addressed to the (Bacerra y
nature or court’s senses Tabones v.
form Testimonial Consist of the People, G.R. No.
statement of a 204544, July 3,
witness offered 2017)
to the court. Prima Facie Evidence which
Maybe oral/live by itself is
or by judicial sufficient to
affidavit As to prove the fact
Direct Evidence which establi- but which may
proves a shing of a be rebutted by
challenged fact disputed contrary
As to its without drawing fact evidence
relation to any inference Conclusive One which may
fact in (Bacerra y not be rebutted
issue Tabones v. or contradicted
People, G.R. No. Corroborative Additional
As to
204544, July 3, evidence of a
simillarity
2017) different
of charac-
Circumstantial Indirectly proves character to the
ter
/ Indirect a fact in issue, same point

677
 Cumulative Evidence of the Civil Criminal
same kind and this requirement
to the same necessitates the
state of facts acquittal of the
Positive Evidence is petitioners or the
positive when accused based on
the witness reasonable
affirms that a doubt. (CICL XXX
As to fact did or did v. People, G.R.
affirmation not occur No. 230964,
of witness Negative When witness March 2, 2022, J.
states he did not Hernando)
see or know of Offer of Not an By the accused –
the occurrence Compromise admission may be received
of a fact of any in evidence as
Admissible Evidence that is liability implied admission
relevant and of guilt (except
competent for quasi-
Material One that is offenses or those
directed to allowed by law to
prove a fact in compromised
issue as Presumption Not Accused is
As to
determined by of applicable pressumed to be
quality
the rules on innocence innocent
susbtantive law Presence of Not Applicable – but
and pleadings Circumstan- applicable such evidence
(Tan, Evidence, tial Evidence must comply with
A Compendium Sec. 4, Rule 133
for the Bar, Concept of Does not Confession is a
2019 Ed., p. 5) confession apply; use declaration of an
(Riguera, Primer-Reviewer on Remedial Law, the more accused
2022 Ed., pp. 661-663) appropriate acknowledging
term his guilt of the
offense charged
Evidence in civil cases vs evidence in
Evidence of Admissible The prosecution
criminal cases
moral as long as is not allowed to
character it is prove the bad
Civil Criminal pertinent moral character
Quantum of Preponde- Beyond to the issue of the accused
Proof rance of reasonable doubt of even if it is
evidence character pertinent to the
The quantum involved in moral trait
of proof required the case involved. It can
in criminal cases, (Rule 130, only do so in
such is proof Sec. 54[b], rebuttal (Rule
beyond ROC) 130, Sec. 54[a],
reasonable ROC)
doubt. A Privileged Applicable Not applicable
significant communi-
departure from cation rule

678
 Civil Criminal Factum Probans Factum Probandum
on patient- The fact to be The probative or
physician proved; the fact evidentiary fact
relationship
which is in issue and tending to prove the
Rule on Not Applicable
to which the evidence fact in issue.
Admission applicable
Rule on Not Applicable is directed.
extrajudicial applicable Existent Hypothetical – what
confession one party affirms and
(M. De Leon, Remedial Law Reviewer-Primer, the other denies
2021 Edition, p. 911; Riano, Evidence [The Bar In civil cases:
Lecture Series], 2022 Ed., pp. 10-11) elements of the cause
of action
1. PROOF VS. EVIDENCE
In criminal cases:
Evidence Proof elements of the crime
It is the medium or It is the effect and (Regalado, Remedial Law Compendium Vol. 2,
means of proving or result of evidence. It 2008 Ed. p. 698-699)
disproving a fact. It is is the probative effect
the medium of proof. of evidence and is the One must adduce during trial the factum probans
(Riano, Evidence [The conviction or or the evidentiary facts by which the factum
Bar Lecture Series], persuasion of the probandum or the ultimate fact can be
2022 Ed., p. 11). mind resulting from established. (Lagman v. Pimentel III, G.R. Nos.
the consideration of 235935, 236061, 236145 & 236155, February 6,
the evidence (Riano, 2018 citing Dela Llana vs. Biong, G.R. No.
Evidence [The Bar 182356, December 4, 2013)
Lecture Series], 2022
Ed., p. 11). 2. BURDEN OF PROOF AND BURDEN OF
The means to an end The end result EVIDENCE

Note: Evidence is a relative term; it signifies a Burden of Proof is the duty of a party to present
relation between facts: the factum probans and evidence on the facts in issue necessary to
factum probandum (Wigmore, Principles of establish his or her claim or defense by the
Judicial Proof, p. 5, as stated in Riano, Evidence amount of evidence required by law. Burden of
[The Bar Lecture Series], 2022 Ed., p. 11). proof never shifts (Sec. 1, Rule 131, Rules of
Court)
Factum Probans vs Factum Probandum
Burden of Evidence is the duty of a party to
Factum Probans Factum Probandum present evidence sufficient to establish or rebut a
Intermediate or Ultimate Facts fact in issue to establish a prima facie case.
Evidentiary Facts Burden of Evidence may shift from one party to
The fact by which the The fact or proposition the other in the course of the proceedings,
factum probandum is to be established. depending on the exigencies of the case (Sec. 1,
to be established. Rule 131, Rules of Court)

679

Burden of Proof vs Burden of Evidence
Burden of Proof
(Onus Probandi /
Burden of Evidence
Risk Of Non-
Persuasion)
Burden of proof is the Burden of evidence is
duty of a party to the duty of a party to
present evidence on present evidence
the facts in issue sufficient to establish
necessary to establish or rebut a fact in issue
his or her claim or to establish a prima
defense by the facie case (Rule 131,
amount of evidence Sec. 1).
required by law (Rule
131, Sec. 1).
Burden of proof never Burden of evidence
shifts (Rule 131, Sec. may shift from one
1) and remains party to the other in
throughout the entire the course of the
case exactly where the proceedings,
pleadings originally depending on the
placed it. exigencies of the case
(Rule 131, Sec. 1).
Generally determined Generally determined
by the pleadings filed by the developments
by the parties in of the trial, or by the
litigation. provisions of
substantive law or
procedural rules,
which may relieve the
party from presenting
evidence on the facts
alleged.
burden of evidencr shifts from party depending
upon the exigencies of the case (Ante v.
University of the Philippines Student Disciplinary
Tribunal, G.R. No. 227911, March 14, 2022; J.
Hernando)
Burden of Proof, Upon Whom it Rests
Criminal Cases Civil Cases
Plaintiff has the It bears stressing
burden of proof to that the prosecution
show the truth of has the burden of
his allegations if the proving compliance
defendant raises a with the requirements.
negative defense. (People v. Arellaga y
Sabado, G.R. No.
Defendant has the 231796, August 24,
burden of proof if he 2020, J. Hernando)
raises an affirmative
defense on the And has the burden of
complaint of the proving guilt of the
plaintiff. accused because of the
presumption of
innocence (Macayan,
Jr., vs. People, G.R. No.
175842, March 18,
2015).
Note: In Burden of Proof, the plaintiff is always
compelled to allege affirmative assertions in his
complaint. When he alleges a cause of action, he
will be forced to allege that he has a right and
that such right was violated by the other party.
Thus, he has the duty to prove the existence of
this affirmative allegation.

Burden of proof is a basic principle that whoever
alleges a fact has the burden of proving it.
Meanwhile, burden of evidence is "that logical
necessity which rests on a party at any particular
time during the trial to create a prima facie case
in his favor or tooverthrow one when created
against him." Similarly, it is elementary that the
If the defendant files his answer and sets up
purely a negative defense and no evidence is
presented by both sides, it is the defendant who
would win the case since the plaintiff has not
presented the quantum of evidence required by
law.

680
On the other hand, when the defendant in his constitutional presumption of innocence tilts the
answer sets up an affirmative defense, if there is scales in favor of the accused. (Ruego v. People,
no evidence presented by both sides, it is the G.R. No. 226745, May 3, 2021)
defendant who will lose the case.
Equiponderance of Evidence in Criminal
Test for determining where the burden of and Civil Cases
proof lies
Criminal Cases Civil Cases
The test for determining where the burden of The equipoise rule When the scale of
proof lies is to ask which party to an action or suit provides that where justice shall stand on
will lose the case if he offers no evidence the evidence of the equipoise and nothing
competent to show the facts averred as the basis parties in a criminal in the evidence
for the relief he seeks to obtain (Aznar Brothers case is evenly inclines a conclusion
Realty Company vs. Laurencio Aying, G.R. No. balanced, the to one side or the
144773, May 16, 2005). constitutional other, the court will
presumption of find for the defendant
3. EQUIPOISE RULE innocence should tilt (Republic vs. Mupas,
the scales in favor of G.R. No. 181892,
The doctrine refers to a situation where the the accused (People September 8, 2015).
evidence of the parties are evenly balanced or v. Bautista, G.R. No.
there is doubt on which side the evidence 218582, September 3,
preponderates. In such case the decision should 2020)
be against the party with the burden of proof
(Marubeni Corp. vs. Lirag, G.R. No. 130998, Aug. B. ADMISSIBILITY OF EVIDENCE
10, 2001).
Admissibility of evidence refers to the
Under this rule, where the evidence on an issue question of whether or not the circumstance (or
of fact is in equipoise or there is doubt on which evidence) is to be considered at all. On the other
side the evidence preponderates, the party hand, the probative value of evidence refers to
having the burden of proof loses. The equipose the question of whether or not it proves an issue
rule finds application if the inculpatory facts and (Mancol, Jr. vs. Development Bank of the
circumstances are capable of two or more Philippines, G.R. No. 204289, November 22,
explanations, one of which is consistent with the 2017)
innocence of the accused and the other
consistent with his guilt, for then the evidence Whether a document is public or private is
does not fulfill the test of moral certainty, and relevant in determining its admisibility as
does not suffice to produce a conviction. Briefly evidence. Public documents are admissible
stated, the needed quantum of proof to convict in evidence even without further proof of their
the accused of the crime charged is found lacking due execution and genuineness. On the other
(Arriola v. People, G.R. No. 199975, February 24, hand, private documents are inadmissible
2020, J. Hernando) in evidence unless they are properly
authenticated. Disini v. Republic, G.R. No.
In criminal cases, the equipoise rule provides that 205172, June 15, 2021, J. Hernando)
where the evidence is evenly balanced, the

681

1. REQUISITES FOR ADMISSIBILITY OF
EVIDENCE (RULE 128)
Evidence is admissible when it is relevant to the
issue and is not excluded by the Constitution, the
law or by the Rules of Court. (M. De Leon,
Remedial Law Reviewer-Primer, 2021 Edition, p.
912)
For evidence to be admissible, two elements must
concur:
(Admissibility = Relevancy + Competent)
a. Relevancy – it must have such a relation to
the fact in issue as to induce belief in its
existence or non-existence.
b. Competency – it must not be excluded by
the Constitution, the law or by the rules (Rule
128, Sec. 3, as amended).
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 vs. 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
competent but may thereafter decide 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).
Admissibility and Probative Value;
Distinguished
Admissibility is different from provative value:
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 (Disini v. Republic, G.R. No.
205172, June 15, 2021, J. Hernando)
The admissibility of evidence should not be
equated with weight of evidence. Relevance and
competence determine the admissibility of
evidence, while weight of evidence presupposes
that the evidence has already been admitted and
pertains to its tendency to convince and
persuade. In other words, admissibility
determines whether a piece of evidence should
be considered at all. However, admission
in evidence does not automatically mean that it
will be accorded weight. The assessment of the
probative value of evidence is still addressed to
the sound discretion of the courts. (Municipality
of Makati v. Municipality of Taguig, G.R. No.
235316, December 1, 2021)
Since admissibility of evidence is determined by
its relevance and competence, admissibility is,
therefore, an affair of logic and law. On the other
hand, the weight to be given to such evidence,
once admitted, depends on judicial evaluation
within the guidelines provided in Rule 133 and the
jurisprudence laid down by the Court. Thus, while
evidence may be admissible, it may be entitled to
little or no weight at all. Conversely, evidence
which may have evidentiary weight may be
inadmissible because a special rule forbids its
reception (People vs. Turco, G.R. No. 137757,
August 14, 2000).
To emphasize, a preliminary investigation is
merely preparatory to a trial; it is not a trial on
682
the merits. Since it cannot be expected that upon
the filing of the information in court the
prosecutor would have already presented all the
evidence necessary to secure a conviction of the
accused, the admissibility or inadmissibility of
evidence cannot be ruled upon in a preliminary
investigation. (Maza vs. Judge Turla, G.R. No.
187094, February 15, 2017)
Exclusionary Rules
A. Constitutional exclusionary rules
(1) Unreasonable searches and seizures (Sec. 2,
Art. III, Constitution) – The right of the
people to be secure in their persons, houses,
papers, and effects against unreasonable
searches and seizures of whatever nature
and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.;
(2) Privacy of communication and
correspondence (Sec. 3, Art. III,
Constitution) –
Sec. 3 [1] The privacy of communication and
correspondence shall be inviolable except
upon lawful order of the court, or when
public safety or order requires otherwise, as
prescribed by law.
Sec. 3 [2] Any evidence obtained in violation
of this or the preceding section shall be
inadmissible for any purpose in any
proceeding.;
(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) –
Section 12 [1] Any person under
investigation for the commission of an
offense shall have the right to be informed
of his right to remain silent and to have
competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he
must be provided with one. These rights
cannot be waived except in writing and in
the presence of counsel.
Section 12 [2] No torture,
force, violence, threat, intimidation, or any
other means which vitiate the free will shall
6. be used against him. Secret detention
places, solitary, incommunicado, or other
similar forms of detention are prohibited.
Section 12 [3] Any confession or admission
obtained in violation of this or Section 17
hereof shall be inadmissible in evidence
against him.
Section 12 [4] The law shall provide for
penal and civil 7. sanctions for violations of
this section as well as compensation to and
rehabilitation of victims of torture or similar
practices, and their families.; and
(4) Right against self-incrimination (Sec. 17, Art.
III, Constitution) – No person shall be
compelled to be a witness against himself
What the Constitution prohibits is the use of
physical or moral compulsion to extort com
munication from the accused, but not an
inclusion of his body in evidence, when it
may be material. (Dela Cruz v. People, G.R.
No. 200748, July 23, 2014)
683
B. Statutory exclusionary rules
(1) Lack of documentary stamp tax to
documents (Sec. 201, NIRC) – 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;
(2) Wire-Tapping Act (Sec. 1 and 4, R.A. No.
4200) – 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
There must be a law that renders the
evidence inadmissible (Ejercito vs.
Sandiganbayan G.R. Nos. 157294-95,
November 30, 2006)
(3) Comprehensive Dangerous Drugs Act of
2002 (Sec. 21, R.A. 9165) – Accused was
subjected to a drug test as a result of his
apprehension which was conducted in
violation of Section 21, R.A. 9165. Section
21, R.A. 9165 is a statutory exclusionary rule
of evidence, bearing in mind that, under
the Rules of Court, 'evidence is admissible
when it is relevant to the issue and is not
excluded by law or these rules (Office of the
Court Administrator v. Guico, Jr., A.M. No. P-
12-3049, June 29, 2021)
(4) Law on Secrecy of Bank Deposits (Sec. 2,
R.A. No. 1405) – All deposits of whatever
nature are absolutely confidential and may
not be examined, inquired, looked into
except upon written permission of the
depositor, or in cases of impeachment, or
upon order of a competent court in cases of
bribery or dereliction of duty of public
officials or in cases where the money is the
subject matter of litigation.
(5) Anti-Terrorism Act (Sec. 23, R.A. No. 11479)
– Any listened to, intercepted, and recorded
communications, messages, conversations,
discussions, or spoken or written words, or
any part or parts thereof, or any information
or fact contained therein, including their
existence, content, substance, purport,
effect, or meaning, which have been secured
in violation of the pertinent provisions of this
Act, shall be inadmissible and cannot be
used as evidence against anybody in any
judicial, quasi-judicial, legislative, or
administrative investigation, inquiry,
proceeding, or hearing.
(6) Confidentiality Rule in Adoption Cases, (Sec.
18, A.M. 02-6-02-SC) - All hearings in
adoption cases, after compliance with the
jurisdictional requirements shall be
confidential and shall not be open to the
public. All records, books and papers relating
to the adoption cases in the files of the court,
the Department, or any other agency or
institution participating in the adoption
proceedings shall be kept strictly
confidential.
(7) Anti-Torture Act (Sec. 8, R.A. 9745) – Any
confession, admission or statement obtained
as a result of torture shall be inadmissible in
evidence in any proceedings, except if the
same is used as evidence against a person
or persons accused of committing torture.
(8) Rape Victim Assistance and Protection Act of
1998 (Sec. 6, R.A. No. 8505, Section 6) – In
prosecutions for rape, evidence of
complainant's past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that
the court finds, that such evidence is
material and relevant to the case.
(9) Alternative Dispute Resolution Act of 2004
(Sec. 9, R.A. No. 9285) – Information
obtained through mediation proceedings
684
 shall be subject to the following principles
and guidelines:
(a) Information obtained through
mediation shall be privileged and
confidential.
(b) A party, a mediator, or a nonparty
participant may refuse to disclose and
may prevent any other person from
disclosing a mediation communication.
(c) Confidential Information shall not be
subject to discovery and shall be
inadmissible in any adversarial
proceeding, whether judicial or quasi-
judicial, However, evidence or
information that is otherwise
admissible or subject to discovery does
not become inadmissible or protected
from discovery solely by reason of its
use in a mediation.
(d) In such an adversarial proceeding, the
following persons involved or
previously involved in a mediation may
not be compelled to disclose
confidential information obtained
during mediation:
i. the parties to the dispute;
ii. the mediator or mediators;
iii. the counsel for the parties;
iv. the nonparty participants;
v. any persons hired or engaged in
connection with the mediation as
secretary, stenographer, clerk or
assistant; and
vi. any other person who obtains or
possesses confidential
information by reason of his/her
profession.
(e) The protections of this Act shall
continue to apply even if a mediator is
found to have failed to act impartially.
(f) A mediator may not be called to testify
to provide information gathered in
mediation. A mediator who is
wrongfully subpoenaed shall be
reimbursed the full cost of his
attorney's fees and related expenses.
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 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) Disqualification by Reason of Marriage (Rule
130, Sec. 23, as amended).
(6) Disqualification by Reason of Privileged
Communication (Rule 130, Sec. 24).
D. Exclusions under Court issuances
(1) Rule on Electronic Evidence (e.g. compliance
with authentication requirements for
electronic evidence) (A.M. NO. 01-7-01-SC);
(2) Child Witness Rule (e.g. Sexual Abuse Shield
Rule) (A.M. NO. 004-07-SC); and
(3) Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
Doctrine of the Fruit of the Poisonous Tree
Once the primary source ( the "tree") is shown to
have been unlawfully obtained, any secondary or
685
derivative evidence (the "fruit") derived from it is Collateral Matters
also inadmissible. Stated otherwise, illegally
seized evidence is obtained as a direct result of Matters other than the fact in issue and which are
the illegal act, whereas the "fruit of the poisonous offered as a basis for inference as to the
tree" is the indirect result of the same illegal act. existence or non-existence of the facts in issue
The "fruit of the poisonous tree" is at least once (Regalado, Remedial Law Compendium Vol. 2,
removed from the illegally seized evidence, but it 2008 Ed. P. 708)
is equally inadmissible. (People v. Go y Cruz, G.R.
No. 256240 (Notice), September 19, 2022) General Rule Exception:
Evidence on Collateral evidence shall be
The rule is based on the principle that evidence collateral allowed when it tends in any
illegally obtained by the State should not be used matters shall reasonable degree to
not be allowed establish the probability or
to gain other evidence because the originally
(RIANO, improbability of the fact in
illegally obtained evidence taints all evidence Evidence [The issue (Rule 128, Sec. 4).
subsequently obtained. (Ibid.) Bar Lecture
Series], 2022 Note: What the Rules
2. RELEVANCE OF EVIDENCE AND Ed., p. 26). prohibit is evidence of
COLLATERAL MATTERS irrelevant collateral facts
(Regalado, Remedial Law
Compendium Vol. 2, 2008
Relevancy
Ed. P. 708)

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], 2022 Ed., p. 23). It is determinable by
the rules of logic and human experience
(Regalado, Remedial Law Compendium Vol. 2,
2008 Ed., p. 704)
Minor details and collateral matters do not affect
the substance of their declaration nor the veracity
or weight of witness testimony. (People v.
Imperio y Antonio, G.R. No. 232623, October 5,
2020, J. Hernando)
3. MULTIPLE ADMISSIBILITY

In civil case, a fact in issue is one which was
raised in the pleadings of the parties. In criminal
cases, a fact in issue is one which will establish
whether or not the accused is liable or guilty for
the offense as charged in the information.
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 663)
Even if a fact tends to prove a matter
determinative of the cae but the matter was not
put in issue, evidence of such fact is not
admissible since it is not relevant. In civil cases
the proponent however may avail Sec. 5 of Rule
10. (ibid.)
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).
The purpose of the evidence must be specified to
determine if it is for several purposes. The
purpose for which the evidence is offered must
be specified because such evidence may be
admissible for several purposes under the
doctrine of multiple admisibility, or may be
admissible for one purpose and not for another,
otherwise the adverse party cannot interpose the

686
proper objection. Evidence submitted for one
purpose may not be considered for any other
purpose. (Tan, Evidence, A Compendium for the
Bar, 2019 Ed., p. 65)
Illustration:
(1) Depending upon the circumstances, the
declaration of a dying person may be
admissible for several purposes.
(a) It may be offered as a dying declaration
(Sec. 38, Rule 130, Rules of Court),
(b) part of the res gestae (Sec. 44, Rule
130, Rules of Court), or
(c) declaration against interest (Sec. 40,
Rule 130, Rules of Court). (Riano,
Evidence [The Bar Lecture Series],
2022 Ed., p.31)
(2) The statement by a bus driver immediately
after the collision, that he dozed off on the
wheel while driving, may be admissible
(a) as an admission under Sec. 27 of Rule
130 or
(b) as part of the res gestae pursuant to
Sec. 44 of Rule 130. (ibid.)
4. CONDITIONAL ADMISSIBILITY
The proponent of the evidence may ask the court
that the evidence be conditionally admitted in the
meantime, subject to the condition that he is
going to establish its relevancy and competency
at a later time. If the connection is not shown as
promised, the court may, upon motion of the
adverse party, strike out from the record the
evidence that was previously conditionally
admitted. (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 32).
Example: a copy of a writing may not be
considered competent evidence until the original
is proven to be lost or destroyed.
Conditional admissibility requires no bad faith on
the part of the proponent.
5. CURATIVE ADMISSIBILITY
The doctrine of curative admissibility allows a
party to introduce otherwise inadmissible
evidence to answer the opposing party's previous
introduction of inadmissible evidence. Thus, a
party who first introduces either irrelevant or
incompetent evidence into the trial cannot
complain of the subsequent admission of similar
evidence from the adverse party relating to the
same subject matter. Conversely, the doctrine
should not be invoked where evidence was
properly admitted. (Riano, Evidence [The Bar
Lecture Series], 2022 Ed., p. 33)
Example: In an action for damages arising from
a car accident, the plaintiff, despite objection by
the defendant, was allowed to introduce evidence
to show that, on several occasions, the
defendant, in the past, had injured pedestrians
because of his negligence. The evidence was
offered to prove the defendant's propensity for
negligence. Of course, under the rules, this kind
of evidence is inadmissible because evidence that
a person did a certain thing at one time is not
admissible to prove that he did the same or a
similar thing at another time (Sec. 35, Rule 130,
ROC). If we were to follow the concept of curative
admissibility, the court may be asked to give the
defendant the chance to contradict or explain his
alleged past acts and to show evidence of his past
acts of diligence to counteract the prejudice
which the improperly admitted evidence may
have caused. (ibid.)
6. DIRECT AND CIRCUMSTANTIAL
EVIDENCE
Direct evidence and circumstantial evidence are
classifications of evidence with legal
consequences.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.
687
(Bacerra y Tabones v. People, G.R. No. 204544, that a certain event alleged to exist does
July 3, 2017) happened. not actually exist.
The testimony of W The testimony of W
Direct Evidence Circumstantial that he saw P fire a that he could not
Evidence gun at the victim is have fired the gun
positive evidence. because he was not
Evidence which Indirectly proves a fact in
armed during the
proves a issue, such that the
incident is negative
challenged fact factfinder must draw an
evidence.
without drawing inference or reason from
any inference circumstantial evidence (Riano, Evidence [The Bar Lecture Series], 2022
Ed., p. 39)
Requisites to warrant a conviction based on
circumstantial evidence Denial is a self-serving negative evidence that
cannot be given greater weight than the
(a) there is more than one circumstance; declaration of credible witnesses who testified on
(b) the facts from which the inferences are affirmative matters (Roque vs. People, G.R. No.
derived are proven; and 138954, November 25, 2004).
(c) the combination of all the circumstances is
such as to produce conviction beyond It is a long recognized general rule of evidence
reasonable doubt (Rule 133, Sec. 4)
that all other things being equal, positive
evidence is stronger than negative evidence
Jurisprudence holds that direct evidence is not
(Mitra v. Commission on Elections, G.R. No.
the sole means of establishing guilt. The lack or
191938 (Resolution), October 19, 2010)
absence of direct evidence does not necessarily
mean that the accused-appellant's guilt cannot be
proved. Circumstantial evidence, if sufficient, can
supplant the absence of direct evidence and
therefore, also prove guilt beyond reasonable
8. COMPETENT AND CREDIBLE EVIDENCE
doubt. (People v. Al-Saad y Bagkat, G.R. No.
242414, March 15, 2021, J. Hernando)
The competency of a witness differs from his
credibility. A witness may be competent, and yet
Note: It must be remembered that the probative
give incredible testimony; he may be
value of direct evidence is generally neither
incompetent, and yet his evidence, if received, is
greater than nor superior to circumstancial
perfectly credible. (Riano, Evidence [The Bar
evidence. The Rules of Court do not distinguish
Lecture Series], 2022 Ed., p. 42)
between "direct evidence of fact and evidence of
circumstances from which the existence of a fact
Competent evidence is one that is not excluded
may be inferred. (ibid.)
by law or rules in a particular case. It is
determined by the prevailing exclusionary rules of
7. POSITIVE AND NEGATIVE EVIDENCE
evidence (Regalado, Remedial Law Compendium
Vol. 2, 2008 Ed., p. 704).
Positive evidence Negative evidence
when a witness when the witness
affirms in the stand state that an event Credible evidence refers to probative value or
that a certain state did not occur or that convincing weight. Weight involves the effect of
of facts does exist or the state of facts evidence admitted, its tendency to convince and

688
persuade. It is not determined mathematically by
the numerical superiority of the witnesses
testifying to a given fact, but depends upon its
practical effect in inducing belief on the part of
the judge trying the case (Francisco, Evidence,
1996 Ed.)
C. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS (RULE 129)
JUDICIAL NOTICE
Judicial notice is based on the maxim, "what is
known need not be proved"; hence, when the
rule is invoked, the court may dispense with the
presentation of evidence on judicially-cognizable
facts (Riano, Evidence [The Bar Lecture Series],
2022 Ed., p. 93 citing Thayer, Preliminary
Treatise on Evidence, p. 277 cited in Jones, The
Law on Evidence in Civil Cases, Volume I, 3rd Ed.)
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. The principle is based on convenience and
expediency in securing and introducing evidence
on matters which are not oridinarily capable
dispute and are not bona fide disputed. The
power to take judicial notice should, however, 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. (People v.
Verbo y Mamala, G.R. No. 243587 (Notice), April
28, 2021)
Basis: This rule is based on consideration of
expediency and convenience.
Function of Judicial Notice
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
When the court takes judicial notice of a matter,
the court accepts and recognizes the same
without necessity of formal proof. Evidence shall
be dispensed with because the matter is so well
known and is of common knowledge not to be
disputable. (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 93)
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 mustbe taken that the
requisite notoriety exists; and every reasonable
doubt on the subject should be promptly
resolved in the negative. (Philippine National
Construction Corp. v. Pasos, G.R. No. 226617
Notice, August 4, 2021)
What Need Not to be Proved
(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).
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 (Philippine National
Construction Corp. v. Pasos, G.R. No. 226617
Notice, August 4, 2021)
Three Kinds of Judicial Notice
(1) Mandatory;
(2) Discretionary; and
689
(3) That which requires a hearing.
Mandatory
As a general rule, when the matter is subject to
a mandatory judicial notice, no motion or hearing
is necessary for the court may take judicial notice
of a fact.
(1) Existence and territorial extent of states;
(2) Their political history, forms of government
and symbols of nationality;
(3) The law of nations;
The Law of Nations is the body of legal
rules, norms, and standards that apply
between sovereign states and other
entities that are legally recognized as
international actors (Bentham).
Doctrine of Incorporation: as expressed in
Section 2, Article II of the 1987
Constitution, the Philippines adopts the
generally accepted principles of
international law and international
jurisprudence as part of the law of the land
and adheres to the policy of peace,
cooperation, and amity with all nations
(Bayan Muna vs. Romulo, G.R. No. 159618,
February 1, 2011).
(4) The admiralty and maritime courts of the
world and their seals;
(5) The political constitution and history of the
Philippines;
(6) The official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines;
Note: 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 requirements before a court can
(7) The laws of nature;
take judicial notice of a fact. Evidently, it
(8) The measure of time; and
was impossible for respondent judge, and
it was definitely not proper for him, to have
taken cognizance of CB Circular No. 1353,
when the same was not yet in force at the
time the improvident order of dismissal
was issued (State Prosecutors vs. Muro,
A.M. No. RTJ-92-876 September 19,
1994).
While courts are required to take judicial
notice of the laws enacted by Congress,
the rule with respect to local ordinances is
different. Ordinances are not included in
the enumeration of matters covered by
mandatory judicial notice under (Section 1,
Rule 129 of the Rules of Court).
Even where there is a statute that requires
a court to take judicial notice of municipal
ordinances, a court is not required to take
judicial notice of ordinances that are not
before it and to which it does not have
access. The party asking the court to take
judicial notice is obligated to supply the
court with the full text of the rules the party
desires it to have notice of. Counsel should
take the initiative in requesting that a trial
court take judicial notice of an ordinance
even where a statute requires courts to
take judicial notice of local ordinances.
The intent of a statute requiring a court to
take judicial notice of a local ordinance is
to remove any discretion a court might
have in determining whether or not to take
notice of an ordinance. Such a statute does
not direct the court to act on its own in
obtaining evidence for the record and a
party must make the ordinance available to
the court for it to take notice (SJS vs.
Atienza, Jr., G.R. No. 156052, February 13,
2008).
690
 (9) The geographical divisions. (Rule 129, Sec. them (Adong vs. Cheong, G.R.
1, Waterfront Philippines, Inc. v. Social No. 18081, March 3, 1922).
Security System, G.R. No. 249337, [July 6,
2021) It is well-settled in our
jurisdiction that our courts
It would be error for the court not to take judicial cannot take judicial notice
notice of an amendment to the Rules of Court of foreign laws. Like any other
(Siena Realty vs. Gal-lang, G.R. No. 145169, May facts, they must be alleged and
proved. (Rivera v. Republic,
13, 2004).
G.R. No. 238259 (Notice),
February 17, 2021)
Judicial Notice of Laws of Nations
If the foreign law is not properly
The law of nations is subject to a mandatory pleaded and proved, our courts
judicial notice. Under the Philippine Constitution, will presume that the foreign
law is the same as our local or
we adopt the generally accepted principles of
domestic or internal law (Bank
international law as forming part of the law of the of America, NT & SA vs.
land. Being parts of the law of the land, they are American Realty Corp., G.R. No.
therefore technically in the nature of local laws 133876, December 29, 1999).
and thus subject to mandatory judicial notice. Exceptions (a) When the representations
(Sec. 2, Art. II, 1987 Constitution) of the parties in action in
regard to the foreign laws
constitute admissions of
Judicial Notice of Foreign Laws
fact which the other parties
and the Court are being
General Rule Exception made to rely and act upon;
Courts cannot take Doctrine of Processual (b) When the foreign laws are
judicial notice of Presumption well and generally known;
foreign law or
(c) When the foreign laws have
Doctrine of Processual Presumption been actually ruled upon in
(Doctrine of Presumed-Identity Approach) other cases before it and
none of the parties claim
otherwise (PCIB vs. Escolin,
The International law doctrine of processual
G.R. Nos. L-27860 L-
presumption or presumed-identity approach 278896, March 29, 1974);
comes into play when a party invoking the (d) When the foreign law is
application of a foreign law to a dispute fails to part of a published treatise,
prove the foreign law. (Cargill Philippines, Inc. v. periodical or pamphlet and
Commissioner of Internal Revenue, G.R. No. the writer is recognized in
203346, September 9, 2020) his profession or calling as
expert in the subject, the
court, it is submitted, may
General There is no conclusive take judicial notice of the
Rule presumption of knowledge of treatise containing the
foreign laws. Hence foreign foreign law (Rule 130, Sec.
laws must be specially alleged 48, as amended);
and proved and our courts (e) When the action is closely
cannot take judicial notice of interrelated to another case

691
 pending between the same Discretionary
parties;
(f) Where there is finality of a When the matter is subject to discretionary
judgment in another case judicial notice
that was previously
pending determination and
therefore, res judicata; Matters which These are matters coming to
(g) Where the interest of the are of Public the knowledge of men
public in ascertain the truth knowledge generally in the course of
are of paramount ordinary experiences of life,
importance. or they may be matters
which are generally
accepted by mankind as true
Note: The appreciation of one judge of the
and are capable of ready and
testimony of a certain witness is not binding on unquestioned
another judge who heard the testimony of the demonstration.
same witness on the same matter. Each
magistrate who hears the testimony of a witness Examples: The fact that five
is called upon to make his own appreciation of (5) senators have been
the evidence (People vs. Langit, G.R. Nos. indicted; that Mayor Sotto
won in the elections, etc.
134757-58, August 4, 2000).
Matters These are facts, theories and
capable of conclusions which have
unquestionable come to be established and
Judicial Notice of Municipal Ordinance demonstration accepted by the specialists in
the areas of natural science,
General Rule Exception natural phenomena,
Courts are not If the charter of the chronology, technology,
mandated to take concerned city geography, statistical facts
judicial notice of provides for such and other fields of
municipal ordinances judicial notice. professional and scientific
as they are covered knowledge (FRANCISCO,
by mandatory judicial Evidence, 1996 ed).
notice under Rule
129, Sec. 1 Example: That December 8,
1995 falls on a Friday.
Matters ought Example: That eyewitness
Other matters that the Court should
to be known to reports provided by children
mandatorily take judicial notice judges because can be reliable, provided
of their Judicial that the questions presented
(1) Amendment of the Rules of Court; functions to them are open-‐ ended
(2) Decision of the Supreme Court; and do not contain
(3) Official acts or declarations of the President; suggestions.
(4) Banking practices; (Rule 129, Sec. 2)
(5) Financial status of the government’
(6) Powers of the President; and
Judicial notice is not judicial knowledge. The
(7) Court records
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

692
fact, not generally or professionally known, the Phils. v. Yatco Agricultural
basis of his action. Judicial cognizance is taken Enterprises, G.R. No. 172551,
only of those matters which are "commonly" January 15, 2014)
known. (Bank of Commerce v. Heirs of Dela Cruz, Exceptions In the absence of objection,
and as a matter of convenience
G.R. No. 211519, August 14, 2017)
to all parties, a court may
properly treat all or any part of
The principal guide in determining what facts may the original record of a case
be assumed to be judicially known is that of filed in its archives as read into
notoriety. Hence, it can be said that judicial notice the record of a case pending
is limited to facts evidenced by public records and before it, when:
(a) With the knowledge of the
facts of general notoriety.
opposing party, reference
is made to it for that
Judicially noticed fact must be one not subject to purpose, by name and
a reasonable dispute in that it is either: number or in some other
manner by which it is
(a) Generally known within the territorial sufficiently designated; or
jurisdiction of the trial court; or, (b) The original record of the
(b) Capable of accurate and ready former case or any part of
determination by resorting to sources whose it, is actually withdrawn
accuracy cannot reasonably be questionable from the archives by the
(People v. Verbo y Mamala, G.R. No. 243587 court's direction, at the
(Notice), April 28, 2021) request or with the
consent of the parties, and
Court’s Own Acts and Records admitted as a part of the
record of the case then
pending.(Bernas v. Estate
A court will take judicial notice of its own acts and of Felipe Yu Han Yat, G.R.
records in the same case, of facts established in Nos. 195908 & 195910,
prior proceedings in the same case, of the August 15, 2018)
authenticity of its own records of another case
between the same parties, of the files of related Courts may also take judicial notice of
cases in the same court, and of public records on proceedings in other causes because of
file in the same court (Republic vs. Court of their:
Appeals, G.R. No. 119288, August 18, 1997). (1) Close connection with the matter in
controversy.

Judicial Notice of Records of Another Case
General Courts should not take judicial
Rule 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 (Land Bank of the
Example: In a separate civil action against
the administrator of an estate arising from an
appeal against the report of the committee
on claims appointed in the administration
proceedings of the said estate, the court took
judicial notice of the record of the
administration proceedings to determine
whether or not the appeal was taken on time.

693
(2) To determine whether or not the case pending does not require proof. The admission may be
is a moot one or whether or not a previous contradicted only by showing that it was through
ruling is applicable in the case under a palpable mistake or that the imputed admission
consideration.
was not, in fact, made (Rule 129, Sec. 4, as
amended).
(3) The other case had been decided by the same
court, involving the same subject matter, with
the same cause of action, and was between General A judicial admission is
the same parties (which was not denied), and Rule conclusive upon the party
constituted res judicata on the current cause making it and does not require
before the court (Tiburcio vs. PHHC, G.R. No. proof.
L-13479, October 31, 1959). Exceptions (1) Upon showing that the
admission was made
When Hearing is Necessary through palpable mistake; or
(2) Upon showing that the
imputed admission was not,
During the Pre- Before Judgment in fact, made (Rule 129, Sec.
Trial and the Trial or on Appeal 4, as amended).
The court, motu General Rule: The
proprio or upon court CANNOT take (4) Note: The theory of adoptive admission has
motion, shall hear the judicial notice of any been adopted by the court in this jurisdiction.
parties on the matter. An adoptive admission is a party’s reaction to
a statement or action by another person when
propriety of taking
it is reasonable to treat the party’s reaction as
judicial notice of any Exception: the court,
an admission of something stated or implied
matter. motu proprio or upon by the other person. The basis for admissibility
motion, may take of admissions made vicariously is that arising
judicial notice of any from the ratification or adoption by the party
matter and shall hear of the statements which the other person had
the parties thereon if made.
such matter is
By adoptive admission, a third person's
decisive of a material
statement becomes the admission of the party
issue in the case.
embracing or espousing it. Adoptive admission
(Rule 129, Sec. 3, as amended)
may occur when a party:
(a) expressly agrees to or concurs in an oral
Hence, the court can take judicial notice of any
statement made by another;
matter during [the pre-trial and] the trial as long (b) hears a statement and later on essentially
as there is a hearing. If trial is already over, the repeats it;
court can take judicial notice only of matters (c) utters an acceptance or builds upon the
decisive of a material issue in the case as long as assertion of another;
there is a hearing (Francisco, Evidence 11th ed. p. (d) replies by way of rebuttal to some
88). specific points raised by another but
ignores further points which he or she
has heard the other make or
Judicial Admissions (e) reads and signs a written statement
made by another. (Republic v. Kenrick
An admission, oral or written, made by a party in Development Corp., G.R. No. 149576,
the course of the proceedings in the same case, August 8, 2006)

694
 be considered by the already form part of
Elements of Judicial Admission court. the records.
May be given in Not only is it evidence
(1) The admission must be made by a Party to evidence against the against the admitter
the case. (Rule 129, Sec 4) admitter. but is binding upon
him.
Note: Admissions of a non-party do NOT fall
May be contradicted May not be
within the definition of Rule 129, Sec 4.
by the admitter. contradicted by the
admitter except upon
(2) The admission, to be judicial, must be made
showing that the
in the course of the proceedings in the same
admission was made
case. (ibid.)
through palpable
General Rule Exception mistake or that the
Judicial admissions Where there is imputed admission
should be made in the identity of parties in was not, in fact,
same case. (Rule 129, interest (Republic made.
Sec 4) Glass vs. Qua, G.R.
No. 144413, July 30,
It is settled that judicial admissions may be made:
2004)
(a) in the pleadings filed by the parties; (b) in the
course of the trial either by verbal or written
Note: An admission made in another judicial
manifestations or stipulations; or (c) in other
proceeding will not be deemed a judicial
stages of judicial proceedings, as in the pre-trial
admission in the case where the admission is not
of the case. Thus, facts pleaded in the petition
made. Instead, it will be considered an
and answer, as in the case at bar, are deemed
extrajudicial admission for purposes of the other
admissions of petitioner and respondents,
proceeding where such admission is offered
respectively, who are not permitted to contradict
(Riano, Evidence [The Bar Lecture Series], 2022
them or subsequently take a position contrary to
Ed., p. 107).
or inconsistent with such admissions (Estate of
Bueno v. Estate of Peralta, G.R. No. 205810,
(3) An admission may either be Oral or Written.
(ibid.) September 9, 2020)

Extrajudicial Admission and Judicial In order to constitute a judicial admission, the

Admission, Distinguished statement must be one of fact, not opinion. To
be a judicial admission, a statement must be co
Extrajudicial Judicial ntrary to an essential factor defense asserted by
Admission Admission the person giving the testimony; it must be deli
(Rule 130, Sec. 27) (Rule 129, Sec. 4) berate, clear and unequivocal. (Aquino v.
Made outside of the Made in the course of Aquino, G.R. Nos. 208912 & 209018, December
proceedings in the the proceedings in the 7, 2021)
same case. same case.
Must be offered in Need not be offered A written statement is nonetheless competent as
evidence in order to in evidence since they an admission even if it is contained in a document
which is not in itself effective for the purpose for

695
which it is made, either by reason of illegality, or July 15, 2003). Admissions in amended pleadings
incompetency of a party thereto, or by reason of (Rule 10, Sec. 8, as amended);
not being signed, executed or delivered.
Accordingly, contracts have been held as Admissions in the superseded pleading disappear
competent evidence of admissions, although they from the record and cease to be judicial
may be unenforceable (Republic of the admissions. While they may nonetheless be
Philippines vs. Sandiganbayan, G.R. No. 152154, utilized against the pleader as extra-judicial
July 15, 2003). admissions, they must, in order to have such
effect, be formally offered in evidence (Director
Once the stipulations are reduced into writing and of Lands vs. CA, G.R. No. L-31408, April 22,
signed by the parties and their counsels, they 1991).
become binding on the parties who made them.
They become judicial admissions of the fact or (e) Admissions made by counsel;
facts stipulated. Even if placed at a
disadvantageous position, a party may not be General The statements of counsel
allowed to rescind them unilaterally; it must Rule made in open court during
the hearing in his capacity as
assume the consequences of the disadvantage
counsel of record of a party
(Bayas vs. Sandiganbayan, G.R. Nos. 143689-91,
is deemed to be in the
November 12, 2002) nature of judicial admission
made by him on behalf of his
Instances of Judicial Admissions client (SURICON vs.
PLASLU, G.R. No. L-22970,
(a) Admissions made in the course of the June 9, 1969).
proceedings (Rule 129, Sec. 4). Exceptions (a) Upon showing that the
(b) The genuineness and due execution of an admissions had been
actionable document copied or attached to a made through palpable
pleading, when the other party fails to mistake;
specifically deny under oath (Rule 8, Sec. 8, (b) Unauthorized admissions
as amended); during the pre-trial made
(c) Material averments in a pleading asserting a by counsel should not
claim or claims, when not specifically denied bind the client (Macaraeg
(Rule 8, Sec. 11, as amended); vs. CA, G.R. No. L-48008,
(d) Negative Pregnant Denial; January 20, 1989);
(c) An admission which
operates as a waiver,
Note: A defense is considered a negative
surrender, or destruction
pregnant when it contains a denial pregnant with
of the client’s cause is
an admission of the substantial facts alleged in beyond the scope of the
the pleading. Where a fact is alleged with attorney’s implied
qualifying or modifying language and the words authority (People vs.
of the allegation as so qualified or modified are Hermanes, G.R. No.
literally denied, it has been held that the 139416, March 12,
2002).
qualifying circumstances alone are denied while
the fact itself is admitted (Republic of the
(f) Admissions obtained through depositions,
Philippines vs. Sandiganbayan, G.R. No. 152154, written interrogatories or requests for
admissions (Rules 23-26, as amended).

696
 In civil cases, an amended pleading becomes a
judicial admission; and the contents of the
Effect of Judicial Admissions pleading it amended which are not included in the
amended pleading becomes extra-judicial
General Rule Exceptions admissions which must be offered in evidence for
A judicial (1) Upon showing that the it to be considered by the trial court (Ching vs.
admission is admission was made Court of Appeals, G.R. No. 110844, April 27,
conclusive upon through palpable 2000).
the party making mistake; or
it and does not (2) Upon showing that the
require proof. imputed admission was General Rule Exceptions
not, in fact, made Judicial (1) The said admissions
(Rule 129, Sec. 4, as amended). admissions were made only for
made in one purposes of the first
case are case, as in the rule of
A party who judicially admits a fact cannot later admissible at the implied admissions and
challenge that fact, as judicial admissions are a trial of another their effects under Rule
waiver of proof; production of evidence is case provided 26;
dispensed with. (Monteroso v. Morado, G.R. No. they are proved (2) The same were
247534 (Notice), June 28, 2021) and are withdrawn with the
pertinent to the permission of the court
issue involved in therein; or
Consequently:
the latter. (3) The court deems it
(a) An admission made in the pleadings cannot proper to relieve the
be controverted by the party making such party therefrom.
admission and are conclusive as to such
party, and all proofs to the contrary or
inconsistent therewith should be ignored,
Pre-Trial Admissions
whether objection is interposed by the party
or not. Pre-Trial The parties shall file with the
(b) The allegations, statements or admissions Admissions court and serve on the adverse
contained in a pleading are conclusive as in Civil party, in such manner as shall
against the pleader. Cases ensure their receipt thereof at
(c) A party cannot subsequently take a position least three (3) calendar days
contrary to or inconsistent with what was before the date of the pre-trial,
pleaded (Florete, Sr. vs. Florete, Jr., G.R. No. their respective pre-trial briefs
223321, April 2, 2018). which shall contain, among
others, a summary of admitted
facts and proposed stipulation
How Judicial Admissions May be
of facts [Rule 18, Sec. 6(b), as
Contradicted
amended].
(a) Upon showing that the admission was made
through palpable mistake; or The contents of the pre-trial
(b) Upon showing that the imputed admission order shall control the
was not, in fact, made (Rule 129, Sec. 4, as subsequent proceedings,
amended). unless modified before trial to
prevent manifest injustice
Judicial Admissions in Pleadings Later (Rule 18, Sec. 7, as amended).
Amended

697
 The Pre-trial order shall include
an enumeration of the
admitted facts [Rule 18, Sec.
7(a), as amended].
Should there be no more
controverted facts, or no more
genuine issue as to any
material fact, or an absence of
any issue, or should the answer
fail to tender an issue, the court
shall, without prejudice to a
party moving for judgment on
the pleadings under Rule 34 or
summary judgment under Rule
35, motu proprio include in the
pre-trial order that the case be
submitted for summary
judgment or judgment on the
pleadings, without need of
position papers or memoranda
(Rule 18. Sec. 10). (n)
Pre-Trial All agreements or admissions
Admissions made or entered during the
in Criminal pre-trial conference shall be
Cases reduced in writing and signed
by the accused and counsel,
otherwise, they cannot be used
against the accused (Rule 118,
Sec. 2).
D. OBJECT (REAL) EVIDENCE (RULE 130, A)
Nature of Object Evidence
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).
Object evidence also includes anything which
comes within the cognizance or scrutiny of the
senses, especially anything tangible or visible.
(Moya, Notes and Cases in Remedial Law, 2019
ed, p. 71)
Object or real evidence is exactly what its name
suggests. It is the real thing itself like the knife
used to slash the victim's throat, the ring actually
stolen by the accused, the bullet extracted from
the victim's chest, the mangled fender of a truck
that was rear-ended by a bulldozer, or the blood
splattered on the wall of the room where the
victim was found. (Riano, Evidence [The Bar
Lecture Series], 2022 Ed., p. 119)
Physical evidence is a mute but eloquent
manifestation of truth. It rates highly in the
hierarchy of trustworthy evidence. The physical
evidence here is compatible with the testimonies
of the prosecution witnesses but inconsistent
with appellant's defense of denial. These
testimonies, therefore, must prevail. (People v.
Gonzales y Torno, G.R. No. 217022, June 3,
2019)
Examples of Object Evidence
(1) Any article or object which may be known or
perceived using the senses;
(2) Examination of the anatomy of a person or
of any substance taken therefrom;
(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, Remedial Law
Compendium Vol. 2, 2008 Ed., p.717)
Scope of Object Evidence
(1) Sense of vision;
(2) Sense of hearing (auditory);
(3) Sense of touch (tacticle);
(4) Sense of taste (gustatory); and
(5) Sense of smell (olfactory). (Tan, Evidence, A
Compendium for the Bar, 2019 Ed., p. 207)
698
Effects if the object evidence is relevant to The right against self-incrimination cannot be
the issue in the case invoked against object evidence.

General Rule Exceptions Thus, an accused may be compelled to submit

When an object Court may refuse exhibition
is relevant to the of object evidence and rely
fact in issue, it on testimonial evidence
may be: alone if:
(1) Exhibited • Contrary to public policy,
to; morals or decency;
(2) Examined; • Would result in delays,
(3) Viewed by inconvenience or express
the court. out of of proportion to its
evidentiary value;
(Rule 130, Sec. • Evidence would be
1) confusing or misleading.
(M. De Leon, Remedial Law Reviewer-Primer,
2021 Edition, p. 933)
himself to bodily inspection and whatever object
is retrieved on his person would be admissible
even though it would incriminate such accused.
Also, on cross examination, an accused may be
compelled to write so his handwriting may be
used as object evidence to compare with the one
in question. The right against self-incrimination
guaranteed under the fundamental law had no
application in this case because no testimonial
compulsion was involved. (People vs. Malimit,
G.R. No. 109775, 1996).

Instances when a document is considered

as object evidence
(1) When it tends to prove the existence or non-
existence of the document
(2) When the purpose is to prove the nature of
the handwriting in the document
(3) When the intention of the party is to
determine the age of the paper or material
used
(4) When its purpose is to prove the alterations,
blemishes or forgery in a document (Tan,
Evidence, A Compendium for the Bar, 2019
Ed., p. 208)
1. REQUISITES
(a) The object must be relevant to the fact in
issue;
(b) The object must be authenticated before
it is admitted;
(c) The authentication must be made by a
competent witness;
(d) The object must be formally offered in
evidence (Riano, Evidence [The Bar
Lecture Series], 2022 Ed., pp. 121-122).
Limitations on the Admission of Object or
Real Evidence

Personal Appearance as Object Evidence Object or real evidence may be refused

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 Body of the Accused as Object Evidence
admittance by the court on the following
grounds:
(1) The exhibition of such objects is contrary
to morals or decency;
(2) To require its being viewed in court or in an
ocular inspection would result in delays,
inconvenience, unnecessary expenses
out of proportion to the evidentiary value of
such object;
(3) Such object evidence would be confusing
or misleading, as when the purpose is to
prove the former condition of the object and
there is no preliminary showing that there

699
 has been no substantial change in said
condition or Three (3) categories of actual evidence
(4) The testimonial or documentary
evidence already presented clearly
Unique Objects Non-unique
portrays the object in question as to
objects made objects
render a view thereof unnecessary
unique
(Regalado, Remedial Law Compendium Vol.
Those that Those that Those with
2, 2008 Ed., p. 716).
have readily have readily no identifying
identifiable identifiable marks
Categories of Object Evidence marks marks
Example: a Example: Example:
Object evidence is classified into two (2) particular unit-specific narcotic
categories: paint job or serial number substances,
an accidental in case of an industrial
(1) Actual physical or “autopic” evidence – scratch, dent, industrially chemicals,
those which have a direct relation or part in cut, chip, manufactured and body
the fact or incident sought to be proven and disfigurement item fluids
those brought to the court for personal or stain
examination by the presiding magistrate; (People vs. Olarte, G.R. No. 233209, March, 11,
2019)
View of an object or scene
(2) Demonstrative Evidence – Tangible
The "view" is expressly authorized by Sec. 1 of evidence that merely illustrates a matter of
importance in the litigation, i.e., maps,
Rule 130 but even without this express provision,
diagrams, photographs, x-ray pictures. (M.
it is well-recognized that the court has an De Leon, Remedial Law Reviewer-Primer,
inherent power to order a view when there is a 2021 Edition, p. 934)
need to do so (Rule 135, Sec. 5).
Not strictly the “real evidence because it is
Courts have recognized that there are times when not the very thing involved in the case as it
a party cannot bring an object to the court for merely represents or demonstrates the real
viewing in the courtroom. In such a situation, the thing; visual aid. (ibid.)
court may take a view of an object. (Riano,
Evidence [The Bar Lecture Series], 2022 Ed., p. Those which represent the actual or physical
128). object (or event in case of pictures or videos)
being offered to support or draw an
If the object cannot be introduced in court, inference or to aid in comprehending the
because it is immovable or inconvenient to verbal testimony of a witness. (People vs.
remove, like buildings, machinery, animals or Olarte, supra.)
other heavy objects, the natural tendency is for
the tribunal to go to the object in its place and NOTE: In case of non-unique objects, the
there observe it. It has been recognized as proponent of the evidence must establish the
appropriate and rests entirely on the sound chain of custody.
discretion of the trial court. (M. De Leon,
Remedial Law Reviewer-Primer, 2021 Edition, p. Photographs as object evidence
934)

700
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.
When there is a testimonial or documentary
evidence already presented which already
described the object sufficiently. (People v. Saulo
y Sordan, G.R. No. 201450 (Notice), April 7,
2014)
Under the Rules on Electronic Evidence,
photographic evidence of events, acts or
transactions shall be admissible in evidence
provided that:
(a) It shall be presented, displayed and shown
to the court; and
(b) It shall be identified, explained or
authenticated by either:
(i) The person who made the recording; or
(ii) Some other person competent to testify
on the accuracy thereof (Sec. 1, Rule 11,
Rules on Electronic Evidence, A.M. NO. 01-
7-01-SC).
The admissibility of photographs is within the
discretion of the trial court, and its ruling in this
respect will not be interfered with, except upon a
clear showing of an abuse of discretion. In
determining whether photographs should be
admitted, a trial judge must determine whether
they are relevant, and whether a proper
foundation has been laid. (Riano, Evidence [The
Bar Lecture Series], 2022 Ed., p. 125).
Motion pictures and recordings as object
evidence
The rules that apply to photographs generally
apply to motion pictures and recordings.
It is generally held that sound recording is not
inadmissible because of its form where a proper
foundation has been laid to guarantee the
genuineness of the recording. In our jurisdiction,
it is a rudimentary rule of evidence that before a
tape recording is admissible in evidence and
given probative value, the following requisites
must first be established, to wit:
(1) A showing that the recording was capable of
taking testimony
(2) A showing that the operator of the recording
device is competent
(3) Establishment of the authenticity and
correctness of recording
(4) A showing that no changes, deletions, or
additions have been made on the recordings
(5) A showing of the manner of preservation of
the recording
(6) Identification of speakers
(7) A showing that the testimony elicited was
voluntarily made without any kind of
inducement (Torralba vs. People, G.R. No.
153699, August 22, 2005)
Diagrams, models and maps as object
evidence
Like any other exhibit, the touchstone for
admissibility of maps, diagrams and models is the
ability of the witness to authenticate the exhibit.
Some courts may require that the model, diagram
or map be made or drawn to scale. If not drawn
to scale, the court must be so informed. The
question as to the sufficiency of the
authentication is a matter of judicial discretion.
(Riano, Evidence [The Bar Lecture Series], 2022
Ed., p. 127).
2. EXCLUSIONARY RULES
Chain of custody in general
Chain of custody rule applies to objects which are
not readily identifiable, were not made
identifiable or cannot be made identifiable like
701
drops of blood or oil, drugs in powder form, fiber,
grains of sand, and similar objects.
That in chain of custody it must be shown that
the item subject of the offense is the same
substance offered in court as exhibit. (People v.
Pundugar, G.R. No. 214779 (Resolution),
February 7, 2018)
That, the chain of custody rule takes primary
importance to ascertain that the integrity and
identity of the seized item are preserved with
moral certainty. (People v. Del Mundo y Abac,
G.R. No. 208095, September 20, 2017) Inorder
to dispel unnecessary doubts as to the
identity of the evidence.
To be admissible, the prosecution must establish
by records or testimony the continuous
whereabouts of the exhibit, from the time it came
into the possession of the police officers, until it
was tested in the laboratory to determine its
composition, and all the way to the time it was
offered in evidence. (People v. Mendoza y Potolin,
G.R. No. 220759, July 24, 2017)
CHAIN OF CUSTODY IN RELATION TO
SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT
“Chain of custody” means the duly recorded,
authorized movements and custody of the seized
drugs at each stage, from the moment of
confiscation to the receipt in the forensic
laboratory for examination until it is presented to
the court. (Section 1[b] of Dangerous Drugs
Board Regulation No. 1, Series of 2002; Uy y
Sayan v. People, G.R. No. 217097, February 23,
2022, J. Hernando)
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).
Corpus Delicti in drug cases
In illegal drug cases, the confiscated drug
constitutes the very corpus delicti of the offense
and the fact of its existence is essential to sustain
a guilty verdict. Thus, aside from proving the
elements of the crimes of Illegal Sale and
Possession, it is equally important for the
prosecution to establish beyond reasonable
doubt theintegrity and identity of the dangerous
drug. It must be proven with moral certainty
that the substance obtained from the accused
during the buy-bust operation is exactly the same
substance offered in evidence before the court.
(People v. Ortega, G.R. No. 240224, February 23,
2022, J. Hernado)
The lack of conclusive identification of the illegal
drugs allegedly seized from the accused strongly
militates against a finding of guilt. (People v.
Mendoza y Manlapaz, G.R. No. 252301 (Notice),
October 6, 2021)
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 as to the identity of the
evidence are removed. The prosecution must
show by records or testimony, the continuous
whereabouts of the exhibit at least
between the time it came into
possession of the police officers and until it was
tested in the laboratory to determine its
composition up to the time it was offered
in evidence. (People v. Villete y Cuadro, G.R. No.
229051 (Notice), March 21, 2022)
702
Scope of Application of the Chain of
Custody Rule
It shall include the 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 v. O'Cochlain, G.R. No.
229071, December 10, 2018)
Chain of Custody as a method
authentication
As a method of authenticating evidence, the
chain of custody rule requires that the admission
of an exhibit be preceded by evidence sufficient
to support a finding that the matter in question is
what the proponent claims it to be.
(a) It would include testimony about every
link in the chain, from the moment the
item was picked up to the time it is offered
into evidence, in such a way that every
person who touched the exhibit would
describe how and from whom it was
received, where it was and what happened
to it while in the witness' possession, the
condition in which it was received and the
condition in which it was delivered to the
next link in the chain.
(b) These witnesses would then describe
the precautions taken to ensure that
there had been no change in the
condition of the item and no opportunity for
someone not in the chain to have possession
of the same. (People v. Añonuevo y Juvida,
G.R. No. 251707 (Notice), July 28, 2021)
Chain of Custody in Drug-Related Cases
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).
Four (4) Links to Establish Chain of Custody
To ensure the integrity of the seized drugs, the
prosecution must account for each link in
of the chain of custody, as follows:
(1) the seizure and marking, if practicable, of
the illegal drug recovered from the accused
by the apprehending officer;
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:
(a) The Accused or his Counsel,
(b) A representative from the Media,
(c) A representative from the DOJ, and
(d) 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. 21a)
“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);
(2) the turn-over of the seized illegal drug to the
investigating officer;
703
(3) the turn-over by the investigating Garcia, G.R. No. 245253 (Notice), September 7,
officer of the illegal drug to the forensic 2020)
chemist for laboratory examination; and
(4) the turn-over and submission of the illegal
What is of utmost importance is the preservation
drug from the forensic chemist to the court.
(People v. Hernandez, G.R. No. 258077, of the integrity and evidentiary value of the seized
June 15, 2022, J. Hernando) items, as the same would be utilized in the
determination of the guilt or innocence of the
Effect of Non-Compliance of Chain of accused. In other words, to be admissible in
Custody evidence, the prosecution must be able to
present through records or testimony, the
General Rule Exception whereabouts of the dangerous drugs from the
Generally, non- The failure of the time these were seized from the accused by the
compliance with the arresting officers to arresting officers; turned over to the investigating
chain of custody rule prepare the required officer; forwarded to the laboratory for
results to the acquittal inventory and
determination of their composition; and up to the
of the accused, for it photograph of the
time these are offered in evidence (People of the
compromises the seized dangerous
identity and integrity of drug militated Philippines vs. Dela Cruz, G.R. No. 212171,
the corpus delicti. The against the guilt of September 07, 2016).
exception is whenever an accused. For
compelling reasons under these DNA Evidence
exist that would circumstances, the
otherwise warrant integrity and
Governing Rule
deviation from the evidentiary value of
established protocol so the corpus delicti
long as the integrity cannot be deemed to The Rule on DNA Evidence was promulgated by
and evidentiary value have been preserved the Supreme Court through A.M. 06-11-05-SC.
of the seized items are
properly preserved Nature
(People of the Philippines vs. Omamos, G.R. No.
223036, July 10, 2019). The Rule on DNA Evidence is the primary rule to
be applied whenever DNA evidence is offered,
used, or proposed to be offered or used as
Substantial Compliance evidence in:
(a) criminal actions;
Although ideally the prosecution should offer a (b) civil actions; and
perfect chain of custody in the handling of (c) special proceedings (Sec. 1, Rule on DNA
evidence, “substantial compliance with the legal Evidence, A.M. 06-11-05-SC)
requirements on the handling of the seized item”
is sufficient. This Court has consistently ruled that Meaning OF DNA
even if the arresting officers failed to strictly
comply with the requirements under Section 21 Deoxyribonucleic Acid, or DNA, is a molecule
of R.A. No. 9165, such procedural lapse is not that encodes the genetic information in all living
fatal and will not render the items seized organisms. A person’s DNA is the same in each
inadmissible in evidence. (People v. Esteban y cell and it does not change throughout a person’s
lifetime. The DNA in a person’s blood is the same

704
as the DNA found in his saliva, sweat, bone, the
root and shaft of hair, earwax, mucus, urine, skin
tissue, and vaginal and rectal cells. Most
importantly, because of polymorphisms in human
genetic structure, no two individuals have the
same DNA, with the notable exception of identical
twins. (Lejano v. People, G.R. Nos. 176389 &
176864, December 14, 2010)
“DNA Evidence” constitutes the totality of the
DNA profiles, results and other genetic
information directly generated from DNA testing
of biological samples (Sec. 3[c], Rule on DNA
Evidence, A.M. 06-11-05-SC)
“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). (Sec. 3, Rule on DNA Evidence,
A.M. 06-11-05-SC)
Application for DNA Testing Order
General A person who has a legal interest
Rule in the litigation may file an
application for DNA testing order
before the appropriate court, at
any time (Sec. 4, Rule on DNA
Evidence, A.M. 06-11-05-SC)
Exception A court order is not always
required before undertaking a
DNA testing. The last paragraph
of Sec. 4 of the Rule on DNA
Evidence 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. This also
means that litigation need not
exist prior to DNA testing. Thus,
a court order shall be required
only if there is a pending
litigation, but not before the
litigation. An order granting the
DNA testing shall be immediately
executory and shall not be
appealable. The remedy would
be to file a petition for certiorari
under Rule 65, but this shall not,
in any way, stay the
implementation thereof, unless a
higher court issues an injunctive
order (Riano, Evidence [The Bar
Lecture Series], 2022 Ed.,p.
149).
The order for a DNA testing shall not, however,
be issued as a matter of course and from the
mere fact that the person requesting for the
testing has a legal interest in the litigation. For
the order to be issued:
(1) A biological sample exists that is relevant to
the case;
(2) The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) 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; (Sec. 4 Rule on DNA Evidence, A.M.
06-11-05-SC); and
(6) There must be a prima facie showing of
relationship or paternity (Lucas vs. Lucas,
G.R. No. 190710, June 6, 2011)
705
Upon Compliance of the Requirement in
Rule on DNA Evidence, Sec. 4, the court
shall:
(1) Order, where appropriate, that biological
samples be taken from any person or crime
scene evidence;
(2) Impose reasonable conditions on DNA
testing designed to protect the integrity of
the biological sample, the testing process
and the reliability of the test results,
including the condition that the DNA test
results shall be simultaneously disclosed to
the parties involved in the case; and
(3) If the biological sample taken is of such
amount that prevents the conduct of
confirmatory testing by the other or the
adverse party and where additional
biological samples of the same kind can no
longer be obtained, issue an order
requiring all parties to the case or
proceedings to witness the DNA
testing to be conducted (Sec. 5, Rule on
DNA Evidence, A.M. 06-11-05-SC)
Post-Conviction DNA Testing; Remedy
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment provided that:
(1) A biological sample Exists;
(2) Such sample is Relevant to the case; and
(3) The testing would Probably result in the
reversal or modification of the judgment of
conviction.
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, it 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
(Sec. 10, Rule on DNA Evidence, A.M. 06-11-05-
SC)
Confidentiality
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;
(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 (Sec. 11, Rule
on DNA Evidence, A.M. 06-11-05-SC)
Assessment of Probative Value of DNA
Evidence and Admissibility
Sections 7 and 8 of the Rule on DNA Evidence
specifically provide for the considerations in
assessing the probative value of DNA evidence,
courts should consider the following data:
(1) How the samples were collected,
(2) How they were handled,
(3) Possibility of contamination,
(4) Procedure followed in analyzing the
samples,
706
 (5) Whether proper standards of procedure
were followed in conducting the tests,
(6) Qualification of the analyst who conducted
the test. (People v. Corpuz y Flores, G.R.
No. 208013, July 3, 2017)
By the terms of Sec. 5 of the Rule on DNA
Evidence, the grant of a 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 of the
testing. This necessarily means that the court will
still have to evaluate the probative value of the
proposed evidence before its admission.
The determination of the probative value of
the DNA evidence rests upon sound judicial
assessment taking into consideration the
following matters:
(1) The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
(2) The DNA testing methodology, including
the procedure followed in analyzing the
samples, the advantages and disadvantages
of the procedure, and compliance with the
scientifically valid standards in conducting
the tests;
(3) The forensic DNA laboratory, including
accreditation by any reputable standards
setting institution and the qualification of the
analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
(4) The reliability of the testing result, as
hereinafter provided. (Riano, Evidence [The
Bar Lecture Series], 2022 Ed., p. 150).
Factors to Determine the Reliability of the
DNA Testing Methodology
In evaluating whether the DNA testing
methodology is reliable, the court shall consider
the following:
(1) The falsifiability of the principles or methods
used, that is, whether the theory or
technique can be and has been tested;
(2) The subjection to peer review and
publication of the principles or methods;
(3) The general acceptance of the principles or
methods by the relevant scientific
community;
(4) The existence and maintenance of standards
and controls to ensure the correctness of
data generated;
(5) The existence of an appropriate reference
population database; and
(6) 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. (Sec. 8, Rule on
DNA Evidence, A.M. 06-11-05-SC)
Probability of Paternity in DNA Evidence
DNA results that exclude the putative parent from
paternity shall be conclusive proof of paternity. If
the value of the Probability of Paternity is less
than 99.9%, the results of the DNA testing shall
be considered as corroborative evidence. If the
value of the Probability of Paternity is 99.9% or
higher there shall be a disputable presumption of
paternity. (M. De Leon, Remedial Law Reviewer-
Primer, 2021 Edition, p. 943)
It is not enough to state that the child’s DNA
profile matches that of the putative father. A
complete match between the DNA profile of the
child and the DNA profile of the putative father
does not necessarily establish paternity. For this
reason, following the highest standard adopted in
an American jurisdiction, trial courts should
require at least 99.9% as a minimum value of the
Probability of Paternity (“W”) prior to a paternity
inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father
707
compared to the probability of a random match Actual damages must be substantiated by
of two unrelated individuals. Due to the documentary evidence, such as receipts, in order
probabilistic nature of paternity inclusions, W will to prove expenses incurred as a result of the
never equal to 100%. (Herrera vs. Alba, G.R. No. death of the victim or the physical injuries
148220, June 15, 2005) sustained by the victim. (PHC vs. Lee, G.R. No.
166869, February 16, 2010)
E. DOCUMENTARY EVIDENCE
2. ORIGINAL DOCUMENT RULE
1. DEFINITION
(Previously referred to as the best evidence rule)
Documentary evidence consists of writings,
recordings, photographs or any material The term "best evidence," as used prior to the
containing letters, words, sounds, numbers, term "original document," is a misnomer and has
figures, symbols, or their equivalent, or other been a source of misconception. (Riano, Evidence
modes of written expression offered as proof of [The Bar Lecture Series], 2022 ed, p. 160)
their contents.
Purpose of the Rule
Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or The rationale behind the rule is the avoidance of
videos. (Sec. 2, Rule 130, as amended) dangers of mistransmissions and inaccuracies of
the contents of the document (Goopio vs.
To be deemed documentary evidence, such Maglalang, A.C. No. 10555, July 31, 2018)
writings or materials must be offered as proof of
their contents. The primary purpose of the Best Evidence Rule is
to ensure that the exact contents of a writing are
When a document is presented to prove its brought before the court, considering that:
existense or condition it is offered not as (a) the precision in presenting to the court the
documentary, but as real, evidence. (Citibank, exact words of the writing is of more than
N.A. vs. Sabeniano, G.R. No. 156132, October 16, average importance, particularly as respects
operative or dispositive instruments, such as
2006).
deeds, wills and contracts, because a slight
variation in words may mean a great
Requisites for Admissibility difference in rights;
(b) there is a substantial hazard of inaccuracy in
• Relevant the human process of making a copy by
• Competent handwriting or typewriting; and
Identified Not present in (c) as respects oral testimony purporting to give
Authenticated Testimonial from memory the terms of a writing, there is
Duly Marked; and Evidence a special risk of error, greater than in the
case of attempts at describing other
• Formally Offered
situations generally. (Heirs of Prodon v.
Heirs of Alvarez, G.R. No. 170604,
Documentary evidence as proof of September 2, 2013)
damages

708

Original of a Document
The document Negative / Print of a
itself Photograph
An "original" of a An "original" of
document is the photograph includes the
document itself negative or any print
or any therefrom. If data is stored
counterpart in a computer or similar
intended to have device, any printout or
the same effect other output readable by
by a person sight or other means,
executing or shown to reflect the data
issuing it. accurately, is an "original."
(Section 4[a], Rule 130)
General When the subject of inquiry is
Rule the contents of a document, no
evidence shall be admissible
other than the original
document itself (Sec 3, Rule
130)
For documentary evidence, the
contents of a document are
best proved by the production
of the document itself to the
exclusion of secondary or
substitutionary evidence.
(Berboso vs. Cabal, G.R. No.
204617, July 10, 2017)
Exceptions: (1) When the original has been
lost or destroyed, or cannot
be produced in court,
without bad faith on the part
of the offeror;
(2) When the original is in the
Custody or under the control
of the party against whom
the evidence is offered, and
the latter fails to produce it
after reasonable notice, or
the original cannot be
obtained by local judicial
processes or procedures;
(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;
(4) When the original is a Public
a
record in the custody of a
public officer or is recorded
in a public office; and
(5) When the original is Not
closely-related to a
controlling issue (Rule 130,
Sec. 3).
(1) When the original has been Lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
For secondary evidence to be admissible,
there must be satisfactory proof of:
(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 the
original document:
(a) By a copy of the original;
(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.
(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;
709
 If the document is in the custody or under
the control of adverse party, the offeror
must prove the following:
(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.
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).
(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 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 130, Sec. 8,
as amended).
(5) When the original is Not closely-related to a
controlling issue (Rule 130, Sec. 3).
Scope of the Original Document Rule
The Original Document Rule applies only when
the content of such a document is the subject of
the inquiry.
It does not apply:
(a) Issue is Genuineness and Due Execution -
Where the issue is only as to whether such
a 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 original (Tamayao v.
Lacambra, G.R. No. 244232, November 3,
2020)
(b) Object/ Real Evidence - 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).
710
 Original vs. Duplicate
Waiver of the Original Document Rule
Original Duplicate
The Original Document Rule may be waived if not
raised in the trial. An Original A Duplicate is a
Document refers to: counterpart
In one case, although the marriage certificate, produced:
the marriage license, and other pieces of - The document itself;
documentary evidence were only photocopies, or (1) By the same
the fact that these have been examined and - Any counterpart Impression as
admitted by the trial court, with no objections intended to have the the original;
having been made as to their authenticity and (2) From the same
same effect by a
due execution, means that these documents are Matrix
person executing or (3) By means of
deemed sufficient proof of the facts contained issuing it. Photography,
therein (Sy vs. Court of Appeals, G.R. No. including
127263, April 12, 2000). An original of a enlargement and
photograph miniatures;
If the party never objected to the submission of includes: (4) By mechanical or
the photostatic copies as evidence, the electronic Re-
production of the originals is dispensable. recording;
(a) The negative; or (5) By chemical
(b) Any print Reproduction; or
This was our view in Estrada v. Hon. Desierto therefrom. (6) By Other
where we ruled that the production of the original equivalent
may be dispensed with if the opponent does not If data is stored in a techniques which
dispute the contents of the document and no computer or similar accurately
other useful purpose would be served by device, any printout or reproduce the
other output readable original (Rule
requiring its production. In such case, we ruled
by sight or other 130, Sec. 4[b])
that secondary evidence of the content of the
writing would be received in evidence if no means, shown to
objection was made to its reception (People vs. reflect the data
Sandiganbayan, G.R. Nos. 153304-05, February accurately, is an
7, 2012). original (Rule 130,
Sec. 4[a])
Meaning of Duplicate
Original printout of facsimile transmissions
When a document is in two or more copies A facsimile transmission is not the functional
executed at or about the same time, with equivalent of an original under the Best Evidence
identical contents, all such copies are equally Rule. In an ordinary facsimile transmission, there
regarded as originals. (Sec 4[b], Rule 130; exists an original paper-based information or data
Basagan v. Espina, A.C. No. 8395 , July 8, 2020) that is scanned, sent through a phone line, and
re-printed at the receiving end. (MCC Industrial
Sales Corporation vs. Ssangyong Corporation,
G.R. No. 170633, October 17, 2007).

711

The Court, in this case, concluded that the terms
"electronic data message" and "electronic
document," as defined under the Electronic
Commerce Act of 2000, do not include a facsimile
transmission and cannot be considered as
electronic evidence. It is not the functional
equivalent of an original under the original
document rule and is not admissible as electronic
evidence. (ibid.)
Accordingly, the congressional deliberations on
the Electronic Commerce Act show that when
Congress formulated the term "electronic data
message," it intended the same meaning as the
term "electronic record" in the Canada law which
excludes telexes or faxes, except computer-
generated faxes from the term, "electronic data
message." (ibid.)
The Court explained that 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 fax
transmission not electronic evidence. (ibid.)
Admissibility of a Duplicate
General Rule Exceptions
A duplicate is (1) When a genuine
admissible to question is raised as
the same to the authenticity of
extent as an the original, or
original. (2) 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 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).
3. SECONDARY EVIDENCE
Meaning of Secondary Evidence
Secondary evidence refers to evidence other
than the original document itself. It is admissible
only when the best evidence is lost or
inaccessible.
Secondary evidence of the contents of a written
instrument or document refers to evidence other
than the original instrument or document itself.
(Edsa Shangri-La Hotel and Resort, Inc. v. BF
Corp., G.R. Nos. 145842 & 145873, June 27,
2008)
712

When and How Secondary Evidence May Be
Admitted
It is axiomatic that before a party is allowed to
adduce secondary evidence to prove the contents
of the original of a deed or document, the party
has to prove with the requisite quantum of
evidence, the loss or destruction or unavailability
of all the copies of the original of the said deed
or document. (Ebreo vs. Ebreo, G.R. NO. 160065,
February 28, 2006)
(1) When original document is unavailable
(2) When original document is in adverse party's
custody or control
(3) When the original consists of numerous
accounts;
(4) Evidence admissible when original document
is a public record.
First Situation: When original document is
unavailable
Section 5, Rule 130 of the ROC allows the
presentation of secondary evidence when the
original document has been lost or destroyed and
its unavailability has been duly established. In
such a case, a party "may prove its contents by a
copy or by a recital of its contents in some
authentic document, or by the testimony of
witnesses in the order stated. (Heirs of Bagaygay
v. Heirs of Paciente, G.R. No. 212126, August 4,
2021, J. Hernando)
Secondary evidence, like a copy of the original, is
admissible as an exception if the original writing
has been lost, estroyed or cannot be produced in
court without bad faith on the part of the party
offering the secondary evidence. This exception
does not only cover loss or destruction but also
other reasons for the failure to produce the
original in court even if the original is not lost or
destroyed, as when the original is beyond the
territorial jurisdiction of the court. (Riano,
Evidence [The Bar Lecture Series], 2022 Ed., pp.
174-175).
Requisites for the introduction of secondary
evidence in case of loss, destruction, or
unavailability of the original
Before a party is allowed to adduce secondary
evidence to prove the contents of the original, it
is imperative that the offeror must prove:
(1) the existence or due execution of the
original;
(2) the loss and destruction of the original or the
reason for its non-production in court; and
(3) on the part of the offeror, the absence of bad
faith to which the unavailability of the
original can be attributed. (Republic v.
Cuenca, G.R. No. 198393, April 4, 2018)
(4) The offeror must show that due diligence
had been exercised in searching for it
(Citibank vs. Teodoro, G.R. No.
150905, September 23, 2003).
Accordingly, 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 (Republic v.
Cuenca, G.R. No. 198393, April 4, 2018)
Secondary evidence:
The offeror may prove the contents on the
original document:
(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: 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
713
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)
Failure to prove loss of all the originals without
fault of the offeror renders secondary evidence
inadmissible (ibid.)
Second Situation: When original document is in
adverse party's custody or control
Requisites for the introduction of secondary
evidence when the original is in the custody or
control of the adverse party, or cannot be
obtained by local judicial processes or procedures
A showing that the original document is in the
custody or under the control of the adverse party
does not ipso facto authorize the introduction of
secondary evidence to prove its contents. The
party who seeks to present secondary evidence
must first lay the basis for its introduction. Laying
the basis requires proof of the following:
(1) that the original exists;
(2) that said document is under the custody or
control of the adverse party;
(3) that the proponent of secondary evidence
has given the adverse party reasonable
notice to produce the original document;
and
(4) that the adverse party failed to produce the
original document despite the reasonable
notice, or
(5) that the original cannot be obtained by local
judicial processes or procedures. (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).
Secondary evidence:
If the original is not available, the same may be
substituted by presenting the following in the
order stated:
(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.” The order does not apply
where the law specifically provides for the class
or quantum of secondary evidence to establish
the contents of the document.
Third Situation: When the original consists of
numerous accounts;
Requisites for the introduction of secondary
evidence when the original consists of numerous
accounts
(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.
Secondary evidence:
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:
(1) chart;
(2) summary; or
714
 (3) 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).
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 when
original document is a public record.
Requisites for the introduction of secondary
evidence when the original document is a public
record
There are instances when the original of a
document is a public record or is recorded in a
public office (Sec. 3[d], Rule 130, Rules of Court).
Public records are generally not to be removed
from the places where they are recorded and kept
(Sec. 26, Rule 132, ibid.). For this reason, the
proof of the contents of a document which forms
part of a public record may be done by secondary
evidence. (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 180).
Secondary evidence:
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.
Certified true copies of the cadastral map of Liliw
and the corresponding list of claimants of the
area covered by the map were presented by two
public officers. The first was Crisostomo Arves,
Clerk III of the Municipal Assessor's Office, a
repository of such documents. The second was
Dominga Tolentino, a DENR employee, who, as a
record officer, certifies and safekeeps records of
surveyed land involving cadastral maps. The
cadastral maps and the list of claimants, as
certified true copies of original public records, fall
under the exception to the best evidence rule
(Dimaguila vs. Sps. Monteiro, GR No. 201011,
January 27, 2014).
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).
4. PAROL EVIDENCE
Meaning of Parole Evidence Rule
Parol Evidence is any 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).
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 parol evidence rule forbids any addition to,
or contradiction of, the terms of a written
715
agreement by testimony or other evidence
purporting to show that different terms were
agreed upon by the parties, varying the purport
of the written contract. (Mancol, Jr. v.
Development Bank of the Philippines, G.R. No.
204289, November 22, 2017)
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).
Requisites for the Applicability of Parol
Evidence Rule
(1) There must be a Valid contract;
(2) The terms of the agreement must be
reduced into Writing;
(3) The agreement is between the parties and
their successor in interest;
(4) There is a dispute as to the terms of said
agreement (M. De Leon, Remedial Law
Reviewer-Primer, 2021 Edition, p. 965)
Application of the Parol Evidence Rule to
parties and their successors in interest
The Parol Evidence when the issues in the
litigation are the terms of a written agreement.
Note: The term “agreement” includes wills.
The Parol Evidence Rule applies to "the parties
and their successors in interest." Conversely, it
has no application to a stranger to a contract.
For purposes of the Parol Evidence Rule, a
person who claims to be the beneficiary of an
alleged stipulation pour autrui in a contract (such
as petitioners) may be considered a party to that
contract. (Heirs of Pacres v. Heirs of Ygoña, G.R.
No. 174719, May 5, 2010)
Moreover, to preclude the application of Parol
Evidence Rule, it must be shown that "at least
one of the parties to the suit is not party or a
privy of a party to the written instrument in
question and does not base a claim on the
instrument or assert a right originating in the
instrument or the relation established thereby
(Heirs of Pacres v. Heirs of Ygoña, G.R. No.
174719, May 5, 2010)
General It is elementary that when the
Rule terms of an agreement have
been reduced to writing, it is
considered as containing all the
terms agreed upon and there
can be no evidence on such
terms other than the contents of
the written agreement. Further,
when the terms of the contract
are clear and leave no doubt
upon the intention of the
contracting parties, the
stipulations of the parties are
controlling. (Industrial
Personnel and Management
Services, Inc. vs. Country
Bankers Insurance Corporation,
G.R. No. 194126, October 17,
2018)
The Parol Evidence Rule 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:
716
 (1) An Intrinsic ambiguity, put in issue in in issue in the
mistake or imperfection in the proponent’s
the written agreement; proponent’s verified
(2) Failure of the written
verified pleading.
agreement to express the
true intent and agreement pleading.
of the parties; (Tan, Evidence, A Compendium for the Bar, 2019
(3) Validity of the written Ed., p. 305)
agreement; or
(4) The Existence of other Requisites in order that mistake will be an
terms agreed to by the exception under the parol evidence rule
parties or their successors
In order that mistake will be an exception to the
in interest after the
execution of the written parol evidence rule it must comply with the
agreement. following requisites to wit:
(Rule 130, Sec. 10) i. The mistake should be of a Fact and not a
mistake of law;
(1) An Intrinsic ambiguity, mistake or ii. The mistake should be Common to both
imperfection in the written agreement; parties to the instrument; and
iii. The mistake should be proved by Clear and
Intrinsic or Extrinsic Intermediate convincing evidence
Latent or Patent Ambiguity (Tan, Evidence, A Compendium for the Bar, 2019
Ambiguity Ambiguity Ed., p. 306)
When the When the When the
writing, on its ambiguity is words in the (2) Failure of the written agreement to express
face appears apparent on writing are all the true intent and agreement of the
clear and the face of sensible and parties;
unambiguous the writing have settled
, BUT there itself and meaning, but Parol evidence is competent and
are collateral requires admit of two admissible in support of allegations that an
matters or something interpretations instrument in writing, purporting on its
circumstance to be added according to face to transfer the title with a mere right
s which in order to subject matter to repurchase under specific conditions
makes the ascertain in reserved to the vendor, was in truth and in
meaning the meaning contemplation fact given merely as a security for the
uncertain or of the word. of the parties. repayment of loan (Madrigal vs. Court of
the writing Appeals, G.R. No. 142944, April 15, 2005).
admits two
constructions Similarly, parol evidence is admissible to
Curable by Cannot be Curable by show that an endorsement was made
evidence cured by evidence wholly without consideration and, and, that
aliunde or evidence aliunde or in making it, the endorser acted as agent
extraneous aliunde extraneous for the endorsee and as mere vehicle for
evidence as evidence as the transfer of the naked title from the
long as such long as such maker to the endorsee (Maulini vs.
ambiguity is ambiguity is put

717
 Serrano, G.R. No. L-8844, December 16,
1914).
(3) Validity of the written agreement; or
Parol Evidence Rule does not apply where
the purpose of parol evidence is to show
that no written contract ever existed
(Maulini vs. Serrano, G.R. No. L-8844,
December 16, 1914).
The operation of the parol evidence rule
requires the existence of a valid written
agreement. It is, thus, not applicable in a
proceeding where the validity of such
agreement is the fact in dispute, such as
when a contract may be void for lack of
consideration (Heirs of Policronio M. Ureta,
Sr. vs. Heirs of Liberato M. Ureta, G.R. No.
165748, September 14, 2011).
Inducement by fraud may be proved by
parol because it goes into the validity of
the agreement (Woodhouse vs. Halili, 93
Phil. 526, July 31, 1953).
(4) 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 Collateral Oral Agreement
A contract made prior to or contemporaneous
with another agreement and if oral and not
inconsistent with written contract, 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;
(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.
Rule on Conditional Agreements
Conditions Precedent Conditions
Subsequent
may be established by parol may NOT be
evidence because there is established by
no varying of the terms of parol evidence
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
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, February 01, 1915).
Rule on Subsequent Agreements
The rule forbidding the admission of parol or
extrinsic evidence to altar, vary, or contradict a
written instrument does NOT apply so as to
prohibit the establishment by parol of an
agreement between the parties in writing,
entered into subsequent to the time when the
written instrument was executed,
notwithstanding such agreement may have the
effect of adding to, changing, modifying, or even
718
altogether abrogating the contract of the parties
as evidenced by the writing; for the parol
evidence does not in any way deny that the
original agreement of the parties was that which
the writing purports to express, but merely goes
to show that the parties have exercised their right
to change or abrogate the same, or to make a
new and independent contract. It makes no
difference how soon after the execution of the
written contract the parol one was made. If it was
in fact subsequent and is otherwise
unobjectionable it may be proved and
enforced. (Canuto v. Mariano, G.R. No. L-11346,
March 21, 1918)
Rule on Trusts on Immovables
Express Trusts on Immovables cannot be proved
by parol evidence (Art. 1443, NCC).
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 waiver of the
protection of the parol evidence rule (Santiago vs.
CA, G.R. No. 103959, August 21, 1997).
Probative Value
Even if parol evidence is admitted, such
admission would not mean that the court would
give probative value to the parol evidence.
Admissibility is not equivalent of probative value
or credibility (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 195).

An implied trust is neither dependent upon an Original Document Rule and Parol Evidence
express agreement nor required to be evidenced Rule, Distinguished
by writing. Article 1457 of our Civil Code
authorizes the admission of parol evidence to Original Document Parol Evidence
prove their existence. Parol evidence that is Rule Rule
required to establish the existence of an implied Applies to all Applies only to written
trust necessarily has to be trustworthy and it documentary contracts (except
evidence wills).
cannot rest on loose, equivocal or indefinite
Original is NOT Original is available in
declarations (Tong vs. TiatKun, G.R. No. 196023, available in court court
April 21, 2014). Rule of preference, Rule of exclusion:
i.e., secondary parol or extrinsic
Rule on Statute of Frauds evidence may be evidence barred
offered if foundation
If the agreements are NOT in writing and for introduction laid
Purpose of the Purpose of the parol
subscribed under Art. 1403, NCC, it is
secondary evidence is evidence is to modify,
unenforceable and evidence thereof is to prove the contents explain, or alter the
inadmissible, unless there is: of a written document terms of the written
(a) Failure to object to the presentation of oral contract.
evidence; or Bars any proponent Does not bar a
(b) Acceptance of benefit under the agreement. even if he is not a proponent who is not
(Estate of Bueno v. Estate of Peralta, G.R. No. party to the document a party to the written
205810, September 9, 2020) contract.

Waiver of the Parole Evidence Rule

719
 Can be invoked by Can be invoked only particular thing at a particular
non-parties to the by a party to the time and place. (Subingsubing
document written contract. vs. Cebu Velez General
(Riguera, Primer-Reviewer on Remedial Law, Hospital, 42485-R, November
2022 Ed., p. 710) 17, 1971)
Expert It is a testimony of a witness
Testimony on a matter requiring special
Principle of “falsa demonstratio non nocet
knowledge, skill, experience
cum de corpore constat" or training which he shown to
possess, which may be
It is a rule which states that where there are two received in evidence. (Sec.
descriptions in a deed, the one as it were, super 49, Rule 130)
added to the other, and one description being Negative Testimony of one present that
complete and sufficient in itself, and the other Testimony he did not see or hear that
which is claimed to have
which is subordinate and super added is
occurred. (Eisma vs. Ocampo,
incorrect, the incorrect description or feature or CR-02381, May 29, 1986)
circumstance of the description is rejected as a Positive Testimony of one present that
surplusage, and the complete and correct Testimony he did see or hear that which
description is allowed to stand alone. (Tan, is claimed to have occurred.
Evidence, A Compendium for the Bar, 2019 Ed., (Eisma vs. Ocampo, CR-
p. 305) 02381, May 29, 1986)
False It is a false declaration under
Testimony oath against a person
F. TESTIMONIAL EVIDENCE
knowing it to be false which
may result to conviction,
Testimonial or oral evidence is evidence elicited acquittal, or liability.
from the mouth of a witness as distinguished Self- An extra judicial statement of
from real and documentary evidence (Black's Law serving a party, favorable to him,
Dictionary, 5th Ed., p. 1323). It is sometimes Testimony which is being urged for
admission to court during the
called viva voce evidence which literally means
trial of the case. (Somaco vs.
"living voice" or by word of mouth. In this kind of Angelo, 64 O.G. 13154)
evidence, a human being is called to the stand, is Hearsay Testimony offered against a
asked questions, and answers the questions Testimony party who had no opportunity
asked of him. The person who gives the to examine the witness.
testimony is called a "witness." (Riano, Evidence (People of the Philippines vs.
[The Bar Lecture Series], 2022 Ed., p. 215) Caballero, 24059-CR, June 13,
1964)
(Tan, Evidence, A Compendium for the Bar, 2019
Testimony - A declaration made by a witness
Ed., pp. 14-15)
under oath or affirmation (People vs. Tolentino, 2
OG, 685; Moreno, Philippine Law Dictionary, 3rd
1. QUALIFICATION OF WITNESSES
Ed., p. 945)

Witness is a person called in a judicial or similar

Kinds of Testimonies
proceeding to give testimony under oath. (ibid.)

Affirmative The testimony of a witness

Kinds of Witnesses
Testimony that he saw or heard or did a

720

Competent is a witness who is not legally
Witness disqualified from testifying in
courts of justice, by reason of
mental incapacity, interest on
the commission of crimes, or
other cause excluding him
from testifying generally, or
rendering him incompetent in
respect of the particular
subject matter, or in the
particular suit. (Molo-Peckson
vs. Tanchuco, 100 Phil. 351)
Incompete Is a witness who is disqualified
nt Witness from testifying in courts of
justice, by reason of mental
incapacity, interest on the
commission of crimes, or other
cause excluding him from
testifying generally, or
rendering him incompetent in
respect of the particular
subject matter, or in the
particular suit.
Biased A witness who tends to
Witness exaggerate. Although he may
be honest, he cannot, while
human nature remains
unchanged, overcome to
distort, magnify or even
minimize as his interest
persuades, the incidents he
relates. (People vs. Coderes,
L-32509, April 27, 1981)
Character — A witness, as in the petition
Witness for naturalization (Sec. 7,
Corn. Act 473, as amended)
who testifies, being a Filipino,
that he personally knows the
petitioner to possess the
residence requirement, good
reputation, integrity,
qualifications and none of the
disqualifications to be a citizen
of the Philippines. (Gonzales
vs. Court ofAppeals, L-37453,
May 25, 1979)
Credible Onewhosetestimonyisworthyo
Witness f credit and belief. (Lee vs.
Secretary of Labor, 39 O.G.
1051)
Honest is a witness who gives truthful
Witness testimony.
Dishonest A witness who professes to
Witness remember things upon which
he cannot readily contradict
and who declares that he
forgets those upon he would
be open to contradiction.
Instrument A witness who does not merely
al Witness attest to the signature of the
testator, but also to the proper
execution of the will. (Cuevas
vs. Achacoso, 88 Phil. 730)
Plausible A witness who recreates the
Witness emotion at the time of the
original incident. (People of
the Philippines vs. Valdemoro,
16159-CR, July 30, 1979)
State An accomplice who gives
Witness evidence in criminal
proceeding, usually in the
expectancy of lighter
punishment or pardon.
Child Is any person who at the time
Witness of giving testimony is below
the age of 18 years. In child
abuse cases, a child includes
one over 18 years but is found
by the court as unable to fully
take care of himself or protect
himself from abuse, neglect,
cruelty, exploitation, or
discrimination because of a
physical or mental disability or
condition. (Sec.4[a] Rule on
Examination of a Child
Witness, A.M. No. 004-07-SC,
December 15, 2000)
Expert A person who by study or
Witness experience has acquired
particular knowledge or
experience upon matters of
technical knowledge and skill
relating to a specific business
or employment. (Dilag 86 Co.
vs. Merced, 45 O.G. 5542)
Hostile witness who manifests so
Witness much hostility or prejudice or
721
 prejudice under examination vs. Judge Florendo, G.R. No. L-68680, October 9,
in chief that the party who has 1987; cited in People vs. Esugon, G.R. No.
called him, or representative, 195244, June 22, 2015)
is allowed to cross-examine
him. (Black's Law Dictionary,
When Determined
Fifth Edition, p. 376)
Qualified is a witness who can perceive,
Witness perceiving; and can make Qualification of a witness is determined at the
known their perception to time the said witness is produced for examination
others, and possess all the or at the taking of his deposition. (Rule 130, Sec.
qualification and none of the 21)
disqualification.
Disqualified is a witness who is excluded by
With exceptions provided in the Rules of Court,
Witness law or the rules to give
testimony. all persons who can perceive, and perceiving, can
(Tan, Evidence, A Compendium for the Bar, 2019 make known their perception to others, may be
Ed., pp. 16-18) witnesses. That is even buttressed by the Rule on
Examination of a Child Witness which specifies
Qualification that every child is presumed qualified to be a
witness. To rebut this presumption, the burden of
General Rule Exception proof lies on the party challenging the child's
All persons who can Unless the law or the competence. Only when substantial doubt exists
perceive, and Rules render a person regarding the ability of the child to perceive,
perceiving, can make disqualified from remember, communicate, distinguish truth from
known their being a witness. falsehood, or appreciate the duty to tell the truth
perception to others,
in court will the court, motu proprio or on motion
may be witnesses.
of a party, conduct a competency examination of
(Rule 130, Sec. 21)
a child. Thus, petitioners’ flimsy objections on
Rachel’s lack of education and inability to read
NOTE:
and tell time carry no weight and cannot
As the rules show, anyone who is sensible and
overcome the clear and convincing testimony of
aware of a relevant event or incident, and can
Rachel as to who killed her father (People of the
communicate such awareness, experience, or
Philippines vs. Ibañez, G.R. No. 197813,
observation to others can be a witness.
September 25, 2013).
Age, religion, ethnicity, gender, educational
An intellectually disabled person is not, solely by
attainment, or social status are not necessary to
this reason, ineligible from testifying in court. "He
qualify a person to be a witness, so long as he
or she can be a witness, depending on his or her
does not possess any of the disqualifications as
ability to relate what he or she knows." If an
listed in the rules.
intellectually disabled victim's testimony is
coherent, it is admissible in court (People vs.
The generosity with which the Rules of Court
Corpuz, G.R. No. 226679, August 15, 2017).
allows people to testify is apparent, for religious
beliefs, interest in the outcome of a case, and
conviction of a crime unless otherwise provided
by law are not grounds for disqualification. (Cavili

722
Competency vs. Credibility of a Witness Child Witnesses

Competency of a Credibility of the A child witness to be a competent witness must

Witness Witness possess the following at the time of the giving of
Refers to qualification Refers to the weight his testimony:
of a witness as to his and trustworthiness (1) Capacity to comprehend the obligation of his
capacity to perceive or reliability of the the oath
and to communicate testimony. (2) Capacity to receive correct impressions
(3) Capacity to relate to those facts truly to the
his perception.
court at time he is offered as a witness (Tan,
A matter of law and of Refers to the Evidence, A Compendium for the Bar, 2019
rules believability of the Ed., p. 328)
witness and has
nothing to do with the 2. DISQUALIFICATION OF WITNESSES
law or the rules.
(M. De Leon, Remedial Law Reviewer-Primer, Persons Disqualified to be A Witness:
2021 Edition, p. 985)
(1) Persons disqualified by reason of marriage
Credibility of a Witness or the “Marital Disqualification Rule”(Rule
130, Sec. 23, as amended); and
(2) Persons disqualified on ground of privileged
A witness' credibility is ascertained by considering
communication (Rule 130, Sec. 24, as
the first two factors, i.e., the witness' opportunity amended);
to view the malefactor at the time of the crime
and the witness' degree of attention at that time, The specific enumeration of disqualified
based on conditions of visibility and the extent of witnesses excludes the operation of causes of
time, little and fleeting as it may have been, for disability other than those mentioned in the
the witness to be exposed to the perpetrators, Rules. It is a maxim of recognized utility and merit
peruse their features, and ascertain their identity in the construction of statutes that an express
(People vs. Nunez, G.R. No. 209342, October 4, exception, exemption, or saving clause excludes
2017) other exceptions. As a general rule, where there
are express exceptions, these comprise the only
Test of Competency limitations on the operation of a statute and no
other exception will be implied. The Rules should
Whether the individual has sufficient not be interpreted to include an exception not
understanding to appreciate the nature and embodied therein (Marcos vs. Heirs of Navarro,
obligation of an oath, and sufficient capacity to G.R. No. 198240, July 3, 2013).
observe and describe the facts in regard to which
he is called to testify. There is no provision of the Rules disqualifying
parties declared in default from taking the
Voir dire Examination is a preliminary witness stand for non-disqualified parties (Marcos
examination conducted by the trial judge where vs. Heirs of Navarro, G.R. No. 198240, July 3,
the witness is duly sworn to answer as to his 2013).
competency. This is conducted by asking leading
questions.

723
Notable Changes Brought About by the NOT grounds for disqualification (Rule 130,
2019 Amendments: Sec. 21, as amended):
(1) Religious belief;
(1) Disqualification by reason of mental (2) Political belief;
incapacity or immaturity (formerly Rule 130, (3) Interest in the outcome of the case; or
Sec. 21) has been deleted; and (4) Conviction of a crime, unless otherwise
(2) Disqualification by reason of death or provided by law.
insanity of adverse party or the “Dead Man’s
Statute (formerly Rule 130, Sec. 23) has General A person convicted of a crime is
been modified. The party or assignor of a Rule NOT disqualified to be a
party or a person in whose behalf a case is witness.
prosecuted can testify subject to Hearsay Exception When otherwise provided by
Rule; law:
(1) Under Art. 821 of the Civil
Code, a person convicted of
any of the following crimes
Absolute Relative cannot be a witness to a will:
Disqualification Disqualification (a) Falsification of
documents;
Objections based on Objections based on
(b) Perjury; or
absolute relative (c) False testimony
disqualifications may disqualifications may (2) A state witness must not
be raised upon the be raised when it have been convicted of any
calling of the becomes apparent crime involving moral
disqualified witness. that the subject turpitude (Rule 119, Sec. 17
matter of the [e]).
testimony covers
When to Raise Objection to Competency
inadmissible matters.
Objection to the offer of evidence must be orally
(1) Cannot perceive (1) Marital
(Rule 130, Sec. communication immediately after the offer is made (Rule 132,
20); privilege (Rule Sec. 36, as amended).
(2) Cannot make 130, Sec. 24[a]);
known their (2) Attorney-client The acceptance of an incompetent witness to
perception to privilege (Rule testify in a civil suit, as well as the allowance of
others (Rule 130, 130, Sec. 24[b], as improper questions that may be put to him while
Sec. 20); amended);
on the stand is a matter resting in the discretion
(3) Marital (3) Physician/Psychot
disqualification herapist -Patient of the litigant. He may assert his right by timely
(Rule 130. Sec. Privilege (Rule objection or he may waive it, expressly or by
22); and 130, Sec. 24[c], as silence. In any case the option rests with him.
(4) Parental and filial amended); Once admitted, the testimony is in the case for
privilege (Rule (4) Minister/Priest- what it is worth and the judge has no power to
130, Sec. 25). Penitent Privilege
disregard it for the sole reason that it could have
(Rule 130, Sec.
24[d]); and been excluded, if it had been objected to, nor to
(5) State Secrets (Rule strike it out on its own motion. (Maunlad Savings
130, Sec. 24[e]). and Loan Association v. Court of Appeals, G.R.
No. 114942, November 27, 2000)

724

a.) DISQUALIFICATION BY REASON OF
MARRIAGE (MARITAL DISQUALIFICATION
RULE)
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.
General During their marriage, the
Rule husband or the wife cannot
testify against the other without
the consent of the affected
spouse.
Exception (1) In a civil case by one against
the other;
(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.
Requisites:
(1) There must be a valid marriage between the
husband and wife;
(2) There is a communication received in
confidence by one from the other; and
(3) The confidential communication was
received during the marriage (M. De Leon,
Remedial Law Reviewer-Primer, 2021
Edition, p. 988)
Purpose
To preserve the harmony, peace and tranquility
of the marital relation.
The act of Maximo in setting fire to the house of
his sister-in-law Susan Ramirez, knowing fully
well that his wife was there, and in fact with the
alleged intent of injuring the latter, is an act
totally alien to the harmony and confidences of
marital relation which the disqualification
primarily seeks to protect. The criminal act
complained of had the effect of directly and vitally
impairing the conjugal relation. It underscored
the fact that the marital and domestic relations
between her and the accused-husband have
become so strained that there is no more
harmony, peace or tranquility to be preserved.
The Supreme Court has held that in such a case,
identity is non-existent. In such a situation, the
security and confidences of private life which the
law aims to protect are nothing but ideals which
through their absence, merely leave a void in the
unhappy home. (People v. Castañeda, 271 SCRA
504). Thus, there is no longer any reason to apply
the Marital Disqualification Rule. (Alvarez v.
Ramirez, G.R. No. 143439, October 14, 2005)
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 the other
(ibid.)
Example of offenses which impair conjugal
relation:
725
(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. Daquigan this Court held that the rape
committed by the husband of the witness-wife
against their daughter was a 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).
May be waived
Marital priviledge 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)
726
b.) DISQUALIFICATION BY REASON OF The communication shall remain privileged, even
PRIVILEGED COMMUNICATION in the hands of a third person who may have
obtained the information, provided that the
Privileged Other privileged original parties to the communication took
communications matters that are not reasonable precaution to protect its
mentioned by Rule confidentiality (Rule 130, Sec. 24, last
130 paragraph).
(1) Husband and (1) Editors may not be
Wife (Rule 130, compelled to
Sec 24[a]); disclose the source General There is a presumption of
(2) Attorney and of published news; Rule confidentiality on all
Client (Rule 130, (2) Voters may not be communications between
Sec. 24[b], as compelled to husband and wife.
amended); disclose for whom Exceptions (a) In a civil case by one against
(3) Physician and they voted (B.P. No. the other;
Patient (Rule 881, Sec. (b) In a criminal case for a crime
130, Sec.24[c], 261[z][5]); committed by one against
as amended); (3) Information the other or the latter's
(4) Minister/Priest contained in tax direct descendants or
and Penitent census returns; and ascendants;
(Rule 130, Sec. (4) Bank deposits (Air (c) When the communication
24[d], as Philippines was not intended to be kept
amended); and Corporation vs. in confidence, like the
(5) Public Officers Pennswell, Inc., G.R. husband’s dying declaration
and Third No. 172835, for instance (U.S. vs.
Person (Rule December 13, Antipolo, GR No. L-13109,
130, Sec. 24[e], 2007); March 6, 1918); or
as amended). (5) National security (d) Where the spouse-litigant
matters and gives consents to the
intelligence testimony.
information.
Note: The marital privilege rule, being a rule of
i. Marital Privilege Rule evidence, may be waived by failure of the
claimant to object timely to its presentation or by
The husband or the wife, during or after the any conduct that may be construed as implied
marriage, cannot be examined without the consent (Lacurom vs. Jacoba, A.C. No. 5921,
consent of the other as to any communication March 10, 2006).
received in confidence by one from the other
during the marriage except in a civil case by one Requisites:
against the other, or in a criminal case for a crime (1) There must be a Valid marriage between
committed by one against the other or the latter's husband and wife;
direct descendants or ascendants (Rule 130, Sec. (2) There is communication received in
Confidence by one from the other;
24[a]).
(3) The confidential communication was
received During the marriage;

727
 Note: Since the application of the rule Marital Disqualification vs Marital Privilege
requires a confidential information received Rule
by one spouse from the other during the
marriage, information acquired by a spouse MARITAL MARITAL
before the marriage, even if received DISQUALIFICATION PRIVILEGE
confidentially, will not fall squarely with the (Rule 130, Sec. 23) (Rule 130, Sec. 24)
provisions of Sec. 24(a) of Rule 130. Absolute disqualification Relative
However, divulging the same may be disqualification
objected to under Sec. 22 of Rule 130 upon A blanket disqualifica- The privilege applies
proper objection as long as the information tion of a spouse from only to confidential
is sought to be revealed during the marriage testifying for or against communications.
through a testimony for or against the the other.
affected spouse. (Riano, Evidence [The Bar Effective only during the Effective during and
Lecture Series], 2022 Ed., p. 233) existence of the after the marriage.
(4) The spouse against whom such evidence is marriage.
being offered has not given his or her Can be invoked only if May be invoked
Consent to such testimony.
one of the spouses is a whether or not a
(5) The case is not one of the Exceptions
provided in the rule(Rule 130, Sec. 24 [a]). party to the action. spouse is a party to
the action.
The law insures absolute freedom of The married witness The married person is
communication between the spouses by making would not be allowed to on the stand but the
it privileged. Neither husband nor wife may testify take the witness stand objection of privilege
for or against the other without the consent of at all. Even if the testi- is raised when the
the affected spouse while the marriage subsists. mony is, for or against confidential marital
Neither may be examined without the consent of the objecting spouse, communication is
the other as to any communication received in the spouse-witness inquired into.
confidence by one from the other during the cannot testify.
marriage, save for specified exceptions. But one (M. De Leon, Remedial Law Reviewer-Primer,
thing is freedom of communication; quite another 2021 Edition, p. 989)
is a compulsion for each one to share what one
knows with the other. And this has nothing to do ii. Attorney-Client Privilege.
with the duty of fidelity that each owes to the
other. (Zulueta vs. Court of Appeals, G.R. No. An attorney or person reasonably believed by the
107383, February 20, 1996). client to be licensed to engage in the practice of
law cannot, without the consent of the client, be
Communications overheard by third persons examined as to any communication made by the
without knowledge of spouses are still client to him or her, or his or her advice given
confidential between the spouses, and neither of thereon in the course of, or with a view to,
them can testify without the consent of the other professional employment, nor can an attorney's
(Francisco, Evidence 11th ed. p. 88). secretary, stenographer, or clerk, or other
persons assisting the attorney be examined
without the consent of the client and his or her
employer, concerning any fact the knowledge of

728
which has been acquired in such capacity,
except in the following cases:
(1) Furtherance of crime or fraud. If the
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 or fraud;
(2) Claimants through same deceased
client. As to a communication 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;
(3) Breach of duty by lawyer or client. As to
a communication 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;
(4) Document attested by the lawyer. As to
a communication relevant to an issue
concerning an attested document to which
the lawyer is an attesting witness; or
(5) Joint clients. As to a communication
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), as
amended].
Requisites:
Factors essential to establish the existence of
Attorney-Client Privilege
(1) There exists an attorney-client relationship, or
a prospective attorney-client relationship, and it
is by reason of this relationship that the client
made the communication.
Matters disclosed by a prospective client to a
lawyer are protected by the rule on privileged
communication even if the prospective client does
not thereafter retain the lawyer or the latter
declines the employment. The reason for this is
to make the prospective client free to discuss
whatever he wishes with the lawyer without fear
that what he tells the lawyer will be divulged or
used against him, and for the lawyer to be equally
tree to obtain information from the prospective
client.
(2) The client made the communication in
confidence.
The mere relation of attorney and client does not
raise a presumption of confidentiality. The client
must intend the communication to be
confidential.
A confidential communication refers to
information transmitted by voluntary act of
disclosure between attorney and client in
confidence and by means which, so far as the
client is aware, discloses the information to no
third person other than one reasonably necessary
for the transmission of the information or the
accomplishment of the purpose for which it was
given.
Our jurisprudence on the matter rests on
quiescent ground. Thus, a compromise
agreement prepared by a lawyer pursuant to the
instruction of his client and delivered to the
opposing party, an offer and counter-offer for
settlement, or a document given by a client to his
counsel not in his professional capacity, are not
privileged communications, the element of
confidentiality not being present.
(3) The legal advice must be sought from the
attorney in his professional capacity.
The communication made by a client to his
attorney must not be intended for mere
information, but for the purpose of seeking legal
advice from his attorney as to his rights or
obligations. The communication must have been
transmitted by a client to his attorney for the
purpose of seeking legal advice.
729
If the client seeks an accounting service, or
business or personal assistance, and not legal
advice, the privilege does not attach to a
communication disclosed for such purpose.
(Jimenez v. Francisco, A.C. No. 10548, December
10, 2014)
Note: The privilege extends to the attorney’s
secretary, stenographer, or clerk, or other
persons assisting the attorney concerning any
fact the knowledge of which has been acquired in
such capacity.
The phrase “with a view to” includes those
communication made during consultation
preparatory to professional employment. The
relationship between the attorney and the client
is said to exist where a person employs the
professional services of an attorney or seeks
professional guidance, even though the attorney
declines to handles the case.
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).
Rationale:
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. (Mabini
Colleges, Inc. v. Pajarillo, A.C. No. 10687, [July
22, 2015)
Duration of the privilege
The privilege will continue even after the
attorney-client relationship, or even after the
death of the client.
The termination of attorney-client relation
provides no justification for a lawyer to represent
an interest adverse to or in conflict with that of
the former client. The client's confidence once
reposed should not be divested by mere
expiration of processional employment. Even
after the severance of the relation, a lawyer
should not do anything which will injuriously
affect his former client in any natter in which he
previously represented him nor should he
disclose or use any of the client's confidences
acquired in the previous relation.
In addition, "the protection given to the client is
perpetual and does not cease with the
termination of the litigation, nor is it affected by
the party's ceasing to employ the attorney and
retaining another, or by any other change of
relation between them. It even survives the death
of the client." (Parungao v. Lacuanan, A.C. No.
12071, March 11, 2020, J. Hernando)
Work-Product Doctrine
The doctrine that the trial preparation materials
of a lawyer or his representative (e.g., paralegal,
investigator, etc.) are protected from discovery
unless the other party shows that it has a
substantial need for the materials to prepare its
case, and cannot, without undue hardship, obtain
their substantial equivalent by other means. Trial
preparation materials include written documents,
such as records, notes, memorandums, and
tangible things. If discovery will be allowed, the
court must protect against disclosure of the
730
mental impressions, conclusions, opinions, and
legal theories of the lawyer or his representative.
(See Rule 26(b)(3), Federal Rules of Civil
Procedure). The work- product doctrine is also
known as the work-product rule. It is not a
privilege but a special protective rule which limits
discovery of an attorney's work product.
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., pp. 755-756)
While the work-product doctrine is not expressly
recognized in Philippine law and jurisprudence, it
is submitted that it may be invoked in the
Philippines pursuant to S16 R23 on motion for
protective orders or to S18 R23 on motion to
terminate or limit examination. (Riguera, Primer-
Reviewer on Remedial Law, 2022 Ed., p.760)
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.

Distinguish the attorney-client privilege A psychotherapist is:

from the work-product doctrine. (a) A person licensed to practice medicine
engaged in the diagnosis or treatment of a
Attorney-Client Work-Product mental or emotional condition; or
privilege Doctrine (b) A person licensed as a psychologist by the
A privilege. Not a privilege but a government while similarly engaged (Rule
special protective rule 130, Sec. 24[c])
against discovery.
Based on confidential Extends to all trial A physician-patient relationship is created
communication preparation material when the professional services are rendered to
between client and of the lawyer even if and accepted by another for purposes of medical
attorney. not based on or surgical treatment. As such, it arises from, the
attorney-client moment a physician gives advice to a patient.
communication.
The physician-patient relationship is basically a
May not be overcome May be overcome by a
by a showing of showing of contractual relationship. Independently, liability
"substantial need" "substantial need" may also arise ex contractu because of the
and "undue and "undue contract between the doctor and the patient.
hardship." hardship." (De Jesus v. Uyloan, G.R. No. 234851, February
Applies broadly at all Operates primarily as 15, 2022)
stages of legal a limitation on pre-
proceedings. trial discovery.
Rationale:
(ibid.)
The rationale to include this privilege is that the
psychotherapist has a special need to maintain
confidentiality. His or her capacity to help his or
i. Physician/Psychotherapist–Patient
her patients is completely dependent upon their
Privilege

731
willingness and ability to talk freely.
Confidentiality is a condition sine qua non for a
successful psychiatric treatment.
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 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:
The following requisites must concur in order that
the privilege communication between doctor and
patient will apply:
(1) That the privilege is being claimed in civil
case;
(2) That the person against whom the privilege
is being claimed is a person duly authorized
to practice medicine, surgery, or obstetrics;
(3) That such person acquired the information
while he was attending to the patient in his
professional capacity;
(4) That the information is necessary to enable
the person to act in that capacity;
(5) That the information is confidential and if
disclosed would tend to blacken the
reputation of the patient (Tan, Evidence, A
Compendium for the Bar, 2019 Ed., p. 347)
When applicable
Privileged Communication between doctor and
patient applies to:
(a) Testimony of the physician on the witness
(b) Any affidavit, certificate, and medical
records of hospitals or asylum containing
privileged matters (ibid.)
When not applicable
(1) Communication was not given in confidence
(2) Communication was irrelevant to the
professional employment
(3) Communication was made for an unlawful
purpose
(4) Communication was intended for the
commission/concealment of a crime
(5) Communication was intended to be made
public/divulged in court
(6) When there was a waiver
(7) When the doctor was presented as an expert
witness and only hypothetical problems were
presented to him (Lim vs. C.A., G.R. No.
91114, September 25, 1992)
The physician-patient privilege is not violated by
permitting physician to give expert testimony
regarding hypothetical facts (ibid.)
Duration of the privilege
The privilege will apply not only during and after
the existence of physician and patient
relationship, but even after the death of the
patient. (ibid., p. 348)
The communication shall remain privileged, even
in the hands of a third person who may have
obtained the information, provided that the
original parties to the communication took
reasonable precaution to protect its
confidentiality (Rule 130, Sec. 24, last
paragraph).
iv. Priest–Penitent Privilege
A minister, priest or person reasonably believed
to be so cannot, without the consent of the
affected person, be examined as to any
communication or confession made to or any
advice given by him or her, in his or her
professional character, in the course of discipline
enjoined by the church to which the minister or
priest belongs [Rule 130, Sec. 24(d), as
amended].
732
 v. Public Officers and Third Person
Requisites: A public officer cannot be examined during or
(a) The confession must have been to the after his or her tenure as to communications
minister or Priest or person reasonably made to him or her in official confidence, when
believed to be so, in his professional the court finds that the public interest would
character
suffer by the disclosure [Rule 130, Sec. 24(e), as
(b) The communication or confession must be
made in the course of discipline Enjoined by amended].
the church to which her belongs; and
(c) The communication or confession made Requisites:
must be confidential and must be in (1) The communication must have been made
penitential character. (M. De Leon, Remedial to a public officer in confidence;
Law Reviewer-Primer, 2021 Edition, p. 994) (2) Public interest would suffer by the disclosure
of the communication. (M. De Leon,
Application When not applicable Remedial Law Reviewer-Primer, 2021
Covers only (a) When the penitent Edition, pp. 994-995)
confession of a consents
penitential (b) When third person Presidential communications privilege
character that is a overhearing the It was similarly held that secrets involving
confession of sins confession military, diplomatic, and national security
with the end view (c) The communication is
matters, and information on investigations of
of obtaining a not privileged in
crimes by law enforcement agencies before the
pardon and character or made to
spiritual advice a priest in a prosecution of the accused were exempted from
and assistance proffesional character the right to information. The right to information
(Tan, Evidence, A Compendium for the Bar, 2019 does not also extend to presidential
Ed., p. 349) conversations, correspondences, and discussions
in closed-door cabinet meetings (Senate of the
Note: The old provision limited the privilege to Phils. v. Ermita, G.R. Nos. 169777, 169659,
“penitential communications” made to a minister 169660, 169667, 169834 & 171246, [April 20,
or priest in the course of discipline enjoined by 2006 citing Chavez vs. Public Estates Authority,
the church to which the priest or minister G.R. No. 133520, July 9, 2002)
belongs. As worded, it is unduly preferential to
the Roman Catholic Church. The amendment Elements of Presidential communications
expands the privilege to embrace any confidential privilege:
communication by a person to a minister or priest (1) Must relate to a “quintessential and non-
in his professional character as a spiritual advisor. delegable presidential power;”
(2) Must be authored or “solicited and received”
by a close advisor of the President or the
The communication shall remain privileged, even
President himself; and
in the hands of a third person who may have (3) Privilege may be overcome by a showing of
obtained the information, provided that the adequate need such that the information
original parties to the communication took sought “likely contains important evidence”
reasonable precaution to protect its and by the unavailability of the information
confidentiality (Rule 130, Sec. 24, last elsewhere.
paragraph).
Members of the executive or cabinet
secretaries do not enjoy the presumption of

733
 privilege but the President does (Neri vs. confidentiality (Rule 130, Sec. 24, last
Senate, G.R. No. 180643 September 4, paragraph).
2008).
Duration of the privilege
At common law a governmental privilege against
disclosure is recognized with respect to state The privilege shall apply not only during the term
secrets bearing on military, diplomatic and similar of office of the public officer, but also afterwards
matters. This privilege is based upon public which makes it permanent. (Tan, Evidence, A
interest of such paramount importance as in and Compendium for the Bar, 2019 Ed., p. 351)
of itself transcending the individual interests of a
private citizen, even though, as a consequence Other Privileged Matters:
thereof, the plaintiff cannot enforce his legal
rights (Department of Foreign Affairs v. BCA (1) Newsman’s privilege
International Corp., G.R. No. 210858, June 29,
2016 citing Almonte vs. Vasquez, G.R. No. 95367, General Rule Exception
May 23, 1995). The publisher, editor, When the Court
columnist or duly or a House or
accredited reporter of any Committee of
In each case, the showing of necessity which is
newspaper, magazine or Congress finds
made will determine how far the court should periodical of general that such
probe in satisfying itself that the occasion for circulation cannot be revelation is
invoking the privilege is appropriate. Where compelled to reveal the demanded by the
there is a strong showing of necessity, the claim source of any news report security of the
of privilege should not be lightly accepted, but or information appearing State
in said publication which
even the most compelling necessity cannot
was related in confidence
overcome the claim of privilege if the court is
to such publisher, editor or
ultimately satisfied that military secrets are at reporter.
stake. A fortiori, where necessity is dubious, a (R.A. No. 53 as amended by R.A. No. 1477, Sec.
formal claim of privilege, made under the 1).
circumstances of this case, will have to prevail
(Ibid.). (2) Rule on Examination of Child Witness

Note: The Supreme Court clarified that the General Rule Exception
President or the Executive Secretary can invoke The guardian ad litem When the court
the executive privilege. Once invoked, then the shall not testify in any finds it necessary
Senate cannot compel the members of the proceeding concerning to promote the
any information, best interests of
executive to testify before it (Neri vs. Senate
statement, or opinion the child.
Committee, G.R No. 169777, April 20, 2006). received from the child in
the course of serving as a
The communication shall remain privileged, even guardian ad litem.
in the hands of a third person who may have (Sec. 5[e], A.M. NO. 004-07-SC)
obtained the information, provided that the
original parties to the communication took (3) Election Offenses Under the Omnibus
reasonable precaution to protect its Election Code

734
Voters may not be compelled to disclose for in the crime of terrorism shall be considered
whom they voted (Sec. 261[z][5], B.P. No. 881) confidential and shall not be unnecessarily
revealed until after the proceedings against the
(4) Secrecy of Bank Deposits suspect shall have been terminated.

General Rule Exception (6) Media Practitioner's Privilege

All deposits of (a) Upon written
whatever nature with permission of the Without prejudice to his liability under the civil
banks or banking depositor; and criminal laws, any publisher, owner, or duly
institutions in the (b) In cases of
recognized or accredited journalist, writer,
Philippines including impeachment;
investments in bonds (c) Upon order of a reporter, contributor, opinion writer, editor,
issued by the competent court columnist, manager, media practitioner involved
Government of the in cases of bribery in the writing, editing, production, and
Philippines, its or dereliction of dissemination of news for mass circulation, of any
political subdivisions duty of public print, broadcast, wire service organization, or
and its officials;
electronic mass media, including cable TV and its
instrumentalities, are (d) In cases where
variants, cannot be compelled to reveal the
hereby considered as the money
of an absolutely deposited or source of any news item, report or information
confidential nature invested is the appearing or being reported or disseminated
and may not be subject matter of through said media, which was related in
examined, inquired or the litigation (R.A. confidence to the abovementioned media
looked into by any No. 1405, Sec. 2); practitioners. (R.A. No. 11458).
person, government or
official, bureau or (e) In cases of
office. violation of the (7) Data Privacy Act
Anti-Money
Laundering Act, Personal information controllers may invoke the
the Anti-Money principle of privileged communication over
Laundering privileged information that they lawfully control
Council may or process. Subject to existing laws and
inquire into a bank regulations, any evidence gathered on privileged
account upon
information is inadmissible (Sec. 15, RA 10173)
order of any
competent court
(Doña Adela Export International, Inc. vs. RULE ON THIRD PARTIES
TIDCORP, G.R. No. 201931, February 11, 2015).
The communication shall remain privileged, even
Note: The privilege applies only to bank in the hands of a third person who may have
deposits. As to other property being held by a obtained the information, provided that the
bank, bank personnel may be examined upon original parties to the communication took
order of a court (Sec. 55.1[d], R.A. No. 8791) reasonable precaution to protect its
confidentiality. (S24 R130, 2020 Rules on
(5) Informant’s privilege Evidence). This is a significant new provision in
the 2020 Rules which overrides previous rulings
Under Section 51 of the Human Security Act, the that the communication shall lose its privileged
name and identity of an informant on a suspect character if it falls into the hands of a third

735
person. (Riguera, Primer-Reviewer on Remedial
Law, 2022 Ed., p.774) NOTE: A person, however, may
testify against his parents or
The communication shall also remain privileged if children voluntarily but if he
refuses to do so, the rule
there was collusion between one of the parties to
protects him from any
the privileged communication and the third party. compulsion. Said rule applies to
For documents of communication coming into both criminal and civil cases
the possession of a third person, a distinction since the rule makes no
should obtain, analogous to that already distinction. (Sec. 25, Rule 130,
indicated for a client's communications; i. e., if ROC, as amended)
Filial a child may not be compelled to
they were obtained from the addressee by
Privilege testify against his parents, or
voluntary delivery, they should still be privileged
Rule other direct descendants.
(for otherwise the privilege could by collusion be
practically nullified for written communications); The filial privilege rule applies
but if they were obtained surreptitiously or only to “direct” ascendants and
otherwise without the addressee's consent, the descendants, a family tie
privilege should cease.” (People v. Carlos, G.R. connected by a common
ancestry – thus, a stepmother
No. 22948. March 17, 1925).
can be compelled to testify
against stepdaughter
c. PARENTAL AND FILIAL PRIVILEGE RULE considering that they have no
(Rule 130, Sec. 25, as amended) common ancestry. (Lee vs.
Court of Appeals, G.R. No.
General Rule Exception 177891, 13 July 2010)
No person shall be Defendant may be
compelled to testify compelled to give Note: There is no distinction
against his or her testimony: between legitimate or
parents, other direct (1) In criminal case; illegitimate relations.
ascendants, (parental and such
privilege) children or testimony is This is a testimonial privilege, not a testimonial
other direct indispensable in a disqualification, found in Sections 22-24 of Rule
descendants (filial crime committed 130. Here, the witness is the holder of the
privilege) (Rule 130, against said privilege and has the power to invoke or waive
Sec. 25, as amended) defendant; or
the privilege. The relative against whom he is
(2) In crime
committed by one testifying cannot invoke nor waive the privilege.
parent against the However, this must be construed in the light of
other (Art. 215, Art. 215 of the Family Code, viz:
Family Code)
No descendant shall be compelled, in a
criminal case, to testify against his parents
Two Types of Privileges Under Sec. 25 and grandparents, except when such
Rule 130 testimony is indispensable in a crime
against the descendant or by one parent
Parental a parent cannot be compelled against the other.
Privilege to testify against his child or
Rule direct descenfants.

736
Hence, a descendant may be compelled to testify As to Civil and Criminal cases
in a criminal case where: Applicability criminal cases only
• The descendant-witness himself is the As to When such testimony is
victim; or, Exceptions indispensable in a crime against
• The descendant-witness’s parent commits a that person or by one parent
crime against the descendant-witness’s
against the other.
other parent.

The privilege is not strictly a rule on

disqualification because a descendant is not
incompetent or disqualified to testify against an d) PRIVILEGE RELATING TO TRADE
ascendant. This refers to a privilege not to testify, SECRETS
which can be invoked or waived like other
privileges (People vs. Invencion, G.R. No. A person cannot be compelled to testify about
131636, March 05, 2003). any trade secret, unless the non-disclosure will
conceal fraud or otherwise work injustice. When
Who can invoke disclosure is directed, the court shall take such
Note that the privilege is invoked not by the protective measure as the interest of the owner
person against whom a witness will testify but by of the trade secret and of the parties and the
the witness himself. In other words, under these furtherance of justice may require (Rule 130, Sec.
privileges a witness may not be compelled to 26).
testify against another. This is an exception to the
general rule that a witness may be compelled to General Rule Exception
testify against another. (Riguera, Primer- A person cannot be The non-disclosure
compelled to testify will conceal fraud or
Reviewer on Remedial Law, 2022 Ed., p.781)
about any trade otherwise work
secret. injustice.
Filial Privilege under Rules of Court and
Filial Privilege Under the Civil Code, A trade secret is a plan or process, tool,
Distinguished mechanism or compound known only to its owner
and those of his employees to whom it is
Rule 130 Art. 215 of necessary to confide.” The definition was held to
Sec.25, as Family Code extend to “a secret formula or process not
amended patented, but known only to certain individuals
As to Both parental Filial privilege using it in compounding some article of trade
Coverage and filial only. having a commercial value.” The Court went on
privilege. to explain that a trade secret may “consist of any
As to who A person may A descendant formula, pattern, device or compilation of
may not be not be may not be information that (1) is used in one’s business, and
compelled compelled to compelled to (2) gives the employer an opportunity to obtain
testify against testify against an advantage over competitors who do not
his ascendants his parents and possess the information (Air Philippines
or grandparents. Corporation vs. Pennswell, Inc. G.R. No. 172835,
descendants. December 13, 2007).

737
Generally, a trade secret is a process or device Confession is a categorical acknowledgement of
intended for continuous use in the operation of guilt made by an accused of the offense charged
the business, for example, a machine or formula, or any offense necessarily included therein (Rule
but can be a price list or catalogue or specialized 130, Sec. 34).
customer list. It is indubitable that trade secrets
constitute proprietary rights. The inventor, Admissions and Confession; Distingushed
discoverer, or possessor of a trade secret or
similar innovation has rights therein which may Admission Confession
be treated as property, and ordinarily an Admission is a Confession is an
injunction will be granted to prevent the statement of fact acknowledgment of
disclosure of the trade secret by one who which does not one's guilt or liability.
obtained the information "in confidence" or involve
acknowledgment of
through a "confidential relationship.” (ibid.)
fault or liability.
Admission may be Confession is always
NOTE: On the ground of public policy, the rules express or implied, express or tacit.
providing for the production and inspection of Admission is more of Confession is only
books and papers do not authorize the production a broader scope limited to the
or inspection of privileged matter; that is, books which includes confession of a
and papers which, because of their confidential confession. person.
and privileged character, could not be received in Admission may be Confession can only
made by any party. be made by the
evidence. Such a condition is in addition to the
accused.
requisite that the items be specifically described (Tan, Evidence, A Compendium for the Bar, 2019
and must constitute or contain evidence material Ed., p. 362)
to any matter involved in the action and which
are in the party’s possession, custody or control. NOTE: An admission, in general sense, includes
(ibid.) confessions, the former being a broader term
because, accordingly, a confession is also an
3. TESTIMONIAL PRIVILEGE “admission… by the accused of the fact charged
against him or of some fact essential to the
It is a privilege which consist of exempting a charge.” (4 Wigmore, Sec. 1050) A confession is
witness, having attended the court where his a specific type of admission which refers only to
testimony is desired, from disclosing a certain an acknowledgement of guilt. (Riano, Evidence
part of his knowledge. It is applicable in all types [The Bar Lecture Series], 2022 Ed., p. 279)
of cases. (Tan, Evidence, A Compendium for the
Bar, 2019 Ed., p. 356) ADMISSIONS

4. ADMISSIONS AND CONFESSIONS Classifications of Admissions:

Admission is any statement of fact made by a (1) Judicial Admissions

party against his interest or unfavorable to the - a judicial admission is a deliberate, clear,
conclusion for which he contends or is unequivocal statement of a party about a
inconsistent with the facts alleged by him. concrete fact within that party's peculiar
knowledge, not a matter of law. In order to

738
 constitute a judicial admission, the - are those made in definite, certain and
statement must be one of fact, not opinion. unequivocal manner.
To be a judicial admission, a statement must
be contrary to an essential fact or defense (b) Implied extrajudicial admissions
asserted by the person giving the - are those which may be inferred from
testimony; it must be deliberate, clear and the act, conduct, declaration, silence or
unequivocal. (Aquino v. Aquino, G.R. Nos. omission of a party
208912 & 209018, December 7, 2021)
Extrajudicial Admissions and Judicial
A judicial admission is one so made in Admissions; Distinguished
pleadings filed or in the progress of a trial as
to dispense with the introduction of evidence Extrajudicial Judicial
otherwise necessary to dispense with some Admissions Admissions
(Rule 130, Sec.27) (Rule 129, Sec. 4)
rules of practice necessary to be observed
Made outside of the Made in the course of
and complied with. (Estrada v. Desierto, G.R.
proceedings in the the proceedings in the
Nos. 146710-15 & 146738 (Resolution), April same case. same case.
3, 2001) Must be offered in Need not be offered in
evidence in order to evidence since they
(a) Formal judicial admissions be considered by the already form part of
- The rule is that the testimony on the court. the records.
witness stand partakes of the nature of May be given in May not be
a formal judicial admission when a evidence against the contradicted by the
admitter. admitter except by
party testifies clearly and unequivocally
showing that the
to a fact which is peculiarly within his admission was made
own knowledge (Republic vs. through palpable
Sandiganbayan, G.R. No. 152154, July mistake or that the
15, 2003). imputed admission
was not, in fact,
(b) Informal judicial admissions made. (Rule 129, Sec.
- are facts that are “incidentally” 4)
(Riguera, Primer-Reviewer on Remedial Law,
admitted during the judicial proceeding
2022 Ed., pp. 785-786)
and are simply regarded as a piece of
evidence that is not binding or
Admissions that are admissible against a
conclusive. Similar to any other form of
party:
evidence, informal admissions are
(1) Admissions of a party (Rule 130, Sec. 27);
subject to contradiction or explanation.
(2) Compromises (Rule 130, Sec. 28);
(3) Exceptions to Res Inter Alios Acta:
(2) Extrajudicial Admissions (a) Admissions by a co-partner, agent, joint
Extra-judicial admission is one made out of owner, joint debtor, or other person
court. (Estrada v. Desierto, G.R. Nos. jointly interested with the party
146710-15 & 146738 (Resolution), April 3, admissions (Rule 130, Sec. 30);
2001) (b) Co-conspirator’s statements (Rule 130,
Sec. 31);
(a) Express extrajudicial admissions

739
 (c) Admission by Privies (Rule 130, Sec. 32); (4) Must be Adverse to the admitter’s interest.
and Otherwise, it would be self-serving and
(d) Admission by Silence (Rule 130, Sec. 33) generally inadmissible.

Party Admissions and Declaration Against

Interest; Distinguished Self-serving Declarations

Party Admissions Declaration A self-serving declaration is a statement

Against Interest favorable to the interest of the declarant. It is not
Made by a party. Made by a non-party, admissible in evidence as proof of the facts
i.e., the declarant. asserted. "The vital objection to the admission of
Need not be against Must be against the
this kind of evidence is its hearsay character.
the admitter's declarant's interest.
interest. Furthermore, such declarations are
Not hearsay and thus Hearsay but untrustworthy; to permit their introduction in
admissible. admissible as an evidence would open the door to frauds and
exception to the perjuries." (Fitzsimmons v. Atlantic, Gulf & Pacific
hearsay rule. Co. of Manila, G.R. No. L-2016, August 23, 1949)
No requirement that The declarant must
the admitter is dead be dead or unable to
NOTE:
or unable to testify. testify.
Self-serving statements are inadmissible
Admissible only Admissible against
against the admitter. the declarant and because the adverse party is not given the oppo
third persons. rtunity for cross-examination, and their
(Riguera, Primer-Reviewer on Remedial Law, admission would encourage fabrication of
2022 Ed., p. 786) testimony. This cannot be said of a party’s
testimony in court made under oath, with
Admissions of a party full opportunity on the part of the opposing part
y for cross-examination. (People v. Omictin y
The act, declaration or omission of a party as to Singco, G.R. No. 188130, July 26, 2010)
a relevant fact may be given in evidence against
him or her (Rule 130, Sec. 27). Statements in affidavits are not sufficient to prove
the existence of agricultural tenancy. It is self-
His admission is, however, not admissible in his serving. It will not suffice to prove consent of the
favor because it would be self-serving evidence. owner. Independent evidence is necessary.
An admission may be in the form of: (Rodriguez vs. Salvador, G.R. No. 171972, 08
(1) An Act; June 2011)
(2) A Statement or declaration; or
(3) An Omission (Riguera, Primer-Reviewer on An admission against interest is the best evidence
Remedial Law, 2022 Ed., p. 787) which affords the greatest certainty of the facts
in dispute since no man would declare anything
Elements for an Admission to be
against himself unless such declaration is true.
Admissible:
Thus, an admission against interest binds the
(1) Must involve matters of Fact, not of law;
person who makes the same, and absent any
(2) Must be Categorical and definite;
(3) Must be Knowingly and voluntarily made; showing that this was made thru palpable
and, mistake, no amount of rationalization can offset

740
it. (Stanley Fine Furnitures, Elena and Carlos (Rule 130, Sec. 29, the same or a similar
Wang vs. Gallano, G.R. No. 190486, November as amended) thing at another time
26, 2014) (Rule 130, Sec. 35,
as amended).
Res Inter Alios Acta
NOTE: The rule only applied to extrajudicial
declarations. Hence, statements made in open
“Res inter alios acta alteri nocere non
court by a witness implicating persons aside from
debet”
him are admissible as declarations from one who
“Things done between strangers ought not to
has personal knowledge of the facts testified to.
injure those who are not parties to them.”
(Riano, Evidence [The Bar Lecture Series], 2022
Ed.,p. 288).
RATIO: This is founder on the principle of
good faith and mutual convenience —
The testimony of the accused against his co-
a man's own acts are binding upon himself or
accused in open court is considered as admissible
herself and are evidence against him or her.
testimony and not subject of the res inter alios
So are his or her conduct and declarations.
acta rule since such testimony is subject to cross
Yet it would not only be rightly inconvenient, but
examination.
also manifestly unjust, that a man or woman
should be bound by the acts of
Admission by a Third Party
mere unauthorized strangers. And if a party
ought not to be bound by the acts of strangers,
The rights of a party cannot be prejudiced by an
neither ought their acts or conduct be used as e
act, declaration, or omission of another. (Sec. 28,
vidence against him or her.
Rule 130, ROC, as amended)
(Piccio v. House of Representatives Electoral
Tribunal, G.R. No. 248985, October 5, 2021)
General The act, declaration or
Rule omission made out of court of
Among the exceptions to the res inter alios a party as to a relevant fact
acta rule are: may be given in evidence
(1) admission by third party, against him but may not be
(2) admission by co-partner or agent, given in evidence against
(3) admission by conspirator, and another person.
(4) admission by privies. (ibid.) Exceptions (1) Admission by a Co-partner
(Rule 130, sec. 30, as
There are two (2) branches of the rule of res amended);
inter alios acta, namely: (2) Admission by an Agent
(Rule 130, sec. 30, as
amended);
Admission by Third Previous Conduct
(3) Admission by a Joint owner,
Party as Evidence
joint debtor, or other
The rule that the The rule that
person jointly interested
rights of a party evidence that one did
with the party (Rule 130,
cannot be prejudiced or did not do a
sec. 30, as amended);
by an act, certain thing at one
(4) Admission by a Co-
declaration, or time is not admissible
conspirator (Rule 130, Sec.
omission or another to prove that he or
31, as amended); and
she did or did not do

741
 (5) Admission by Privies (Rule (1) That the partnership, agency or joint interest
130, Sec. 32, as amended). is established by evidence other than the act
Additional Statements made by an or declaration;
Exception employee against his employer (2) The act or declaration of a partner or an
are admissible against the agent of the party is within the scope of his
latter, where the statements authority;
while in employ and where they (3) The act or declaration was made during the
concerned a matter within the existence of the partnership or agency;
scope of his employment. (4) Such acts or declaration may be given in
(Mahlandt vs. Wild Canid evidence against such party after the
Survival & Research Center, partnership or agency is shown other than
588 F.2d 626, 8th Cir. 1978) acts of declaration. (Tan, Evidence, A
Compendium for the Bar, 2019 Ed., p. 362)
Note: These exceptions are collectively classified
as “vicarious admissions”. It is well established that the statements and
admissions of an agent are properly admissible in
A vicarious admission may be defined as an evidence against the principal if they qualify as
assertion made by some person whose words or vicarious admissions.
acts are treated through the operation of
substantive law as those of the litigant. The same rule applies to the act or declaration of
a joint owner, joint debtor, or other person jointly
The basis for admitting the above admissions is interested with the party (Rule 130, Sec. 30, as
that the person making the statements is under amended)
the same circumstances as the person against
whom it is offered. Such circumstances give him NOTE: Any declaration made before the
substantially the same interest and the same partnership or agency existed, or those made
motive to make a statement about certain after, are not admissible against the other
matters. partners or principal but remains admissible as
against the partner or agent making the
a. Admission by a Co-Partner or Agent declaration. (Riano, Evidence [The Bar Lecture
Series], 2022 Ed.,p. 290).
The act or declaration of a partner or agent
authorized by the party to make a statement The same rule applies to an act or declaration of
concerning the subject, or within the scope of his a joint owner, joint debtor or other person jointly
or her authority and during the existence of the interested with the party. (Sec. 29, Rule 130,
partnership or agency, may be given in evidence ROC, as amended)
against such party after the partnership or
agency is shown by evidence other than such act Dissolved Partnership
or declaration (Rule 130, Sec. 30, as amended). General Rule Exception
Admissions made Where the admissions
after a partnership are made in
Requisites:
has been dissolved do connection with the
The requisites in order the admission by a co- not fall within the winding up of the
partner or agent may be admissible in evidence exception because partnership affairs,
are as follows: such are made when said admissions are
still admissible as the

742
 the partnership partner is acting as an
ceased to exist. agent of his co-
partner in said
winding up.
(Regalado, Remedial Law Compendium Vol. 2,
2008 Ed., p. 759)
b. 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
co-conspirator after the conspiracy is shown by
evidence other than such act or declaration (Rule
130, Sec. 31, as amended).
The 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).
Conspiracy is the combination or confederacy
between two or more persons formed for the
purpose of committing, by their joint efforts some
unlawful or criminal act, or some act which is
lawful in itself, but becomes unlawful when done
by the concerted action of the conspirator, or for
the purpose of using criminal or unlawful means
to the commission of an act not in itself lawful.
(Black's Law Dictionary, Fifth Edition, p. 182)
NOTE: Once conspiracy is proven, the act of one
is the act of all. The statement therefore of one
may be admitted against the other co-
conspirators as an exception to the rule of res
inter alios acta. (Riano, Evidence ([he Bar Lecture
Series], 2022 Ed.,p. 291).
Requisites:
(1) The declaration or act be made or done
during the existence of the conspiracy;
(2) The declaration or acr must be in
furtherance of the purpose and object of the
conspiracy; and
(3) The conspiracy must be shown by evidence
ot other than the declaration or act
(evidence aliunde). (Sec. 31, Rule 130, ROC,
as amended)
Scope
This Rule applies only to extrajudicial acts or
admissions and not to testimony at trial where
the party adversely affected has the opportunity
to cross-examine the declarant. (People v.
Baharan, G.R. No. 188314, January 10, 2011)
Relationship, association and
companionship do not prove conspiracy
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 vs. Court of Appeals, G.R. No.
184681, February 25, 2013).
In order that the admission of a conspirator may
be received as evidence against his co-
conspirator, it is necessary that first, the
conspiracy be first proved by evidence other
than the admission itself; second, the admission
relates to the common object; and third, it has
been made while the declarant was engaged in
carrying out the conspiracy.(Estrada v. Office of
the Ombudsman, G.R. Nos. 212761-62, 213473-
74 & 213538-39, July 31, 2018)
The arrest of the declarant is often found to
terminate the declarant's participation in the
conspiracy so that the declarant's post arrest
statements do not qualify as admissible co-
743
conspirator statements (29A Am Jur, Evidence, impliedly agrees therein.
S840). (Admission by silence)
2) When the said facts stated in
The rule that the statement of a conspirator the admission are confirmed in
the individual extrajudicial
relating to the conspiracy is not admissible in
confessions made by co-
evidence unless the conspiracy is first shown by conspirator after the
other independent evidence, applies only to an apprehension. (Interlocking
admission in an extrajudicial confession or confessions)
declaration. It does not apply to a testimony (Tan, Evidence, A Compendium for the Bar, 2019
given directly in court where the defendants have Ed., pp. 378-379)
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).

When extrajudicial admission becomes a

judicial admission

While it is true that statements made by a

conspirator against a co-conspirator are
admissible only when made during the existence
of the conspiracy, if the declarant repeats the
statement in court, his extrajudicial confession
becomes a judicial admission, making the
testimony admissible as to both conspirators.
(People vs. Baharan, G.R. No. 188314, 10 Jan.
2011)

Effect of the admission by a conspirator

after the existence of conspiracy

General admission by a conspirator after

rule the existence of conspiracy is
not admissible as evidence
against the co-conspirator
Exceptions 1) If the admission was made in
the presence of the co-
conspirator who expressly or

744
Quantum of evidence to prove conspiracy
Conspiracy must be proven by the same quantum
of evidence as the felony subject of the
agreement of the parties. (ibid)
Mere presence at the scene of the crime at the
time of its commission without proof of the
cooperation or agreement to cooperate is not
enough to constitute one a party to a conspiracy.
(People of the Philippines vs. Brgy. Capt. Tony
Tomas, Sr., Benedicto Doctor and Nestor
Gatchalian, G.R. No. 192251, February 16, 2011)
The fact that an accused appeared together with
the other accused and fled with them, while not
constitutive of proof beyond reasonable doubt of
conspiracy, still proves a certain degree of
participation and cooperation on the execution of
the crime, and in line with the principle that
whatever is favorable to an accused must be
accorded to him, he is guilty as an accomplice
only. (People of the Philippines vs. Brgy. Capt.
Tony Tomas, Sr., Benedicto Doctor and Nestor
Gatchalian, G.R. No. 192251, February 16, 2011)
Degree of evidence in conspiracy
While it is true that in conspiracy, direct proof is
not essential, it must however, be shown
that it exists as clearly as the commission of
the offense itself. There must be at least
beadequate proof that the malefactors had com
e to an agreement concerning the commission o
f a felony and decided to commit it. (Sargasso
Construction and Development Corporation v.
National Labor Relations Commission, G.R. No.
164118, February 9, 2010)
Totality of Evidence Rule
The totality of evidence sufficiently indicated the
probability that Salapuddin lent moral and
material support or assistance to the perpetrators
or assistance to the perpetrators in the commissi
on of the crime. Jurisprudence teaches us that it
is necessary that a conspirator should have
performed some overt acts as a direct or indirect
contribution in the execution ofthe crime planne
d to be committed. However, this act may consist
of active participation in the actual commission of
the crime itself, or it may consist of
moral assistance to his co-conspirators by being
present at the commission of the crime or by
exerting moral ascendancy over the other co-
conspirators. (Salapuddin v. Court of Appeals,
G.R. No. 184681 (Resolution), February 25,
2013)
c. 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 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. (Missionary Sisters of Our Lady of
Fatima v. Alzona, G.R. No. 224307, August 6,
2018)
745
Kinds of Privies
Those arising from:
(a) Contract;
(b) Law – e.g. Succession; or
(c) Blood – e.g. Father and son
Requisites:
The requisites in order that admission by privies
is admissible to the subsequent holder of title to
the property are as follows, to wit:
(1) That there must be a relation of privity
between the party and the declarant;
(2) That the admission was made by the
declarant as predecessor-in-interest while
holding title to the property;
(3) That the admission is in relation to the
property. (Tan, Evidence, A Compendium for
the Bar, 2019 Ed., pp. 384)
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; (Rule 130, Sec. 33)
(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. (Rule 130, Sec. 31)
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 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 consentire
videtur”, 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 vs. Castañeda, G.R. No. 208290, Dec. 11,
2013).
Requisites:
(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 vs. Guillen, G.R.
No. 191756, November 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.
(Estate of Bueno v. Estate of Peralta, G.R. No.
205810, September 9, 2020)
Adoptive admission may occur when a
party:
(a) expressly agrees to or concurs in an oral
statement made by another;
746
(b) hears a statement and later on essentially citing People vs. Satorre, G.R. No. 133858,
repeats it; August 12, 2003).
(c) utters an acceptance or builds upon the
assertion of another;
Nature of Judicial Confession
(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 Judicial confession constitutes evidence of a high
make; or order. The presumption is that no sane person
(e) reads and signs a written statement made would deliberately confess to the commission of
by another (Estate of Bueno v. Estate of a crime unless prompted to do so by truth and
Peralta, G.R. No. 205810, September 9, conscience. Admission of guilt constitutes
2020)
evidence against the accused pursuant to Rule 29
and Rule 30 of the Rules of Court. (People of the
CONFESSIONS
Philippines vs. Bascugin, G.R. No. 184704, June
30, 2009)
Confession is a categorical acknowledgement of
guilt made by an accused of the offense charged
Classifications of Confession
or any offense necessarily included therein (Rule
130, Sec. 34).
Judicial Confession Extrajudicial
Confession
A confession is an acknowledgment in express
One made by the One made in any
terms, by a party in a criminal case, of his guilt of accused before an other place or
the crime charged, while an admission is a open court in which occasion other than
statement by the accused, direct or implied, of the case is pending the court where the
facts pertinent to the issue, and tending, in and in the course of case is pending and
connection with proof of other facts, to prove his legal proceedings cannot sustain a
therein and, by itself, conviction unless
guilt. In other words, an admission is something
can sustain conviction corroborated by
less than a confession, and is but an and is admissible evidence of corpus
acknowledgment of some fact or circumstance against one’s co- delicti. It is generally
which in itself is insufficient to authorize a accused. It is binding only upon the
conviction, and which tends only to establish the governed by Secs. 1, confessant and is not
ultimate fact of guilt (People of the Philippines vs. 3 & 4 of Rule 116. admissible against his
Lorenzo, G.R. No. 110107, January 26, 1995 co-accused. It is
governed by Sec. 33
citing Wharton).
of Rule 130.
(Regalado, Remedial Law Compendium Vol. 2,
The rationale for the admissibility of a confession 2008 Ed., p. 765)
is that if it is made freely and voluntarily, a
confession constitutes evidence of a high order Requisites for Admissibility of Confessions:
since it is supported by the strong presumption
that no sane person or one of normal mind will Confession in order to be admissible must concur
deliberately and knowingly confess himself to be with the following requisites:
the perpetrator of a crime, unless prompted by (1) The confession must involve an express and
truth and conscience (People v. Pastoril y Polego, categorical acknowledgment of guilt. (US.
G.R. No. 206413 (Notice), November 20, 2017 vs. Conales, 28 Phil. 362)

747
(2) The facts admitted must be constitutive of a
criminaloffense. (U.S. vs. Flores, 26Phil.262)
(3) The confession must have been given
voluntarily and intelligently. (People vs.
Nishima, 57 Phil. 26)
(4) There must be no violation of the
constitutional rights of the accused under
Section 12, Article III of the 1987 Philippine
Constitution. (Tan, Evidence, A A confession is not required to be in any particular
Compendium for the Bar, 2019 Ed., pp. 390-
391)
NOTE: A confession to a person, who is not a
police officer, is admissible in evidence. The
declaration acknowledging his guilt of the offense
charged, or of any offense necessarily included
therein, may be given in evidence against the
declarant. Such admissions are not covered by
Secs. 12 (1) and (3), Article III, 1987
Constitution, because they were not extracted
while he or she was under custodial investigation.
(People vs. Davao, et al., G.R. No. 174660, 30
May 2011)
Must be in writing and signed by such person in
the presence of his counsel or in the latter’s
absence, upon a valid waiver and in the presence
of any of the parents, elder brothers and sisters,
his spouse, the municipal judge, district school
supervisor or priest or minister of the gospel as
chosen by him her. (Sec. 2(d), R.A. No. 7438)
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 v. Pastoril y
Polego, G.R. No. 206413 (Notice), [November 20,
2017])
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).
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.).
NOTE: If the accused admits having committed
the act in question but alleges a justification
therefor, such as absence of criminal intent, the
same is merely an admission.
General Rule Exception
An extrajudicial When it is
confession cannot corroborated by
sustain a conviction evidence of the
corpus delicti (Rule
133, Sec. 3).
Corpus delicti refers to a particular crime and
signifies that the specific offense had been
actually committed by someone.
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).
748
Burden of Proof in case of Confession General An extrajudicial confession is
Rule admissible against the
Confession must be voluntary and the burden of confessor only. It is
proof rest on the defense to prove that it was incompetent evidence against
his co-accused for being
involuntarily (Tan, Evidence, A Compendium for
hearsay and because of the res
the Bar, 2019 Ed., p. 392) inter alios acta rule
Exceptions When admissible against the
Requisites for Admissibility of Extrajudicial co-defendants
Confessions: (1) If the co-defendants
impliedly acquiesced in or
adopted said confession;
Extrajudicial confessions are admissible in
(2) Interlocking confessions – if
evidence, provided they are:
the accused persons
(1) voluntary; voluntarily and
(2) made with the assistance of a competent independently executed
and independent counsel; identical confession without
(3) express; and collusion and corroborated
(4) in writing. (People v. Magayon y Francisco, by other evidence;
G.R. No. 238873, September 16, 2020) (3) Where the accused admitted
the facts stated by the
In the present case, while it is undisputed that confessant after being
petitioner gave an uncounseled written statement apprised of such confession;
regarding an anomaly discovered in the branch (4) If they are charged as co-
he managed, the following are clear: (1) the conspirators of the crime
which was confessed by one
questioning was not initiated by a law
of the accused and said
enforcement authority but merely by an internal confession is used only as
affairs manager of the bank; and, (2) petitioner corroborating evidence;
was neither arrested nor restrained of his liberty (5) Where the confession is
in any significant manner during the questioning. used as circumstantial
Clearly, petitioner cannot be said to be under evidence to show the
custodial investigation and to have been deprived probability of participation
by the conspirator;
of the constitutional prerogative during the taking
(6) When the confessant
of his written statement (Tenenggee vs. People, testified for his co-
G.R. No. 179448, June 26, 2013). defendant; and
(7) Where the co-conspirator’s
Even if the confession may appear to have been extrajudicial confession is
given voluntarily since the confessant did not file corroborated by other
evidence of record
charges against his alleged intimidators for
(ANNOTATION: The Inter Alios Acta Rule
maltreatment, the failure to properly inform a
Revisited, 331 SCRA 562, May 09, 2000).
suspect of his rights during a custodial
investigation renders the confession valueless
Note: Any confession or admission obtained in
and inadmissible (People vs. Sayaboc, G.R. No.
violation of Sections 12 and 17, Article III of the
147201, January 15, 2004).
1987 Constitution shall be inadmissible as
evidence against the confessor or admitter.

749
Illegal confessions and admissions are
inadmissible against the confessant or the
admitter but are admissible against the persons
who violated the constitutional prohibition in
obtaining such illegal confessions on admissions.
petty and inconsequential. They are not as
serious as charging one's own father of the sordid
crime of rape, with all of its serious repercussions
(People of the Philippines vs. Nardo, G.R. No.
133888, March 1, 2001).

Doctrine of Interlocking Confessions Evidence is not admissible when it shows, or

tends to show, that the accused in a criminal case
It states that extrajudicial confessions has committed a crime independent from the
independently made without collusion which are offense for which he is on trial. A man may be a
identical with each other in their essential details notorious criminal, and may have committed
and corroborated by other evidence against the many crimes, and still be innocent of the crime
persons implicated, are admissible to show the charged on trial (People vs. Pineda, G.R. No.
probability of the latter’s actual participation in 141644, May 27, 2004).
the commission of the crime. (Poe-Llamanzares
v. Commission on Elections, G.R. Nos. 221697 & Rape Shield
221698-700 (Concurring Opinion), March 8,
2016) In prosecutions for rape, evidence of
complainant's past sexual conduct, opinion
4. PREVIOUS CONDUCT AS EVIDENCE thereof or of his/her reputation shall not be
admitted unless, and only to the extent that the
General Evidence that one did or did not court finds, that such evidence is material and
Rule do a certain thing at one time is relevant to the case (R.A. No. 8505, Sec. 6).
not admissible to prove that he Sexual Abuse Shield Rule in Examination of
or she did or did not do the a Child Witness
same or similar thing at another
time. (Sec. 35, Rule 130, ROC,
as amended) This is also General Rule Exception
referred to as the “Propensity The following Evidence of specific
Rule.” evidence is not instances of sexual
Exception It may be received to prove a admissible in any behavior by the
specific: Intent; criminal proceeding alleged victim to
1. Knowledge; involving alleged child prove that a person
2. Identity; sexual abuse: other than the
3. Plan; (1) Evidence offered accused was the
4. System; to prove that the source of semen,
5. Scheme; alleged victim injury, or other
6. Habit engaged in other physical evidence
7. Custom; or sexual behavior; shall be admissible
8. Usage; and and [A.M. No. 004-07-SC,
9. The Like (2) Evidence offered Sec. 30(b)].
(Rule 130, Sec. 35, as amended). to prove the
sexual
predisposition of
While lying may constitute a habit, we believe the alleged victim
that the falsehoods committed by Lorielyn, [A.M. NO. 004-07-
assuming them for the moment to be true, are SC, Sec. 30(a)].

750
Offer of Compromise Reason Compromise is Allowed in Civil
Cases:
In civil cases
General rule Exception It is the policy of the law to favor the settlement
An offer of Evidence otherwise of disputes, to foster compromises and to
compromise is not an discoverable or promote peace (Genato vs. Silapan, Adm. Case.
admission of any offered for another
No. 4078, July 14, 2003). If a party denies the
liability, and is not purpose, such as (a)
admissible in proving bias or existence of a debt but offers to pay the same for
evidence against the prejudice of a the purpose of buying peace and avoiding
offeror. Neither is witness; (b) litigation, the offer of settlement is inadmissible.
evidence of conduct negativing a If in the course thereof, the party making the
nor statements made contention of undue offer admits the existence of an indebtedness
in compromise delay, or (c) proving combined with a proposal to settle the claim
negotiations an effort to obstruct a
amicably, then, the admission is admissible to
admissible. criminal investigation
or prosecution. prove such indebtedness (Tan vs. Rodil
In criminal cases Enterprises, G.R. No. 168071, December 18,
General rule Exception 2006).
An offer of a. Those involving
compromise by the quasi-offenses For a compromise to amount to an implied
accused may be (criminal negligence); admission of guilt, the accused should have been
received in evidence b. Those allowed by
present or at least authorized the proposed
as an implied law to be
admission of guilt compromised; compromise (People vs. Erguiza, G.R. No.
c. A plea of guilty later 171348, November 26, 2008).
withdrawn, or an
unaccepted offer of a Note: An offer of compromise that may be
plea of guilty to lesser considered an implied admission need NOT be
offense, is not made by the accused himself, it may be made by
admissible in
his lawyer or relatives, provided it is made with
evidence against the
accused who made the consent of the accused or with his knowledge
the plea or offer; and he does not stop it.
d. Any statement
made in the course of Good Samaritan Rule
plea bargaining with
the prosecution, An offer to pay or the payment of medical,
which does not result
hospital or other expenses occasioned by an
in a plea of guilty or
which results in a plea injury is not admissible in evidence as proof of
of guilty later civil or criminal liability for the injury (Rule 130,
withdrawn, is not Sec. 28, as amended).
admissible in
evidence against the Rationale
accused who made
the plea or offer
The reason for this Rule is to promote and
(Rule 130, Sec. 28, as amended)
encourage humanitarian acts or charitable
responses rather than discourage or penalize

751
them. Otherwise, someone who may just want to Old concept of New concept of
help might hold back for fear that doing so will be hearsay hearsay as lack of
taken as a sign of guilt (Regalado, Remedial Law firsthand knowledge
Compendium Vol. 2, 2008 Ed., p. 758) Testimony that is A witness can testify
not based on one’s only as to facts of his or
personal her personal knowledge
Unaccepted Offer knowledge, nor or derived from his or
derived from one’s her own perception.
An offer in writing to pay a particular sum of own perception.
money or to deliver a written instrument or While it is true that the testimony of a witness
specific personal property, if rejected without regarding a statement made by another person,
valid cause, is equivalent to the actual production if intended to establish the truth of the fact
and tender of the money, instrument, or property asserted in the statement, is clearly hearsay
(Rule 130, Sec. 36). evidence, it is otherwise if the purpose of placing
the statement in the record is merely to establish
Effect in case of an unaccepted offer the fact that the statement was made or the tenor
of such statement. Regardless of the truth or
The rule on unaccepted offer states that, an offer falsity of a statement, when the fact that it has
in writing to pay a particular sum of money or to been made is relevant, the hearsay rule does not
deliver a written instrument or specific personal apply and the statement may be shown. As a
property is, if rejected without valid cause, matter of fact, evidence as to the making of the
equivalent to the actual production and tender of statement is not secondary but primary, for the
the money, instrument, or property. (Tan, statement itself may constitute a fact in issue, or
Evidence, A Compendium for the Bar, 2019 Ed., be circumstantially relevant as to the existence of
p. 393) such a fact. (Comilang v. Burcena, G.R. No.
146853, February 13, 2006)
Requirements of a valid offer of payment
Doctrine of Independently Relevant
The requirements for a valid tender of payment Statements
are as follows, to wit:
(1) The offer of payment must be made in Under the doctrine of independently relevant
writing; and statements, regardless of their truth or falsity, the
(2) The offer of payment must be followed by fact that statements have been made is relevant.
the consignation of the amount in court. The hearsayrule does not apply, and the
(ibid.)
statements are admissible as evidence. Evidence
as to the making of such statement is not
5. TESTIMONIAL KNOWLEDGE
secondary but primary, for the statement itself
may constitute a fact in issue or be
A witness can testify only to those facts which he
circumstantially relevant as to the existence
or she knows of his or her personal knowledge;
of such a fact.” (Cambe v. Office of the
that is, which are derived from his or her own
Ombudsman, G.R. Nos. 212014-15, 212427-28,
perception (Rule 130, Sec. 22, as amended).
212694-95, 212794-95, 213477-78, 213532-33,
213536-37 & 218744-59, [December 6, 2016)

752
6. HEARSAY AND EXCEPTIONS TO THE When a Statement is NOT Considered as
HEARSAY RULE Hearsay.

HEARSAY A statement is not hearsay if the declarant

testifies at the trial or hearing and is subject to
It is a statement other than one made by the cross-examination concerning the statement, and
declarant while testifying at a trial or hearing, the statement is:
offered to prove the truth of the facts asserted
therein. Prior Inconsistent with the
inconsistent declarant’s testimony, and
A Hearsay statement may be; (1) an oral or statement was given under oath
written assertion or (2) a non-verbal conduct of a under oath subject to the penalty of
perjury at a trial, hearing,
person, if it is intended by him or her as an
or other proceeding, or in a
assertion. deposition;
Prior Consistent with the
A witness can testify only to those facts which he consistent declarant’s testimony and
knows of his personal knowledge; that is, which statement is offered to rebut an
are derived from his own perception (Rule 130, express or implied charge
against the declarant of
Sec. 22, as amended). Pursuant to this rule, a
recent fabrication or
witness’ testimony as to what he merely learned
improper influence or
from others, either through being told or having motive; or
heard or read of the same, may not be received Prior One of the identification of
as proof of the truth of what he has so learned. statement of a person made after
Similarly, writings or documents may not be identification perceiving him or her.
admitted as evidence of the facts stated therein (Par. 2, Sec. 37, Rule 130, ROC, as amended)
where the persons who wrote or made them are
not presented to testify thereon. Such kinds of Hearsay Rule
evidence are considered hearsay (ANNOTATION:
Hearsay Evidence, 24 SCRA 613, August 14, The hearsay rule provides that hearsay evidence
1968). is inadmissible except as otherwise provided in
the Rules on Evidence. (Sec. 37, Rule 130)
The exclusion of hearsay evidence has been
traditionally justified by the perceived unreliability The theory of the hearsay rule is that when a
of out-of-court statements. Traditionally, hearsay human utterance is offered as evidence of the
evidence poses four risks of unrealibility: a truth of the fact asserted, the credit of the
narration risk (i.e.,the risk that the declarant did assertor becomes the basis of inference, and,
not mean what he or she seemed to say); therefore, the assertion can be received as
a sincerity risk (the risk that the declarant evidence only when made on the witness stand,
intentionally fabricated); a memory risk (the risk subject to the test of cross-examination. (Patula
that the declarant misrecalled what happened); v. People, G.R. No. 164457, April 11, 2012)
and a perception risk (the risk that the declarant
misperceived things to begin with). (In re Ong, However, if an extrajudicial utterance is offered,
A.M. No. SB-14-21-J, September 23, 2014) not as an assertion to prove the matter asserted

753
but without reference to the truth of the matter prove the truth of the facts
asserted, the hearsay rule does not apply. (ibid) asserted therein.
Exceptions to Those which are classified
For example, in a slander case, if a prosecution the Hearsay as hearsay but are deemed
Rule admissible by the Rules for
witness testifies that he heard the accused say
certain reasons.
that the complainant was a thief, this testimony Non-Hearsay The Doctrine of
is admissible not to prove that the complainant Independently Relevant
was really a thief, but merely to show that the Statements.
accused uttered those words. This kind of Regardless of the truth or
utterance is hearsay in character but is not legal falsity of a statement,
hearsay. The distinction is, therefore, when what is relevant is
the fact that such
between (a) the fact that the statement was
statement has been made,
made, to which the hearsay rule does not apply, the hearsay rule does not
and (b) the truth of the facts asserted in the apply and the statement
statement, to which the hearsay rule applies. may be shown. As a matter
(ibid) of fact, evidence as to the
making of the statement is
not secondary but primary,
Hearsay may be in written form
for the statement itself may
constitute a fact in issue or
We often think of hearsay in its oral form but is circumstantially relevant
hearsay may also be in writing. Hence if a party as to the existence of such
will present a letter to prove the truth of the a fact. This is known as the
contents thereof without presenting the letter- “doctrine of independently
writer, the letter would be hearsay. Affidavit of relevant statements”
(Espineli vs. People, G.R. No.179535, June 9,
doctor absolving another doctor from
2014).
professional negligence is hearsay where the
affiant was not presented in court. (Rosit v.
By hearsay evidence is meant that kind of
Davao Doctors Hospital, December 7, 2015)
evidence which does not derive its value solely
from the credence to be attributed to the witness
Hearsay may be non-verbal
herself but rests solely in part on the veracity and
Hearsay may consist of non-verbal conduct if the
competence of some persons from whom the
same is intended by a person as an assertion.
witness has received the information. It signifies
(FRE 801[a]; Riguera, Primer-Reviewer on
all evidence which is not founded upon the
Remedial Law, 2022 Ed., p. 806).
personal knowledge of the witness from whom it
is elicited, and which, consequently, is not subject
Classification of Out-of-Court Statements
to cross-examination. The basis for the exclusion
appears to lie in the fact that such testimony is
Hearsay Those which are
considered as hearsay and not subject to the test which can ordinarily be
therefore inadmissible. applied for the ascertainment of truth of
This occurs when the testimony, since the declarant is not present and
purpose for introducing the available for cross-examination. In criminal cases,
out-of-court statement is to the admission of hearsay evidence would be a
violation of the constitutional provision while the

754
accused shall enjoy the right to confront and Evidence not based on personal knowledge
cross-examine the witness testifying against him (Lack of first-hand knowledge rule) vs.
(People vs. Ulit, G.R. Nos. 131799-801, February Hearsay Evidence
23, 2004).
A witness can testify only to those facts which he
Evidentiary Value of Hearsay or she knows of his or her personal knowledge;
that is, which are derived from his or her own
A witness can testify only to those facts which perception. (Sec. 22, Rule 130, ROC, as
one knows of his or her own personal amended)
knowledge, i.e., which are derived from his or
her own perception. Otherwise, such testimony If it can be shown from the surrounding
would be hearsay. In turn, jurisprudence defines circumstances that a hearsay declarant lacked
hearsay evidence as "evidence not of what the firsthand knowledge of the subject of his
witness knows himself [or herself] but of what he declaration, evidence of that declaration will
[or she] has heard from others." As a general ordinarily be excluded even if it would otherwise
rule, hearsay evidence, whether objected to or come within some exception to the hearsay rule.
not, cannot be given credence for it has no (Rules Committee Notes, citing Lempert &
probative value. (Sarmiento v. Dizon, G.R. No. Saltzbur)
235424, February 3, 2021)
Affidavit as Hearsay Evidence
Statement made through an Interpreter
General An affidavit is merely hearsay
General Rule Exceptions Rule evidence where its affiant/maker
Statements made In cases where the did not take the witness stand
through an interpreter interpreter had been (Dantis vs. Maghinang, Jr., G.R.
are considered selected; No. 191696, April 10, 2013).
hearsay if a witness is (a) By common
offered to testify to consent of the The reason for this rule is that
the statements of partied they are not generally prepared
another person, endeavoring to by the affiant, but by another
spoken in a language converse; or one who uses his or her own
not understood by (b) By a party whom language in writing the affiant's
him, but translated for the statements statements, parts of which may
him by an interpreter, of the interpreter thus be either omitted or
such witness is not where offeref in misunderstood by the one
qualified, because he evidence writing them. Moreover, the
does not speak from (Principal-Agent- adverse party is deprived of the
personal knowledge. Rule) opportunity to cross-examine the
All that he can know affiants. For this reason,
as to the testimony is affidavits are generally rejected
from the for being hearsay, unless the
interpretation thereof affiants themselves are placed
which is in fact given on the witness stand to testify
by another person. thereon (Republic vs. Gimenez,
G.R. No. 174673, January 11,
2016).

755
 Exception The rule that an affidavit is
considered hearsay is liberally
applied in labor cases
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).
Exceptions to Hearsay
The exceptions to the hearsay evidence rule are
as follows, to wit:
(a) Dying declarations (Sec. 38, Rule 130);
(b) Statement of decedent or person of
unsound mind (Sec. 39, Rule 130);
(c) Declaration against interest (Sec. 40, Rule
130);
(d) Act or declaration about pedigree (Sec. 41,
Rule 130);
(e) Family reputation or tradition regarding
pedigree (Sec. 42, Rule 130);
(f) Common reputation (Sec. 43, Rule 130);
(g) Part of the res gestae (Sec. 44, Rule 130);
(h) Records of regularly conduct business
activity (Sec. 45, Rule 130);
(i) Entries in official records (Sec. 46, Rule
130);
(j) Commercial lists and the like (Sec. 47, Rule
130);
(k) Learned treatises (Sec. 48, Rule 130);
(l) Testimony or deposition at a former
proceeding (Sec. 49, Rule 130).
(m) Residual exception (Sec. 50, Rule 130).
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).
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)
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 vs. Gutierrez, G.R.
No. 194159, Oct. 21, 2015, reiterating Estrada vs.
Ombudsman, G.R. No. 212140-41, January 21,
2015).
(a) Dying Declaration (Sec. 38, Rule 130)
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).
Rule
The rule on dying declaration states that, the
declaration of a dying person, made under the
consciousness of an impending death, may be
received in any case wherein his death is the
subject of inquiry, as evidence of the cause and
surrounding circumstances of such death. (Tan,
Evidence, A Compendium for the Bar, 2019 Ed.,
p. 403)
Nature
a dying person's declaration is recognized as an
exception to the rule against hearsay if it is "ma
de under the consciousness of an impending de
ath that is the subjectof inquiry in the case." It i
s considered as "evidence of the highest order
and is entitled to utmost credence since no
person aware of his impending death would
756
make a careless and false accusation." (People v.
Bernardo y Fernandez, G.R. No. 216056,
December 2, 2020)
Generally, witnesses can testify only to those
facts derived from their own perception. A
recognized exception, though, is a report in open
court of a dying person's declaration made under
the consciousness of an impending death that is
the subject of inquiry in the case. (People v.
Salcedo, G.R. No. 178272, March 14, 2011)
Rationale
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).
NOTE: Where the elements of both a dying
declaration and a statement as part of the res
gestae are present, the statement may be
admitted as a dying declaration and at the same
time as part of res gestae. (People v. Labagala y
Abigonia, G.R. No. 184603, August 2, 2010)
Requisites
(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
the declarant is a victim (People v. Bernardo
y Fernandez, G.R. No. 216056, December 2,
2020)
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).
Grounds of dying declaration
Dying declarations are grounded on:
(1) Necessity — because the declarant's death
makes it impossible to obtain his testimony
in court.
(2) Trustworthiness—because a person under
an impending death has no more motive to
make falsehood, and it has been said that
"The truth sits on the lips of a dying man."
NOTE: In order to make a dying declaration
admissible, a fixed belief in inevitable and
imminent death must be entered by the
declarant. It is the belief in impending death and
not the rapid succession of death in point of fact
that renders a dying declaration admissible.
(People of the Philippines vs. Quiasayas, G.R. No.
198022, 7 Apr. 2014)
Test to determine the Application of the
Rule on Dying Declaration
Whether the declarant has abandoned all hopes
of survival and looked on death as certainly
impending. (Ibid.)
Case example
A "dying declaration" is one of the recognized
exceptions to the right to confrontation. In the
case at bar, it will not be amiss to state that Mary
Jane's deposition through written interrogatories
757
is akin to her dying declaration. There is no doubt
that Mary Jane will be answering the written
interrogatories under the consciousness of an
impending death — or execution by a firing squad
to be exact. To stress, Mary Jane has been
convicted by final judgment and sentenced to
death by firing squad. Mary Jane has already
availed of all available legal remedies and there is
no expectation that her conviction will be
overturned by the Indonesian authorities. The
only purpose for the grant of the reprieve was for
Mary Jane to assist the prosecution in erecting its
case against her recruiters and traffickers. There
was nary any mention that the outcome of the
legal proceedings here in the Philippines will have
a concomitant effect in Mary Jane's conviction by
the Indonesian authorities. That Mary Jane is
facing impending death is undisputed considering
the nature of her reprieve which is merely
temporary. It is therefore not a stretch of
imagination to state that Mary Jane's declarations
in her deposition "are made in extremity, [she
being] at the point of death, and x x x every hope
of this world is gone; when every motive to
falsehood is silenced and the mind is induced by
the most powerful considerations to speak the
truth," to vindicate oneself, and to secure justice
to her detractors||| (People v. Sergio, G.R. No.
240053, October 9, 2019, J. Hernando)
Time Interval
General Rule Exceptions
The intervening time (1) If there is
from the making of a retraction made by
dying declaration up the declarant
to the time of death is before he died; or
immaterial in its (2) His declaration is
admissibility, as long ambiguous as to
as it was made under whether he
the consciousness of believed that his
impending death. death was
imminent when he
made such
declaration.
(Regalado, Remedial Law Compendium Vol. 2,
2008 Ed., pp. 779-780)
It is of no moment that the victim died seven days
from the stabbing incident and after receiving
adequate care and treatment, because the
apparent proximate cause of his death was a
consequence of the stabbing. (People of the
Philippines vs. Rarugal, G.R. No. 188603, January
16, 2013)
Form
A dying declaration has no particular form. It may
be in writing or verbal, and under oath or not. If
oral, the witness who heard it may testify thereto
without the necessity of reproducing the word of
the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be
used as a memorandum by the witness who took
it down. (People vs. Boller, G.R. Nos. 144222-24,
03 Apr. 2002)
(b) Statement of Decedent or Person of
Unsound Mind (Sec. 39, Rule 130)
This is a new hearsay exception laid down in the
2020 Rules on Evidence. The framers decided to
abolish the Dead Man’s Statute and to allow the
claimant to testify on an antemortem fact. In
order however to minimize the danger of injustice
to the decedent’s estate, the framers decided to
provide for a hearsay exception regarding the
decedents statements. (Riguera, Primer-
Reviewer on Remedial Law, 2022 Ed., p. 852)
General Any out-of-court statement of
Rule 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:
758
 (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
(3) while his or her recollection
was clear (Rule 130, Sec.
39, as amended).
Exception Such statement, however, is
to the inadmissible if made under
Exception circumstances indicating its lack
of trustworthiness (Rule 130,
Sec. 39, as amended).(n)
Note: Under the Old Rules, Dead Man’s Statute
is a rule on disqualification; the witness who is a
party or assignor of a party to case or persons in
whose behalf a case in prosecuted is disqualified
to testify to any matter of fact of which occurred
Before the death of such deceased person or
before such person became of unsound mind.
Under the Dead Man's Statute Rule, "If one party
to the alleged transaction is precluded from
testifying by death, insanity, or other mental
disabilities, the other party is not entitled to the
undue advantage of giving his own
uncontradicted and unexplained account of the
transaction." Thus, the alleged admission of the
deceased xxx cannot be used as evidence against
[him] as the latter would be unable to contradict
or disprove the same (Garcia vs. Vda. de Caparas,
G.R. No. 180843, April 17, 2013).
(c) Declaration Against Interest (Sec. 40,
Rule 130)
General Rule Exception
A statement tending When corroborating
to expose the circumstances clearly
declarant to criminal indicate the
liability and offered to trustworthiness of the
exculpate the accused statement (Rule 130,
is not admissible. Sec. 40).
Requisites:
(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
(4) The declarant had No motive to falsify and
believed such declaration to be true (People
vs. Bernal, G.R. No. 113685, June 19, 1997).
Rationale
The rationale for the rule is based on the
presumption that no man would declare anything
against himself unless such declaration was true.
Thus, it is fair to presume that the declaration
corresponds with the truth, and it is his fault if it
does not (Sambalilo v. Spouses Llarenas, G.R. No.
222685, June 21, 2017)
With the deletion of the phrase "pecuniary or
moral interest" from the present provision, it is
safe to assume that "declaration against interest"
has been expanded to include all kinds of interest,
that is, pecuniary, proprietary, moral or even
penal (People of the Philippines vs. Bernal, G.R.
No. 113685, June 19, 1997).
NOTE: A statement against interest tending to
expose the declarant to criminal liability and
offered to exculpate the accused (which is
presumably different from the declarant) is not
admissible unless corroborating circumstances
clearly indicate trustworthiness of the statement.
(Sec. 40, Rule 130, ROC, as amended)
Declarations against interest are those made by
a person who is neither a party nor in privity
with a party to the suit, are secondary evidence,
and constitute an exception to the hearsay rule.
They are admissible only when the declarant is
759
unavailable as a witness. (Lazaro v. Agustin, G.R. places where these facts occurred, the names of
No. 152364, April 15, 2010) the relatives, and facts of family history intimately
connected with pedigree (Rule 130, Sec. 41, as
Declaration Against Admission Against amended).
Interest Interest
Declarant is neither a Admitter is a party Requisites
party nor in privity himself, or in privity
with a party with such party (1) that the declarant is dead or unable to testify;
Admissible only when Admissible whether (2) that the declarant be related to the person
declarant is or not admitter is whose pedigree is the subject of inquiry;
unavailable as a available as a (3) that such relationship be shown by evidence
witness witness other than the declaration; and
Must have been made Can be made any (4) that the declaration was made ante litem
ante litem motam time, even during motam, that is, not only before the
trial commencement of the suit involving the
Admissible even Admissible only subject matter of the declaration, but before
against 3rd persons against the admitter any controversy has arisen thereon. (Ende v.
Admissible as an Admissible not as an Roman Catholic Prelate of the Prelature
exception to the exception to any rule Nullius of Cotabato, Inc., G.R. No. 191867,
hearsay rule December 6, 2021, J. Hernando)
Made against one’s Made against one’s
pecuniary or moral claim or defense, Pedigree is the state of the family as far as
interest although not moral regards the relationship of the different
or pecuniary interest
members, their births, marriages and deaths; this
Secondary evidence Primary evidence
term is applied to persons or families, who trace
(Estrada v. Desierto, G.R. Nos. 146710-15 & their origin or descent (Black’s Law Dictionary,
146738, March 2, 2001) 2nd Ed.).

(d) Act or Declaration About Pedigree
(Sec. 41, Rule 130)
The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of
another person related to him or her by birth,
adoption, or marriage, or, in the absence thereof,
with whose family he or she was so intimately
associated as to be likely to have accurate
information concerning his or her pedigree, may
be received in evidence where it occurred before
the controversy, and the relationship between the
two persons is shown by evidence other than
such act or declaration (Rule 130, Sec. 41, as
amended).
Pedigree includes relationship, family genealogy,
birth, marriage, death, the dates when and the
NOTE: Such declarations are natural expressions
of persons who must know the truth. Although
hearsay, it is best that the nature of the case
admits and because greater evil might arise from
the rejection of such proof than from its
admission.
(e) Family Reputation or Traditions
Regarding Pedigree (Sec. 42, Rule 130)
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,

760
engravings on rings, family portraits and the like, said person (People vs. Llanita, G.R. No.
may be received as evidence of pedigree (Rule 134101, September 5, 2001).
130, Sec. 42, as amended).
The testimony of the witness as to his age as he
It is evident that this provision may be divided had learned from his parents and relatives is
into two (2) parts: admissible although hearsay and though he can
(1) The portion containing the first underscored have no personal knowledge of the date of his
clause which pertains to testimonial birth as all the knowledge he has of his age is
evidence, under which the documents in acquired from what he is told by his parents. His
question may not be admitted as the authors testimony in such case is an assertion of family
thereof did not take the witness stand; and tradition (People vs. Alegado, G.R. No. 93030-31,
(2) The section containing the second
August 21, 1991).
underscored phrase. What must then be
ascertained is whether the Exhibits, as
private documents, fall within the scope of ACT OR FAMILY
the clause “and the like” as qualified by the DECLARATION REPUTATION OR
preceding phrase entries in family bibles or ABOUT PEDIGREE TRADITION
other family books or charts, engravings on (Sec. 41, Rule 130) REGARDING
rings [and] family portraits PEDIGREE
(Sec. 42, Rule 130)
The scope of the enumeration contained in the
Witness need not be a Witness is a member
second portion of this provision, in light of the
member of the family. of the family.
rule of ejusdem generis, is limited to objects
which are commonly known as "family Testimony is about Testimony is about
possessions," or those articles which represent, in what declarant, dead family reputation or
effect, a family's joint statement of its belief as to or unable to testify, tradition covering
the pedigree of a person. These have been has said concerning matters of pedigree.
described as objects "openly exhibited and well the pedigree of the
known to the family," or those "which, if declarant’s family.
preserved in a family, may be regarded as giving
a family tradition." Other examples of these (f) Common Reputation (Sec. 43, Rule
130)
objects which are regarded as reflective of a
family's reputation or tradition regarding pedigree
Common reputation existing previous to the
are inscriptions on tombstones, monuments or
controversy, as to boundaries of or customs
coffin plates (Jison vs. Court of Appeals, G.R. No.
affecting lands in the community and reputation
124853, February 24, 1998).
as to events of:
• general history important to the community;
Requisites or
(1) There is a controversy in respect to the • respecting marriage; or
pedigree of any members of a family; • moral character may be given in evidence.
(2) The reputation or tradition of the pedigree
of the person concerned existed ante litem Monuments and inscriptions in public places may
motam or previous to the controversy; and
be received as evidence of common reputation
(3) The witness testifying to the reputation or
tradition regarding the pedigree of the (Rule 130, Sec. 43, as amended).
person must be a member of the family of

761
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.
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.
Common reputation may be proved by the
following:
(1) By testimonial evidence of a competent
witness;
(2) Monuments and inscriptions in public places;
(3) By documents containing statements of
reputation. (Tan, Evidence, A Compendium
for the Bar, 2019 Ed., p. 416)
Requisites for common reputation to be
applied as an exception to hearsay
evidence rule
Common reputation as an exception to hearsay
evidence rule must be concurred by the following
requisites:
(1) That the reputation is ancient;
(2) That the reputation is one formed in the
community interested;
(3) That it existed before any controversy has
arisen in the matter sought to be proved
thereby; and
(4) That common reputation is with respect to
the marriage or moral character. (ibid., pp.
416-417)
(g) Part of the Res Gestae
(Sec. 44, Rule 130)
Res Gestae – it is a Latin phrase which literally
mean “things done.”
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
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).
Meaning
Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and
serve to illustrate its character and are so
spontaneous and contemporaneous with the
main act as to exclude the idea of deliberation
and fabrication. (People of the Philippines vs.
Quiasayas, G.R. No. 198022, April 07, 2014)
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. An important consideration is whether
there intervened, between the occurrence and
the statement, any circumstance calculated to
divert the mind and thus restore the mental
balance of the declarant; and afford an
762
opportunity for deliberation. (Tan, Evidence, A
Compendium for the Bar, 2019 Ed., p. 418)
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).
Types of Res Gestae
(a) Spontaneous Statements – Refers to the
first sentence of Rule 130, Sec. 44, as
amended, as amended, viz: 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
respect to the circumstances thereof.
Requisites:
(1) The principal act, the res gestae, is a
Startling occurrence;
(2) The statements were made Before the
declarant had time to contrive or devise
a falsehood; and,
(3) The statements must concern the
occurrence in question and its
immediately attending Circumstances
(People of the Philippines vs. Lobrigas,
G.R. No. 147649, December 17, 2002).
Reason for Admissibility
The reasons for the admissibility of
spontaneous statements are: (1)
trustworthiness and (2) necessity. The
statements are trustworthy because they are
made instinctively, while the declarant’s
mental powers for deliberation in concocting
matters are controlled and stilled by the
shocking influence of a startling occurrence,
so that all utterances at the time are the
reflex product of immediate sensual
impressions, unaided by retrospective
mental action. It is due to necessity because
said natural and spontaneous utterances are
more convincing than the testimony of the
same person in the stand (ANNOTATION:
Res Gestae, 74 SCRA 141, November 29,
1976).
(b) Verbal Acts – Refers to the second
sentence of Rule 130, Sec. 44, as amended,
viz: Statements accompanying an equivocal
act material to the issue, and giving it a legal
significance.
Requisites:
(1) Act or occurrence characterized must
be Equivocal;
(2) Such act must be Material to the issue;
(3) Statements must Accompany the
equivocal act; and
(4) Statements give Legal significance to
the equivocal act (Talidano vs. Falcon
Maritime and Allied Services, Inc., G.R.
No. 172031, July 14, 2008).
Reason for Admissibility
The motive character, and object of an act,
are frequently indicated by what was said by
the person engaged in the act. Such
statements are in the nature of verbal acts
763
 and are admissible in evidence with the Dying
Part of Res Gestae
remainder of the transaction which they Declarations
illustrate (ANNOTATION: Res Gestae, 74 res gestae has its basis Dying declaration is
SCRA 141, November 29, 1976). on spontaneity of the being given based
statement. upon the awareness
Verbal Acts and Spontaneous Statements, of an impending
Distinguished death.
(Tan, Evidence, A Compendium for the Bar, 2019
Spontaneous Ed., p. 427)
Verbal Act
Statements
(a) The principal act, (a) The res gestae or (h) Records of Regularly Conducted
the res gestae, be principal act or to Business Activity (Sec. 45, Rule 130)
made due to a be characterized
startling must be equivocal; A memorandum, report, record or data
occurrence (b) Such act must be compilation of acts, events, conditions, opinions,
(b) The statements material to the
or diagnoses, made by writing, typing, electronic,
were made issue
before the (c) The statements optical or other similar means at or near the time
declarant had the must accompany of or from transmission or supply of information
opportunity to the equivocal act. by a person with knowledge thereof, and kept in
contrive (d) The statements the regular course or conduct of a business
(c) The statements give a legal activity, and such was the regular practice to
must refer to the significance to the make the memorandum, report, record, or data
occurrence in equivocal act
compilation by electronic, optical or similar
question and its
attending means, all of which are shown by the testimony
circumstances of the custodian or other qualified witnesses, is
(Talidano v. Falcon Maritime & Allied Services, excepted from the rule on hearsay evidence (Rule
Inc., G.R. No. 172031, July 14, 2008) 130 Sec. 45, as amended).
NOTE: Reliability is furnished by the fact that
Res Gestae and Dying Declarations, regularly kept records typically have a high
Distinguished degree of accuracy. The law does not fix any
precise moment when the entries should be
Dying made. It is sufficient if the entry was made within
Part of Res Gestae
Declarations a reasonable period of time so that it may appear
Res gestae may be that A dying declaration to have taken place while the memory of the facts
of the killer himself can only be made by was unimpaired.
after or during the the victim.
killing. Availability or Unavailability of the Entrant
res gestae the Dying declaration is A significant change or innovation under Sec. 45
statement may made only after the is that the availability or unavailability of the
precede, accompany or homicidal has been entrant is no longer material. Under the old rule
be made after the committed. on business entries, it was required that the
homicidal attack act entrant be dead or unavailable to testify.
was committed. (Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 855)

764

Furthermore, the entrant need no longer have
personal knowledge of the information he is
recording, it being sufficient that the record is
made by or from transmission or supply of
information by a person with knowledge thereof.
Under the former Sec. 43 Rule 130, it was
required that the entrant "was in a position to
know the fact therein stated." (ibid.)
Business records are no longer considered as
prima facie evidence. Under the former Sec. 43
Rule 130, business entries were received as prima
facie evidence. (ibid.)
Requisites:
(1) There is a memorandum, report, record or
data compilation of acts, events, conditions,
opinions, or diagnoses, made by writing,
typing, electronic, optical or other similar
means
(2) The memorandum etc. is made at or near
the time of the act, event, etc.
(3) The memorandum etc, is made by, or from
transmission or supply of information by, a
person with knowledge of the act, event,
etc.
(4) The memorandum, etc. is kept in the regular
course or conduct of a business activity.
(5) It was the regular practice of the business
activity to make the memorandum, report,
record, or data compilation by writing,
typing,145 electronic, optical or similar
means.
(6) All of the foregoing conditions are shown by
the testimony of the custodian or other
qualified witnesses. (ibid.)
(i) Entries in the Official Records
Entries in the Official Records (Sec 46. Rule
130)
Entries in official records made in the
performance of his or her duty by a public officer
of the Philippines, or by a person in the
performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein
stated (Rule 130, Sec. 46, as amended).
Requisites:
(1) The entries were made by:
(a) A public officer in the performance of his
duties; or,
(b) A person in the performance of a duty
specially enjoined by law.
(2) Entrant has personal knowledge of the facts
stated by him or such facts were acquired by
him from reports made by persons under a
legal duty to submit the same; and
(3) Such entries were duly entered in a regular
manner in the official records (DST Movers
Corporation vs. People’s General Insurance
Corporation, G.R. No. 198627, January 13,
2016).
Note: While routineness and repetitiveness were
important in the business entries exception under
the former Sec. 43, Rule 130, they have been de-
emphasized in the present Sec. 45 Rule 130. This
is shown by the fact that records of diagnoses or
opinions are included in the business records
exception. What is important is that the records
were kept in the regular course or conduct of a
business activity. (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., p. 856)
Entries in police records made by a police officer
in the performance of the duty especially
enjoined by law are prima facie evidence of the
fact therein stated, and their probative value may
be either substantiated or nullified by other
competent evidence. (Cristobal v. Cristobal, A.C.
No. 12702, November 10, 2020)
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
765
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.
“Business Activity" under Sec. 45 Rule 130
"Business activity" should not be confined to
activities of a commercial enterprise. It should
include activities of any profession, occupation,
and calling of every kind, whether or not
conducted for profit or for legitimate purposes.
Thus the logbook of a security guard is deemed
a business record Even a housewife's budget
journal is a business record. The business or
enterprise maybe legal or illegal. Thus the diary
of a jueteng bookie where he kept records of bets
and winnings is a business record and admissible
to prove the contents thereof if the bookie is dead
or unable to testify. (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., p. 856)
(j) Commercial Lists and the Like (Sec. 47,
Rule 130)
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
(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).
(k) Learned Treatises (Sec 48, Rule 130)
How Introduced as Evidence
1. 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,
2. 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).
Note: History books and published findings of
scientists fall within this exception provided that
an expert on the subject testifies to the expertise
of the writer.
Requisites for the admissibility of learned
treaties
(1) Published treatise, periodical or pamphlet is
on a subject of history, law, science, or art;
and
(2) When the court can take
(a) judicial notice of them; or
(b) when an expert witness testifies that
the author of such is recognized as
766
 expert in that profession. (Sec. 48, Rule
130, ROC, as amended.)
Scientific studies or articles and websites which
were culled from the internet, attached to the
Petition, and were not testified to by an expert
witness are basically hearsay in nature and
cannot be given probative weight. (Paje v.
Casiño, G.R. Nos. 207257, 207276, 207282 &
207366, February 3, 2015)
(l) Testimony or Deposition at a Former
Proceeding (Sec. 49, Rule 130)
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 opportunity to
cross-examine him or her (Rule 130, Sec. 49, as
amended).
Requisites:
For Sec. 49 of Rule 130 to apply, the following
requisites must be satisfied:
(1) That the Witness 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).
For the admissibility of a former testimony or
deposition that the adverse party must have had
an opportunity to cross- examine the witness or
the deponent in the prior proceeding. The issues
involved in both cases must, at least, be
substantially the same; otherwise, there is no
basis in saying that the former statement was —
or would have been — sufficiently tested by
cross-examination or by an opportunity to do so
(Republic vs. Sandiganbayan, G.R. No. 152375,
December 13, 2011).
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).
767
(m) Residual Exception (Sec 50, Rule
130)
Under this rule, although a statement may not be
specifically covered by any of the other
exceptions to the hearsay rule despite having
equivalent circumstantial guarantees of
trustworthiness, the same is admissible if the
court determines that the following requirements
are present:
(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;
(c) the general purposes of the Rules and the
interests of justice will be best served by
admission of the statement into evidence;
and
(d) the proponent makes known to the adverse
party his or her intention to offer the
statement and the particulars of it, including
the name and address of the declarant,
sufficiently in advance of the hearing, or by
the pre-trial stage in the case of a trial of the
main case.
The purpose of the last requirement is to remove
any element of surprise and to provide the
adverse party with a fair opportunity to prepare
to meet such statement.
Non-hearsay; Independently Relevant
Statements
These are statements which are relevant
independently of whether they are true or not.
They are neither hearsay nor an exception to the
hearsay rule as the purpose thereof is not to
prove the truth of the declaration or document. It
merely proves the fact that a statement was
made and not the truth of the fact asserted in the
statement. (Estrada v. Desierto, G.R. Nos.
146710-15 & 146738, March 2, 2001)
The hearsay rule, however, does not apply
to independently relevant statements. While the
testimony of a witness regarding a statement
made by another person given for the purpose of
establishing the truth of the fact asserted in the
statement is clearly hearsay evidence, it is
otherwise 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. 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 the doctrine
of independently relevant statements. (Arriola v.
People, G.R. No. 199975, February 24, 2020, J.
Hernando)
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).
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:
(a) those statements which are the very facts
in issue, and
768
 (b) Those statements which are circumstantial (1) Opinion of Expert
evidence of the facts in issue. The second Witness on a matter
class includes the following: requiring special knowledge,
• Statements of a person showing his skill, experience or training
state of mind; that is, his mental or education, which he is
condition, knowledge, belief, intention, shown to possess (Rule 130,
ill will and other emotions Sec. 52, as amended);
• Statements that may identify the date,
place and condition as illness and the (2) Opinion of Ordinary
like Witness regarding:
• Statements of a person from which an (a) The Identity of a person
inference may be drawn as to the state about whom he has
of mind of another person; i.e., the adequate knowledge
knowledge, belief, good or bad faith (Rule 130, Sec. 53[a], as
noticed of the latter amended);
• Statements that may identify the date, (b) A Handwriting with which
place and person in question he has sufficient
• Statements showing the lack of familiarity (Rule 130,
credibility of a witness (Estrada vs. Sec. 53[b], as amended
Desierto, G.R. Nos. 146710-15, April 3, );
2001). (c) The Mental sanity of a
person with whom he is
In the report of Special Investigator, Recio sufficient acquainted
supposedly admitted that he had not actually (Rule 130, Sec. 53[c], as
conducted an investigation and ocular inspection
amended); and
(d) The witness’ Impression
of the parcel of land. Cartagena’s statement on
of the emotion, behavior,
Recio’s alleged admission may be considered as condition or appearance
"independently relevant." A witness may testify of a person (Rule 130,
as to the state of mind of another person -- the Sec. 53, as amended)
latter’s knowledge, belief, or good or bad faith --
and the former’s statements may then be (1) Opinion of Expert Witness
regarded as independently relevant without
violating the hearsay rule (Republic of the The opinion of a witness on a matter requiring
Philippines vs. Heirs of Alejaga, G.R. No. 146030, special knowledge, skill, experience or training or
December 3, 2002). education which he or she shown to possess, may
be received in evidence (Rule 130, Sec. 52, as
7. OPINION RULE amended).

Opinion - A person’s thought belief, or inference,
especially a witness’s view about facts in dispute,
as opposed to personal knowledge of the facts
themselves. (Black’s Law Dictionary, 2004)
General The opinion of a witness is not
Rule admissible (Rule 130, Sec. 51,
as amended).
Exceptions Admissible opinion evidence
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.
The opinion of a witness on a matter requiring
special knowledge, skill, experience or training or

769
education (special TEKES) which he is shown to
possess. The expert opinion may be received in
evidence. (Riguera, Primer-Reviewer on Remedial
Law, 2022 Ed., p. 915)
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).
Unlike an ordinary witness, the expert witness
should be qualified before he is allowed to testify.
Qualification is made by showing that the witness
possesses special knowledge, skill, experience or
training. The lack of qualification should be timely
raised by the adverse party before the witness is
presented to testify; otherwise the objection is
deemed waived. (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., p. 916)
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).
The use of the word “may”, signifies that the use
of opinion of expert witness is permissive and not
mandatory on the part of the courts. It only
assists the court in the determination of the issue
before it, and is for the court to adopt or not to
adopt depending on its appreciation of the
attendant facts and the applicable law. (Tabao vs.
People, G.R. No. 187246, 20 July 2011)
Expert opinions are not ordinarily conclusive.
They are generally regarded as purely advisory in
character. The courts may place whatever weight
they choose upon and may reject them, if they
find them inconsistent with the facts in the case
or otherwise unreasonable. When faced with
conflicting expert opinions, as in this case, courts
give more weight and credence to that which is
more complete, thorough, and scientific.
(Gagoomal v. Bedona, A.C. No. 10559, June 10,
2019
a. Opinions of Handwriting Experts
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
(Gepulle-Garpo vs. Spouses Garabato, G.R. No.
200013, 14 Jan. 2015)
b. Expert Opinion 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
770
surgeon (Li v. Spouses Soliman, G.R. No. 165279,
June 7, 2011)
c. 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 (Carullo-Padua v. Padua, G.R. No.
208258, April 27, 2022, J. Hernando)
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).
II. Opinion of Ordinary Witness
The opinion of a witness for which proper basis is
given, may be received in evidence regarding:
(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. 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).
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).
General Evidence of a person’s
Rule 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 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).
Note: Common reputation is an
exception to the Hearsay Rule.
Reputation is the general
opinion of people in the
community as to a person’s
771
 character traits, and is court finds that such
therefore evidence of character. evidence is material and
Exceptions a. Criminal Cases relevant to the case (Rape
As to the accused Shield, R.A. No. 8505, Sec.
The character of the offended 6).
party may be proved if it tends b. Civil Cases:
to establish in any reasonable (1) Evidence of the moral
degree the probability or character of a party in a
improbability of the offense civil case is admissible only
charged. when pertinent to the issue
The accused may prove his/her of character involved in the
good moral character pertinent case [Rule 130, Sec.
to the moral trait involved in the 54(b)].
offense charged. (2) Evidence of the good
character of a witness is
As to the Prosecustion not admissible until such
They may not prove the bad character has been
moral character of the accused impeached [Rule 130, Sec.
which is pertinent to the moral 54(c)].
trait involved in the offense
charged, unless in rebuttal Manner of Proving Character
when the accused opens the
issue by introducing evidence of
By Reputation or By Specific
his good moral character.
Opinion Instances of
Conduct
As to the offended party
(a) By testimony as to In cases in which
His good or bad moral character
reputation; character or a trait of
may be proved as long as it
(b) By testimony in character of a person
tends to establish in any
the form of an is an essential
reasonable degree the
opinion; or element of a charge,
probability or improbability of
(c) On cross- claim or defense,
the offense charged.
examination, proof may also be
inquiry is made of specific
Exceptions to the
allowable into instances of that
Exception:
relevant specific person’s conduct
(1) Proof of the bad character
instances of
of the victim in a murder
conduct
case is NOT admissible if
the crime was committed (Rule 130, Sec. 54[c], as amended).
through treachery and
premeditation (People vs.
Lee, G.R. No. 139070, May C. Criminal and Civil Cases
29, 2002).
(2) In prosecution for rape, Evidence of the good character of a witness is not
evidence of complainant’s
admissible until such character has been
past sexual conduct,
opinion thereof or of impeached.
his/her reputation shall not
be admitted unless, and In all cases in which evidence of character or a
only to the extent that the trait of character of a person is admissible, proof

772
may be made by testimony as to reputation or by
testimony in the form of an opinion. On cross Burden of Proof Burden of Evidence
examination, inquiry is allowable into relevant It is the duty of a It is the duty of a
specific instances of conduct. party to present party to present
evidence on the evidence sufficient to
In cases in which character or a trait of a facts necessary to establish or rebut a
character of a person is an essential element of a establish his or her fact in issue to
charge, claim or defense, proof may also be made claim or defense by establish prima facie
of specific instances of that person’s conduct. the amount of case. (Sec. 1, Rule
(Sec. 54[c], Rule 130, ROC, as amended) (Sec. evidence required 131, ROC, as
54(c), Rule 130, ROC, as amended) by law. (Sec. 1, amended)
Rule 131, ROC, as
G. BURDEN OF PROOF AND amended) Burden of evidence is
PRESUMPTIONS (RULE 131) that logical necessity
Burden of proof or which rests upon a
Meaning of Burden of Proof “onus probandi” party at any particular
traditionally refers time during the trial to
Burden of proof is the duty of a party to present to the obligation of create a prima facie
evidence on the facts in issue necessary to a party to the case in his favor or to
establish his claim or defense by the amount of litigation to overthrow one created
evidence required by law. (Tan, Evidence, A persuade the court against him.
Compendium for the Bar, 2019 Ed., p. 460) that he is entitled to
relief.
Case law has defined "burden of proof" as the
Duty of a party to Duty of the party to go
duty to establish the truth of a given proposition
present evidence to forward with the
or issue by such quantum of evidence as the law
establish his claim evidence to overthrow
demands in the case at which the issue arises. In
or evidence by the the prima facie
civil cases, the burden of proof is on the plaintiff
amount of evidence evidence against him
to establish his case by preponderance of
required by law, (Bautista vs.
evidence, i.e., superior weight of evidence on the
which is Sarmiento, G.R. No. L-
issues involved. "Preponderance of evidence"
preponderance of 45137, 23 Sept. 1985)
means evidence which is of greater weight, or
evidence in civil
more convincing than that which is offered in
cases. (Supreme
opposition to it. (Republic of the Philippines vs.
Transliner, Inc. vs.
Alfredo R. De Borja, G.R. No. 187448, January 9, CA, G.R. No.
2017) 125356, 21 Nov.
2001
Meaning of Burden of Evidence
The burden of proof Burden of evidence
Burden of evidence— is that logical necessity
does not shift as it shifts from party to
which rest upon a party at any particular time
remains throughout party depend- ing on
during the trial to create a prima fade case in his
the trial with the the exigencies of the
favor or to overthrow one created against him.
party upon whim it case in the course of
(Tan, Evidence, A Compendium for the Bar, 2019
is im- posed. (Sec. 1 the trial. (Bautista, et
Ed., p. 461)

773
 Rule 131, ROC, as al. us. Sarrniento, et Meaning of Presumption
amended) al., L-45137, Sept. 23,
1985) A presumption is an assumption of fact resulting
Burden of proof Burden of evidence is from a rule of law which requires such fact to be
generally generally determined assumed from another fact or group of facts
determined by the by the developments found or otherwise established in the
pleadings filefd by of the trial, or by the action. It is an inference of the existence or non-
the party. provisions of existence of a fact which courts are permitted to
substantive law or draw from proof of other facts. However, a
procedural rules which presumption is not evidence, but merely affects
may relieve the party the burden of offering evidence. Under Section
from presenting 3, Rule 131, disputable presumptions are
evidence of the facts satisfactory, if uncontradicted, but may be
alleged. contradicted and overcome by other evidence, as
(ibid.) in this case. (Estate of Poblador, Jr. v. Manzano,
G.R. No. 192391, June 19, 2017)
Test of determining who has the burden of
proof Presumptions are not allegations, nor do they
Burden of proof shall be determined as a follows, supply their absence. Presumptions are
to wit: conclusions. They do not apply when there are no
(1) In criminal cases —the burden ofproof lies in facts or allegations to support them (University of
the party prosecution; Mindanao, Inc. vs. Bangko Sentral ng Pilipinas,
(2) In civil cases — the burden of proof lies in G.R. No. 194964-65, January 11, 2016)
the party who substantially asserts the
affirmative allegations.
Where there is an entire lack of competent
(3) In any other proceedings — the burden of
proof lies on the party who would be evidence to the contrary, and unless or until it is
defeated if no evidence were given on either rebutted, it has been held that a presumption
side. (ibid., p. 462) may stand in lieu of evidence and support a
finding or decision. Perforce, a presumption must
Basis in determining the burden of proof be followed if it is uncontroverted. This is based
The party who alleges a fact has the burden of on the theory that a presumption is prima facie
proving it. The burden of proof may be on the proof of the fact presumed, and unless the fact
plaintiff or the defendant. It is on the defendant thus established prima facie by the legal
if he alleges an affirmative defense which is presumption of its truth is disproved, it must
not a denial of an essential ingredient in the stand as proved (Tison vs. Court of Appeals, G.R.
plaintiff’s cause of action, but is one which, if No. 121027, July 31, 1997).
established, will be a good defense — i.e., an
"avoidance" of the claim. (Parcon-Song vs. Ordinarily, when a fact is presumed, it implies
Parcon, G.R. No. 199582, July 7, 2020) that the party in whose favor the presumption
exists does not have to introduce evidence to
establish that fact, and in any litigation where
that fact is put in issue, the party denying it must
bear the burden of proof to overthrow the
presumption (ibid.)

774
Classification of Presumptions: Need not ot be Has to be pleaded and
pleaded or proved if proved.
1. Presumption of Law (Presumptio Juris) is the facts on which
a deduction which the law expressly directs they are based are
to be made from the facts proven. It is a duly averred and
presumption determined by law and it
established
consists of a presumption juris et de jure or
conclusive presumptions, which is not (Robert P. Wa–acon vs. People of the Philippines,
permitted to be overcome by any proof to the G.R. No. 164575, December 6, 2006).
contrary, however strong; and a presumption
juris tantum or disputable presumption, Kinds of Presumptions of Law
which is presumption that stands unless
rebutted by evidence. In the absence of a
(a) Conclusive Presumption (juris et de jure)
legal provision or ruling, there is no
is when the presumption becomes
presumption of law.
irrebuttable upon the presentation of the
evidence and any evidence tending to rebut
2. Presumption of Fact (Presumptio Hominis) the presumption is not admissible. (Riano,
is a deduction which reason draws from facts Evidence [The Bar Lecture Series], 2022 Ed.,
proved without an express direction from the p. 72).
law to that effect (Martin vs. CA, G.R. No.
82248 January 30, 1992). (b) Disputable Presumption (juris tantum) is
that which may be contradicted by other
Presumptions of facts are borne by reason evidence (Riano, Evidence [The Bar Lecture
through human experience. Those which the Series], 2022 Ed., p. 72).
experience of mankind has shown to be valid,
founded on general knowledge and information; (a) Conclusive Presumption
essentially an inference.
Classes of Conclusive Presumptions:
Presumption of Law and Presumption of
Fact, Distinguished (1) Estoppel In Pais– Whenever a party has,
by his own declaration, act, or omission,
intentionally and deliberately led another to
PRESUMPTION OF PRESUMPTION OF
believe a particular thing true, and to act
LAW FACT upon such belief, he cannot, in any litigation
Certain inference A discretion Is vested arising out of such declaration, act or
must be made in the tribunal as to omission, be permitted to falsify it (Rule 131,
whenever the facts drawing the Sec. 2[a], as amended).
appear which furnish inference.
the basis of the (2) Estoppel by Deed– The tenant is not
permitted to deny the title of his landlord at
inference.
the time of the commencement of the
Reduced to the fixed Derived wholly and relation of landlord and tenant between
rules and form part of directly from the them (Rule 131, Sec. 2[b], as amended).
the system of circumstances of the
jurisprudence particular case by NOTE: Estoppel may attach even though the
means of the common landlord does not have title at the
experience of man commencement of the relations. It may inure in
favor of the successor. (Golden Horizon Realty

775
Corporation vs. St Chuan, G.R. No. 145416,
September 21, 2001)
Instances of Conclusive Presumptions:
(a) 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
(b) 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 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:
(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);
(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).
776
(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 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, June 8, 2000).
Distinguish Estoppel from Waiver
A waiver is a voluntary and intentional relinquish
ment or abandonment of a known legal right or
privilege." To be valid and effective, the waiver
must be couched in clear and unequivocal terms
leaving no doubt as to the intention of a party to
give up a right or benefit which legally pertains
to it. (Santos v. Integrated Pharmaceutical, Inc.,
G.R. No. 204620, July 11, 2016)
An equitable estoppel may arises where a
person, who by force of circumstances is under a
duty to another to speak, refrains from doing so
and thereby leads the other to believe in the
existence of a state of facts in reliance on which
he acts to his prejudice. Silence may support
an estoppel whether the failure to speak is
intentional or negligent. (People v. Industrial
Insurance Co., Inc., G.R. No. 222955
(Resolution), October 16, 2019)
(b) Disputable Presumption
This refers to a presumption which is satisfactory
if uncontradicted but may be contradicted and
overcome by other evidence. (Sec. 3, Rule 131,
ROC, as amended)
Disputable Presumptions under Section 3m
Rule 131
(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
777
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).
To overcome the accused's constitutional
presumption of innocence, the prosecution
must prove that a crime was committed and
that the accused is the person responsible.
(Pulido v. People, G.R. No. 220149, July 27,
2021, J. Hernando)
In every criminal case where the accused
enjoys the presumption of innocence, an
acquittal is warranted unless the accused’s
guilt is shown beyond reasonable doubt.
(People v. Palma Gil-Roflo, G.R. Nos. 249564
& 249568-76, March 21, 2022, J. Hernando)
(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 willfully suppressed
would be adverse if produced;
If it shows that a person has attempted to
falsify, fabricate, suppress or destroy
evidence, such may be justly construed as an
indication of his consciousness that his case
or defenses lacks merit or that the truth is
disclosed would be detrimental to his
interest.
(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;
Reasons:
(a) Innocence and not wrongdoing is
to be presumed;
(b) An official oath will not be violated;
and
(c) A republican form of government
cannot survive long unless a limit
is placed upon controversies and
certain trust and confidence
reposed in each governmental
department or agent at least to the
extent of such presumption.
This applies to both criminal and civil
cases. When police officers have no
motive to testify falsely against the
accused, courts are inclined to uphold
the presumption of regularity in the
performance of their duties. (People vs.
Enriquez, G.R. No. 214503, June 22,
2016)
(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
778
 arbitration were laid before the
arbitrators and passed upon by them;
(16) That private transactions have
been fair and regular;
An individual intends to do the right rather
than the wrong and intends to do only what
he has the right to do, in the absence of the
proof to the contrary, there is a presumption
that all men act fairly, honestly and in good
faith
(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;
When a letter or other mail matter is
addressed and mailed with postage
prepaid there is rebuttable presumption
of fact that it was received by the
addresses as soon as it could have been
transmitted to him in the ordinary
course of the mail (Francisco, Evidence
11th ed. p. 76)
(23) That after an absence of seven years, it
being unknown whether or not the
absentee still lives, he is considered
dead for all purposes, except for those
of succession which shall be an absence
of ten years.
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
779
 each other and who live exclusively with (34) That a printed or published book,
each other as husband and wife without purporting contain reports of cases
the benefit of marriage or under void adjudged in tribunals of the country
marriage, has been obtained by their where the book is published, contains
joint efforts, work or industry. correct reports of such cases;
(29) That in cases of cohabitation by a man (35) That a trustee or other person whose
and a woman who are not capacitated duty it was to convey real property to a
to marry each other and who have particular person has actually conveyed
acquired properly through their actual it to him when such presumption is
joint contribution of money, property or necessary to perfect the title of such
industry, such contributions and their person or his successor in interest;
corresponding shares including joint (36) That except for purposes of succession,
deposits of money and evidences of when two persons perish in the same
credit are equal. calamity, such as wreck, battle, or
(30) That if the marriage is terminated and conflagration, and it is not shown who
the mother contracted another died first, and there are no particular
marriage within three hundred days circumstances from which it can be
after such termination of the former inferred, the survivorship is determined
marriage, these rules shall govern in from the probabilities resulting from the
the absence of proof to the contrary: strength and the age of the sexes,
according to the following rules:
WHEN CHILD
PRESUMPTION
WAS BORN PRESUMED
SITUATION
Before 180 days Considered to have SURVIVOR
after the been conceived during Both <15 y/o The older
solemnization of the the former marriage, Both >60 y/o The younger
subsequent provided it be born One <15 y/o, the The <15 y/o one
marriage within 300 days after other >60 y/o
the termination of the Both >15 y/o and The male
former marriage <60 y/o, of different
After 180 days Considered to have sexes
following the been conceived during Both >15 y/o and The older
celebration of the the subsequent <60 y/o, of the same
subsequent marriage, even though sex
marriage it be born within the One <15 y/o or >60 The one between
300 days after the y/o, the other those ages
termination of the between those ages
former marriage
(37) That if there is a doubt, as between two
(31) That a thing once proved to exist or more persons who are called to
continues as long as is usual with things succeed each other, as to which of
of the nature; them died first, whoever alleges the
(32) That the law has been obeyed; death of one prior to the other, shall
(33) That a printed or published book, prove the same.
purporting to be printed or published by
public authority, was so printed or
published;

780
 In the absence of proof, they shall be
considered to have died at the same time
(Rule 131, Sec. 3, as amended).
Evidence Suppressed Would be Adverse if
Produced, When Presumed
(a) The evidence tends to prove a material
fact which imposes a liability on a party;
(b) That party has it in his power to produce
evidence;
(c) The evidence, from its very nature, must
overthrow the case made against the
party if it is not founded on fact; and,
(d) 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
(ibid.).
The adverse presumption of suppression of
evidence is not applicable when:
(a) the evidence is at the Disposal of both
parties;
(b) the suppression was Not willful;
(c) the evidence is merely Corroborative or
cumulative; and,
(d) 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 Conditio”" 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).
Presumptions in Civil Actions and
Proceedings; Against an Accused in
Criminal Cases
(a) In Civil Actions and Proceedings
781

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
considerations of policy shall apply. If
considerations of policy are equal weight, neither
presumption applies (Rule 131, Sec. 5).
Inconsistent Presumptions - If the
presumptions are inconsistent, the presumption
that is founded upon weightier considerations of
policy shall apply. If considerations of policy are
of equal weight, neither presumption applies.
(Sec. 5, Rule 131, ROC, as amended)
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).
(b) Presumption Against an Accused in
Criminal 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:
(a) Be an element of the offense charged; or
(b) Negate a defense.
H. PRESENTATION OF EVIDENCE
(RULE 132)
1. EXAMINATION OF WITNESS
General The examination of witnesses
Rule presented in a trial or hearing
shall be given orally in open
court, and under oath or
affirmation. Unless the witness
is incapacitated to speak, or
the questions calls for a
different mode of answer, the
answers of the witness shall be
given orally (Rule 132, Sec. 1).
Exceptions (1) When the witness is
incapacitated to speak; or
(2) When the question calls for
a different mode of answer.
(3) In civil cases, by depositions
pursuant to and under the
limitations of Rules 23 and
782
 24;
(4) 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;
(5) 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 (Sec. 15, Rules on
Summary Procedure);
(6) 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
[The Bar Lecture Series]
Volume I, 2022 Ed., p. 287);
and
(7) Under the Judicial Affidavit
Rule, the judicial affidavit
shall take the place of direct
testimonies of witnesses
(Sec. 2, Judicial Affidavit
Rule).
Purpose:
The reason for the requirement obviously is to
enable the court to judge the credibility of the
witness by the manner he testifies, by his
intelligence, and by hisappearance. (People v.
Servano, G.R. Nos. 143002-03, July 17, 2003)
Oath and Affirmation, Distinguished
Oath Affirmation
An appeal made by a A solemn and formal
person to a God to declaration or
witness the truth of assertion that the
what he declares, and witness will tell the
an imprecation of truth, etc., this being
Divine punishment or substituted for an
vengeance upon him oath in certain cases.
if what he says is
false.
NOTE: The object if
the rule is to affect
the conscience of the
witness to comple him
to speak the truth,
and to lay him opne to
punishment for
perjury if he testifies
falsely.
NOTE: The option to take either an oath or
affirmation is given to the witness and not to the
court. (Riano, Evidence, [The Bar Lecture Series],
2022 Ed., p. 253).
In order that one may be competent as a witness,
it is not necessary that he has a definite
knowledge of the difference between his duty to
tell the truth after being sworn and before, or that
he is able to state it, but it is necessary that he
be conscious that there is a difference. (People
vs. Bisda, G.R. No. 140895, 17 July 2003)
The One-Day Examination of Witness Rule
A witness has to be fully examined in one (1) day
only, shall be strictly adhered to subject to the
court’' 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)].
Requisites for transcript to be deemed
prima facie a correct statement of the
proceedings:
783
(a) Made by the official stenographer, steno (4) A person witnesses are
typist or recorder; and authorized by a customarily
(b) Certified as correct by him. (Rule 132, Sec. statute to be excepted from the
2) present. rule unless the
circumstances
The entire proceedings of a trial or hearing, The court may also warrant
including the questions propounded to a witness cause witnesses to be otherwise; and
and his or her answers thereto, the statements kept separate and to (5) Expert witnesses
be prevented from are not excluded
made by the judge or any of the parties, counsel,
conversing with one until production of
or witnesses with reference to the case, shall be another, directly evidence bearing
recorded by means of shorthand or stenotype or through upon the question
by other means of recording found suitable by the intermediaries, until or subject as to
court (Rule 132, Sec. 2). all shall have been which they have
examined. (Sec. 15, been called or
Rule 132, ROC, as unless liable to be
NOTE: These shall be recorded by means of
amended) influenced by the
shorthand or stenotype or by other means of testimony of the
recording found suitable by the court. (Ibid.) other witnesses.

Exclusion and Separation of Witnesses a) RIGHTS AND OBLIGATIONS OF A

WITNESS:
General Rule Exceptions
The court, motu (1) An accused in a (1) Rights of a Witness
proprio or upon criminal case as it (a) To be protected from Irrelevant,
motion, shall order is his improper, or insulting questions, and
witnesses excluded constitutional from harsh or insulting demeanor;
so that they cannot right to be present (b) Not to be Detained longer than the
hear the testimony of at all stages of the interests of justice require;
other witnesses. This proceedings; (c) Not to be examined except only as to
rule does not (2) Parties to the matters Pertinent to the issue;
authorize the litigation will (d) Not to give an answer which will tend to
exclusion of: generally not be Subject him or her to a penalty for an
(1) A party who is a excluded, their offense, unless otherwise provided by
natural person; presence usually law; and
(2) A duly being necessary to (e) Not to give an answer which will tend to
designated a proper Degrade his or her reputation, unless it
representative of management of be to the fact at issue or from which the
a juridical entity the case; fact in issue would be presumed of his or
which is not a (3) Party in interest her previous final conviction for an
party to the though not a party offense (Rule 132, Sec. 3, as amended).
case; to the record and
(3) A person whose an agent of such Note: The exception in number (4) above refers
presence is party, if the to immunity statutes wherein the witness is
essential to the presence of such granted immunity from criminal prosecution for
presentation of agent is
offenses admitted in his testimony(Section 14,
the party’s necessary;
cause; or (4) Officers and R.A. No. 6981 or the Witness Protection Act).
complaining
(2) Obligation of a Witness

784
To answer questions, although his or her answer
may tend to establish a claim against him or her Use of Immunity Transactional
(Rule 132, Sec. 3, as amended). Immunity
Prohibits the use of Grants immunity to
NOTE: The trial court’s duty is to protect every the witness' the witness from
compelled testimony prosecution for an
witness against oppressive behavior of an
and its fruits in any offense to which his
examiner and this is especially true where the manner in connection compelled testimony
witness is of advanced age. (Lee v. CA, G.R. No. with the criminal relates.
177861, 13 July 2010) prosecution of the
witness. It is immunity from
Kinds of Immunity Statutes prosecution by reason
It is immunity from or on the basis of the
1. Transactional Immunity
use of any statement testimony.
● Grants immunity to the witness from
given by the witness.
prosecution for an offense to which his
compelled testimony relates (Galman vs. By the grant of use- Transactional
Pamaran, G.R. Nos. 71208-09, August 30, and-derivative-use immunity is broader in
1985). immunity, a witness is the scope of its
● Broader in the scope of its protection in the only assured that his protection. By its
sense that by its grant, a witness can no or her particular grant, a witness can
longer be prosecuted for any offense testimony and no longer be
whatsoever arising out of the act or evidence derived from prosecuted for any
transaction to which the testimony relates it will not be used offense whatsoever
(Tanchanco vs. Sandiganbayan, G.R. Nos. against him or her in arising out of the act
141675-96, November 25, 2005). subsequent or transaction to
prosecution. which the testimony
relates.
2. Use-and-Derivative-Use Immunity
(Tanchanco vs. Sandiganbayan, G.R. Nos.
● Prohibits the use of witnes’' compelled
testimony and its fruits in any manner in 141675-96, November 25, 2005).
connection with the criminal prosecution
of the witness (Galman vs. Pamaran, Testifying in Narrative Form
G.R. Nos. 71208-09, August 30, 1985). General Rule Exception
● A witness is only assured that his or her The The court may allow
particular testimony and evidence witness‘testimony the child witness to
derived from it will not be used against should be elicited by testify in a narrative
him or her in a subsequent prosecution way of questions and form
(Tanchanco vs. Sandiganbayan, G.R. answers, and not in (A.M. No. 004-07-SC,
Nos. 141675-96, November 25, 2005). the narrative form. Rule on Examination
The reason is that if of a Child Witness,
A witness need not worry that the oral witness testifies in Sec. 19).
examination might subject him or her to narrative form, the
badgering by adverse counsel. The trial court‘s adverse party is
duty is to protect every witness against deprived of the
opportunity to object
oppressive behavior of an examiner and this is
to the testimony
especially true where the witness is of advanced beforehand (Riguera,
age (Lee vs. Court of Appeals, G.R. No. 177861, Primer-Reviewer on
July 13, 2010). Remedial Law, 2022
Ed., p. 957)

785

Recantation of a Witness
Courts must NOT automatically exclude the
original statement based solely on recantation. It
should determine which statement should be
given credence through a comparison of the
original and the new statements, applying the
general rules of evidence (PLDT vs. Bolso, G.R
No. 159701, August 17, 2007).
Obligation of a Witness in Open Court
General A witness must answer
Rule questions, although his or her
answer may tend to establish a
claim against him or her. (Sec.
3, Rule 132, ROC, as amended)
Refusal to answer as a witness
constitutes direct contempt.
(Sec. 1, Rule 71, ROC, as
amended)
Exceptions A witness may validly refuse to
answer on the basis of the
following;
(1) Right against self-
incrimination – If his answer
will tend to subject him to
punishment for an offense;
or
NOTE: The constitutional
assurance of the right against
self-incrimination is a If it refers to his previous final
prohibition against the use of
physical or moral compulsion to
extort communications from the
accused. It is simply a
prohibition against legal
process to extract from the
accused’s own lips, against his
will, admission of his guilt. (Ong
v. Sandiganbayan & Office of
the Ombudsman, G.R. No.
126858, 16 Sept. 2005) Hence,
a purely mechanical act
required to be done or
produced from the accused is
not covered by the right against
self-incrimination. (Beltran vs.
Samson, G.R. No. 32025, 23
Sept. 1929)
The privilege against self-
incrimination must be invoked
at the proper time, and the
proper time to invoke it is when
a question calling for an
incriminating answer is
propounded. Also, a person
who has been summoned to
testify cannot decline to appear,
nor can he decline to be sworn
as a witness and no claim of
privilege can be made until a
question calling for an
incriminating answer is asked.
(Gonzales vs. Secretary of
Labor, G.R. No. L-6409, 05 Feb.
1954).
(2) Right against self-
degradation – If his answer
will have a direct tendency
to degrade his character.
Exception A witness may not invoke the
to the right against self-degration if:
exception
Such question is directed to the
very fact at issue or to a fact
from which the fact at issue
would be presumed; or
conviction for an offense.
(Regalado, Remedial Law Compendium Vol. 2,
2008 Ed., p. 842)
Refusal of a Witness to take the Witness
Stand
General A witness may not refuse to
Rule take the witness stand.
Exceptions (1) An accused in a criminal
case; or
(2) A party who is not an
accused in a criminal case is
allowed not to take the
witness stand – in
786
 administrative
cases/proceedings that
partook of the nature of a
criminal proceeding or
analogous to a criminal
proceeding. As long as the
suit is criminal in nature, the
party thereto can altogether
decline to take the witness
stand.
Right against Self-Incrimination is NOT
available under the Witness Protection
Program
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act
cannot refuse to testify or give evidence or
produce books, documents, records or writings
necessary for the prosecution of the offense or
offenses for which he has been admitted into the
Program on the ground of the constitutional right
against self-incrimination but he shall enjoy
immunity from criminal prosecution and cannot
be subjected to any penalty or forfeiture for any
transaction, matter or thing concerning his
compelled testimony or books, documents,
records and writings produced. (Sec. 14, R.A. No.
6981)
Order in the examination of an individual
witness
(1) Direct examination by the proponent.
(2) Cross-examination by the opponent.
(3) Re-direct examination by the proponent.
(4) Re-cross-examination by the opponent.
(1) Direct examination
It is the examination-in- chief of a witness by the
party presenting him or her on the facts relevant
to the issue (Rule 132, Sec. 5, as amended).
Submission of Judicial Affidavits and
Exhibits in Lieu of Direct Testimonies
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 witness’
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:
(a) Names of witnesses who will be presented
to prove a party’s claim or defense;
(b) Summary of the witness 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]).
(2) Cross-Examination
787
Upon the termination of the direct examination, anything connected matters inquired
the witness may be cross-examined by the therewith. about in the direct
adverse party on any relevant matter, with examination.
sufficient fullness and freedom to test his or her
accuracy and truthfulness and freedom from Witness may be cross-examined by the
interest or bias, or the reverse, and to elicit all adverse party
important facts bearing upon the issue (Rule 132, (1) As to any relevant matter;
(2) With sufficient fullness and freedom, to test
Sec. 6, as amended).
his accuracy and truthfulness and freedom
from interest or bias, or the reverse; and
Purpose: (3) To elicit all important facts bearing upon the
(a) To discredit the witness; issue.
(b) To discredit the testimony of the witness;
(c) To elicit admissions from a witness; and Doctrine of Incomplete Testimony
(d) To clarify certain matters.
General Rule Exception
The cross-examination of a witness is a When cross- Wehere the
prerogative of the party against whom the examination cannot be prosecution witness
witness is called. The purpose of cross- done or completed due was extensively
examination is to test the truth or accuracy of the to causes attributable cross-examined on
statements of a witness made on direct to the party who the material points
examination. The party against whom the witness offered the witness, and thereafter failed
the incomplete to appear and
testifies may deem any further examination
testimony is rendered cannot be produced
unnecessary and instead rely on any other incompetent and despite a warrant of
evidence theretofore adduced or thereafter to be should be stricken from his arrest, the
adduced or on what would be believed is the the record (People of striking out is not
perception of the court thereon. Certainly, the the Philippines vs. warranted. (People
trial court is not bound to give full weight to the Seneris, G.R. No. L- v. Gorospe, G.R. No.
testimony of a witness on direct examination 48883, August 6, 1980) 51513, 15 May
1984)
merely because he is not cross- examined by the
other party (People of the Philippines vs. Fabre,
Effect of death or absence of a witness after
G.R. No. 146697, July 23, 2002).
the direct examination by the proponent

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 Commonly known as
the ― “Scope-of- the Wide-Open Rule.
Direct Rule.” The The witness may be
cross-examination of fully cross-examined
the witness shall be upon all matters
limited to the matters material to the issue,
taken up in the direct the examination not
examination or being confined to the
(1) 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)
(2) If the witness was partially cross-examined
but died before the completion of his cross-
examination, his testimony on direct may be

788
 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).
(3) 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).
(3) 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.
(4) Re-cross-examination
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
After the examination of a witness by both sides
has been concluded, the witness may be recalled.
General Rule: 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).
Exceptions:
(1) The examination has not been concluded; or
(2) If the recall of the witness was expressly
reserved by a party with the approval of the
court. In these two cases the recall of a
witness is a matter of right. (Regalado,
Remedial Law Compendium Vol. 2, 2008 Ed.,
p. 848)
Exclusion and Separation of Witnesses
General Rule Exceptions
The court, motu (a) A party who is a Natural
proprio or upon person;
motion, shall (b) A duly designated
order the Representative of a
witnesses juridical entity which is
excluded so that a party to the case;
they cannot hear (c) A person whose
the testimony of presence is Essential to
other witnesses. the presentation of the
party‘s cause; or
(d) A person authorized by
statute to be present.

789

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).
b) 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:
(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 1I), 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
and facilitate the ascertainment of truth (People
v. Ilogon, G.R. No. 206294, June 29, 2016).
Note: A witness may be considered as unwilling
or hostile only if so declared by the court upon
adequate showing of his or her:
a. Adverse interest;
b. Unjustified reluctance to testify; or
c. Having Misled the party into calling him or her
to the witness stand (Rule 132, Sec. 13, as
amended
Misleading question
– one which assumes as true a fact not yet
testified to by the witness, or contrary to that
which he has previously stated (Rule 132, Sec.
10, as amended).
Note: Misleading questions are never allowed;
there are no exceptions (Ibid.).
c) IMPEACHMENT OF WITNESS
Impeachment of a witness means to destroy or
put in doubt the credibility of the witness or his
testimony. It is not limited to showing that the
witness is lying but also to show that witness may
be mistaken in his observation or narration
(Riguera, Primer-Reviewer on Remedial Law,
2022 Ed., p. 966)
Impeachment is an attack against the credibility
of a witness (Sheppard vs. State, 145 S.E. 654;
Words & Phrases, 1940 ed., Vol. 20, pp. 195,
196). It constitutes then a grave challenge to a
witness’ veracity (People vs. Kali, G.R. No. L-
1175, December 22, 1948)
(1) Impeachment of Adverse Party's Witness
Means of Impeaching Adverse Party‘s Witness:
(a) Contradictory evidence;
(b) By evidence that his General reputation for
truth, honesty, or integrity is bad;
(c) By Prior inconsistent statements; or
790
(d) Conviction.
Note: A witness may not be impeached by
evidence of particular wrongful acts, except that
it may be shown by the examination of the
witness, or the record of the judgment, that he
or she has been convicted of an offense (Rule
132, Sec. 11, as amended).
(a) Contradictory Evidence
Evidence that the witness' testimony is
wrong or untrue. The purpose is not just to
show an inconsistency but to prove outright
that the witness is mistaken or lying. Thus if
the witness testified that defendant's car
entered the intersection when the stoplight
was green in his favor but a video recording
showed otherwise, the video recording is
contradictory evidence. Predicate need not
be laid. (Riguera, Primer-Reviewer on
Remedial Law, 2022 Ed., p. 966)
(b) Reputation Evidence
Evidence that the witness' general
reputation for truth, honesty, or integrity is
bad. Note however that a party who is
allowed to impeach his own witness cannot
do so by evidence of the witness' bad
character. (ibid.; Sec. 13 Rule 132).
(c) Prior Inconsistent Statements
Evidence that the witness has made at other
times statements inconsistent with his
present testimony (ibid.)
General A witness may be
Rule impeached by evidence
contrary to his testimony
or by involving him in
material or serious
contradiction.
Exceptions (a) Where contradictions
are natural
concomitants to
human limitations;
(b) Where contradiction is
overcome by the
probable nature of the
witness‘ story;
(c) Contradiction of aged
and ignorant
witnesses;
(d) Contradiction in details
by confusion,
excitement, and fright;
(e) Where discrepancies
refer to minor details;
and
(f) Where contradictions
are satisfactorily
explained
(ANNOTATION: Impeachment of Witness,
53 SCRA 309, October 23, 1973).
A witness cannot be impeached by evidence
of contradictory or prior inconsistent
statements until the proper foundation or
predicate has been laid by the party against
whom said witness was called (People of the
Philippines vs. De Guzman, G.R. No. 117217,
December 2, 1996).
Laying the predicate means that it is the duty
of a party trying to impugn the testimony of
a witness by means of prior or subsequent
inconsistent statements, whether oral or in
writing, to give the witness a chance to
reconcile his conflicting declaration (People
of the Philippines vs. Relucio,G.R. Nos.
132484-85, November 15, 2002).
The witness needs to be cross-examined
upon the point of prior contradictory
statements. Unless a ground is thus laid
upon cross- examination, evidence of
contradictory statements are not admissible
to impeach a witness (People vs. Badilla,G.R.
No. L-23792, February 17, 1926).
791
The Witness is Impeached by Evidence of Falsus in Uno, Falsus in Omnibus
Inconsistent Statements by: The maxim falsus in uno, falsus in omnibus deals
(1) The statements must be related to the only with the weight of evidence and is not a
witness, with the circumstances of the times positive rule of law; the rule is not an inflexible
and places and the persons present. one of universal application. Modern trend in
(2) The witness must be asked whether he
jurisprudence favors more flexibility when the
made such statements, and if so, he must be
allowed to explain them. testimony of a witness may be partly believed and
(3) If the statements are in writing, they must partly disbelieved depending on the corroborative
be shown to the witness before any question evidence presented at the trial. Thus, where the
is put to him concerning them (Rule 132, challenged testimony is sufficiently corroborated
Sec. 14). in its material points, or where the mistakes arise
from innocent lapses and not from an apparent
The witness must be given a chance to recollect desire to pervert the truth, the rule may be
and to explain the apparent inconsistency relaxed. It is a rule that is neither absolute nor
between his two statements and state the mandatory and binding upon the court, which
circumstances under which they were made. This may accept or reject portions of the witness
Court held in People vs. Escosura that the testimony based on its inherent credibility or on
statements of a witness prior to her present the corroborative evidence in the case (People vs.
testimony cannot serve as basis for impeaching Lucena, G.R. No. 137281, April 3, 2001).
her credibility unless her attention was directed
to the inconsistencies or discrepancies and she Laying the predicate
was given an opportunity to explain said The laying of the predicate is done as follows:
inconsistencies (People of the Philippines vs. • If the statement is in writing, it must first be
Castellano, G.R. No. 139412, 400 SCRA 401, April shown to the witness before any question is
2, 2003). asked of him concerning the statement.
• The statement must be related to him, with
the circumstances of the time and place and
the persons present
If witness admits If witness denies the
• He must be asked whether he made such
the making of making of
statement
contradictory contradictory
• If so, he must be asked to explain the
statements statements
inconsistency
The accused has ● The accused has the
the benefit of the right to prove that the
admission, while witness made such Predicate is not laid
the witness has the statement. If the predicate is not laid, the impeachment is
opportunity to ● If the fiscal should not complete and the witness has not been
explain the refuse, upon due impeached effectively. (People vs. Cortezano,
discrepancy, if he notice, to produce the G.R. No. 140732. January 29, 2002)
can document, secondary
evidence of the
(d) Impeaching a Witness By Evidence of
contents thereof
Conviction of Crime.
would be admissible
(People vs Castillano G.R No. 139412, April 2,
General Rule Exceptions
2003).
The witness may be If the conviction has
impeached if he or been the subject of an

792
 she has been amnesty or
convicted by final annulment of the An unwilling or hostile witness may also be
judgment of: conviction (Rule 132, impeached and cross-examined by the adverse
a. A crime Sec. 12). party, but such cross-examination must only be
punishable by a
on the subject matter of his or her examination-
penalty in excess
of one year; or in-chief (Rule 132, Sec. 13, as amended).
b. A crime involving
moral turpitude, Referral of Witness to Memorandum
regardless of Present Recollection Revived
penalty. A witness may testify from such a writing or
record, though he or she retain no recollection of
The evidence may be shown by the examination
the particular facts, if he or she is able to swear
of the witness, or the record of the judgment.
that the writing or record correctly stated the
(Rule 132, Sec. 11) transaction when made.

Other Modes of Impeaching a Witness:

(a) By involving him during cross-examination
in contradiction;
(b) By showing the impossibility or improbability
of his testimony;
(c) By proving action or conduct of the witness
inconsistent with his testimony; or
(d) By showing bias, interest or hostile feeling
against the adverse party.
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).
Such evidence must be received with caution
(Rule 132, Sec. 16, as amended).

Impeaching a Party’s Own Witness

Requisites:
General Rule Exceptions
(a) The written record or memorandum must
The party When the witness is: have been written by the witness himself or
producing a (a) An Unwilling witness; by someone under his direction;
witness is NOT (b) A Hostile witness; or (b) It must have been written at the time the
allowed to (c) An Adverse party or an fact or event occurred or immediately
impeach his officer, director, or thereafter or at any time when the facts
credibility. managing agent of a were still fresh in his mind;
public or private (c) The record or memorandum must be
corporation or of a produced and may be inspected by the
partnership or adverse party who may cross-examine the
association which is an witness on it, and may read it in evidence.
adverse party
(Rule 132, Sec. 13)
Present Past Recollection
Recollection Recorded
Note: A witness may be considered as unwilling Revived
or hostile only if so declared by the court upon (a) the memory of the (a) The witness fails
adequate showing of his or her: witness is obscure to have her
(a) Adverse interest; but there is still memory refreshed
(b) Unjustified reluctance to testify; or memory. The after being
(c) Having Misled the party into calling him or witness is presented with the
her to the witness stand. presented the writing.

793
 memorandum or (b) It is the writing Wherein a witness positively testifies that a
record with the itself, not the oral document presented as evidence is genuine and
expectation that it testimony, that has been duly executed, or that the document is
will jog his becomes the neither spurious nor counterfeit nor executed by
memory so that evidence.
mistake or under duress. (Otero vs. Tan, G.N. No.
the he can testify (c) Witness must
from his now swear that the 200134, August 15, 2012)
refreshed writing correctly
memory. states the
(b) It is the testimony transaction
of the witness, not b) CLASSES OF DOCUMENTS
the memory aid, For purposes of their presentation in evidence,
that serves as the
documents are either public or private.
evidence.
(c) The witness
simply testifies Public documents are:
that he knows that (a) The written official acts, or records of the
the memorandum sovereign authority, official bodies and
is correctly written tribunals, and public officers, whether of the
by him or under Philippines, or of a foreign country;
his direction; no (b) Documents acknowledged before a notary
need to swear public, except last wills and testaments;
(c) Documents that are considered public
2. AUTHENTICATION AND PROOF OF documents under treaties and conventions
which are in force between the Philippines
DOCUMENTS
and the country of source; and
(d) Public records, kept in the Philippines, of
a) MEANING OF AUTHENTICATION private documents required by law to be
entered therein.
Authentication is the process of establishing that
evidence is what it purports to be, in other words All other writings are private (Rule 132, Sec. 19,
that it is genuine. In the case of private as amended).
documents authentication means proving the due
execution and authenticity of a document which The act of notarization by a notary public
is offered as authentic. (Rule 132, Sec. 20) converts a private document into a public
document, making it admissible in evidence
It the process of proving the due execution and without further proof of its authenticity. By law, a
genuineness of the document. notarial document is entitled to full faith and
credit upon its face. It enjoys the presumption of
It refers to a rule of evidence which requires that regularity and is a prima facie evidence of the
evidence must be sufficient to support a finding facts stated therein – which may only be
that the matter in question is what its proponent overcome by evidence that is clear, convincing
claims. and more than merely preponderant. Without
such evidence, the presumption must be upheld
The preliminary step in showing the admissibility (Heirs of Spouses Angel Liwagon and Francisca
of evidence: Dumalagan vs. Heirs of Spouses Liwagon, G.R.
No. 193117, November 26, 2014).

794
When Authentication NOT Required:
(a) The writing is an ancient document;
(b) The writing is a public document or record;
(c) The writing is a notarial document, except
last wills and testaments;
(d) The authenticity and due execution of the
document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
(e) When such genuineness and due execution
are immaterial to the issue (RIANO, Evidence
[The Bar Lecture Series], 2022 Ed., p. 201-
211).
Private documents, as a rule, must be
authenticated before they may be received in
evidence (Rule 132, Sec. 20). Public documents,
however, may be received in evidence without
the need for authentication (Riguera). Public
documents enjoy the presumption of regularity
and is a prima facie evidence of the facts stated
therein – which may only be overcome by
evidence that is clear, convincing and more than
merely preponderant (Heirs of Spouses Angel
Liwagon and Francisca Dumalagan vs. Heirs of
Spouses Liwagon, G.R. No. 193117, November
26, 2014).
c) AUTHENTICATION OF A PRIVATE
WRITING
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:
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.
Any other private document need only be
identified as that which it is claimed to be (Rule
132, Sec. 20, as amended).
When Evidence of Authenticity of a Private
Writing is NOT Required
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:
(a) The private document is more than thirty
(30) years old;
(b) It is produced from a custody in which it
would naturally be found if genuine; and
(c) It is unblemished by any alterations or
circumstances of suspicion.
Genuineness of Handwriting
The handwriting of a person may be proved by:
(1) The person whose signature is disputed;
(2) Any witness has seen the person write; or
(3) 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).
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 w’ite' and has thus acquired
knowledge of the handwriting of such person
(Dela Rama vs. Papa, G.R. No. 142309, January
795
30, 2009).
The opinion 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.
This principle holds true especially when the
question involved is mere handwriting similarity
or dissimilarity, which can be determined by a
visual comparison of specimens of the questioned
signatures with those of the currently existing
ones. 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. (Heirs of Donton
v. Stier, G.R. No. 216491, August 23, 2017)
d. 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 facie evidence of the facts
therein stated. All other public documents are
evidence, even against a third person, of the fact
which gave rise to their execution and of the date
of the latter(Rule 130, Sec. 23).
There are generally three reasons for the
necessity of the presentation of public
documents.
(1) Public documents are prima facie evidence
of the facts stated.
Documents consisting of entries in public
records made in the performance of a duty
by a public officer are prima facie evidence
of the facts therein stated. All other public
documents are evidence, even against a
third person, of the fact which gave rise to
their execution and of the date of the latter.
(2) The presentation of a public document
dispenses with the need to prove a
document's due execution and authenticity
(3) the law may require that certain transactions
appear in public instruments, such as
Articles 1358 and 1625 of the Civil Code.
(Teoco v. Metropolitan Bank and Trust Co.,
G.R. No. 162333, December 23, 2008)
Proof of Official Record
(a) Public documents referred to in Sec.
19(a), Rule 132
i. Domestic records:
• By an official publication thereof; or
• By a copy attested by the officer
having the legal custody of the
record, or by his or her deputy, and
accompanied, if the record is not
kept in the Philippines, with a
certificate that such officer has the
custody. (Rule 132, Sec. 24,
paragraph 1)
ii. Foreign records kept in a foreign
country which is a contracting party to
a treaty or convention to which the
Philippines is also a party, including
public documents referred to in Sec.
19(c), Rule 132:
• By an official publication thereof; or
• 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 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)
The certificate shall not be required when a treaty
or convention between a foreign country and the
Philippines has abolished the requirement, or has
796
exempted the document itself from this formality
(Rule 132, Sec. 24, paragraph 4). (n)
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
authenticated by the seal of his or her office (Rule
132, Sec. 24, paragraph 3).
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.
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).
Doctrine of Irremovability of Public Record
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).
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).
Public Record of a Private Document
An authorized public record of a private document
may be proved by
(1) the original record, or
(2) by a copy thereof,
(3) attested by the legal custodian of the record,
with an appropriate certificate that such
officer has the custody (Rule 132, Sec. 27).
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:
(a) There has been a diligent search for the
record; and
(b) 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).
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).
797
 alteration.
Proof of Notarial Documents
He or she may show that:
Every instrument duly acknowledged or proved (a) The alteration was made by another Without
and certified as provided by law, may be his or her concurrence;
presented in evidence without further proof, the (b) It was made with the Consent of the parties
affected by it;
certificate of acknowledgment being prima facie
(c) It was otherwise properly or Innocently
evidence of the execution of the instrument or made; or
document involved (Rule 132, Sec. 30). (d) The alteration did Not change the meaning or
language of the instrument.
Not all types of public documents are deemed
prima facie evidence of the facts therein stated. If he or she fails to do that, the document shall
“Public records made in the performance of a not be admissible in evidence (Rule 132, Sec. 31).
duty by a public officer” include those specified
as public documents under Section 19(a), Rule
132 of the Rules of Court and the Documentary Evidence in an Unofficial
acknowledgement, affirmation or oath, or jurat Language
portion of public documents under Section 19(d).
Hence, under Section 23, notarized documents General Rule Exception
are merely proof of the fact which gave rise to Documents written in When accompanied
their execution, and of the date of the latter, but an unofficial language with a translation into
shall not be admitted English or Filipino
is not prima facie evidence of the facts therein
as evidence
stated. Additionally, under Section 30 of the same
Rule, the acknowledgement in notarized
Note: To avoid interruption of proceedings,
documents is prima facie evidence of the
parties or their attorneys are directed to have
execution of the instrument or document
such translation prepared before trial (Rule 132,
involved(Republic vs. Gimenez, G.R. No. 174673,
Sec. 33).
January 11, 2016).
3. OFFER AND OBJECTION
Seal refers to a device for affixing a mark, image
or impression on all papers officially signed by the
a) WHEN TO MAKE AN OFFER
notary public (A.M. No. 02-8-13-SC, Sec. 13).
General Rule: The court shall consider no
There shall be no difference between sealed and evidence which has not been formally offered.
unsealed private documents insofar as their The purpose for which the evidence is offered
admissibility as evidence is concerned(Rule 132, must be specified (Rule 132, Sec. 34).
Sec. 32).
Exception:
Alterations in a Document (1) Marked exhibits not formally offered may be
admitted provided it complies with the
The party producing a document as genuine following requisites:
which has been altered and appears to have been (a) Must be duly identified by testimony
altered after its execution, in a part material to duly recorded; and
(b) Must have been incorporated in the
the question in dispute, must account for the

798
 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;
(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
(a) To give the adverse party the opportunity to
interpose the proper objection;
(b) To notify the party of possible objection, and
for the offeror to make necessary correction
at the trial level to meet the objection;
(c) To allow the trial judge to rule properly;
(d) To lay basis for appeal so that the appellate
court can decide intelligently
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 the
documents not previously scrutinized by the court
below (Candido vs. CA, G.R No. 107493, February
1, 1996).
How and When to Make Offer
How When
Testimonial Evidence
All evidences must be Made at the time the
offered orally. witness is called to
testify.
Documentary and Object Evidence
All evidences must be Made after the
offered orally. presentation of a
p’rty'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).
The mere fact that a particular document is
799
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 consider it
(Ramos vs. Dizon, G.R No. 137247, August 6,
2006).
There is also no need for proof of execution and
authenticity with respect to documents the
genuiness and due execution of which are
admitted by the adverse party. These admissions
may be found in the pleadings of the parties or
in the case of an actionable document which
may arise from the failure of the adverse party
to specifically deny under oath the genuineness
and due execution of the document in his
pleading. (Rodriguez v. Your Own Home
Development Corp. , G.R. No. 199451, August 15,
2018)
b) WHEN TO MAKE AN OBJECTION
When Objection Must be Made
(a) Objection must be made as soon as the
witness begins to testify (Rule 132, Sec. 36,
as amended).
(b) Objection must be made as soon as the
grounds therefor become reasonably
apparent (Rule 132, Sec. 36, as amended).
(c) When the document or object evidence is
offered in evidence.
(d) Objection must be made as soon as the
party presenting the judicial affidavit of his
witness in place of direct testimony shall
state the purpose of such testimony at the
start of the presentation of the witness. The
adverse party may move to disqualify the
witness or to strike out his affidavit or any of
the answers found in it on ground of
inadmissibility (A.M. No. 12-8-8-SC, Sec. 6).
The grounds for the objections must be specified
(Rule 132, Sec. 36, as amended).
Note: The revised rule no longer sanctions offer
of evidence in writing. All evidence must now be
offered orally (Rule 132, Sec. 35, as amended)
Consequently, the manner of objecting to the
evidence offered in writing is no longer available
in the Rule 132 Sec. 36, as amended.
Waiver of Objection
It is elementary that an objection shall be made
at the time when an alleged inadmissible
document is offered in evidence. Otherwise, the
objection shall be treated as waived, since the
right to object is merely a privilege which the
party may waive. (Spouses Decaleng v. Philippine
Episcopal Church, G.R. No. 171209 & UDK-13672,
June 27, 2012)
As explained in Abrenica vs. Gonda, et al., it has
been repeatedly laid down as a rule of evidence
that a protest or objection against the admission
of any evidence must be made at the proper time,
otherwise it will be deemed to have been waived.
The proper time is when from the question
addressed to the witness, or from the answer
thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be
inferred (ibid).
Note: Failure without just cause of a party and
counsel to appear during pre-trial, despite notice,
is waiver of any objections to the faithfulness of
the reproductions marked, or their genuineness
and due execution (Rule 18, Sec. 4(h), Rules of
Court, as amended)
Evidence Sought to be Introduced
(a) Testimonial evidence which was not offered
at the time the witness was not called to
testify
(b) Testimonial evidence where the question
propounded in the course of the oral
800
 examination in objectionable When it becomes reasonably apparent in the
(c) Documentary and object evidence course of the examination of a witness that the
(d) Judicial Affidavit Rule questions being propounded are of the same
class as those to which objection has been made,
Kinds of Objections
whether such objection was sustained or
Specific is one which employs a specific overruled, it shall not be necessary to repeat the
ground therefor. Example:
objection, it being sufficient for the adverse party
Hearsay
General uses broad or sweeping to record his or her continuing objection to such
grounds such as ―irrelevant class of questions (Rule 132, Sec. 37).
and incompetent‖. Note:
There is no provision in the Ruling of the Court After Objection
Rules of Evidence expressly
prohibiting general objections.
General Rule Exception
It is submitted that they are
The ruling of the court When the court
not prohibited where the
must be given desires to take a
evidence is orally offered. In
immediately after the reasonable time to
such a case if the objection is
objection is made. inform itself on the
overruled, the objector must
question presented.
follow up with specific
objection. Otherwise, he
cannot assign any error to the The ruling shall always be made during trial, and
court‘s ruling. at such time as will give the party against whom
Formal objection is one directed it is made an opportunity to meet the situation
against the alleged defect in presented by the ruling (Rule 132, Sec. 38).
the formulation of the
question. Examples: Overruled Objections vs. Sustained
ambiguous questions;
Objections
misleading; answer not
responsive and to have it
stricken-off; question has no When the court “overrules” an objection
basis; incompetent; irrelevant.
Substantive is one made and directed It refuses to recognize as sufficient an objection
against the very nature of the made in the course of a trial, as to the
evidence, i.e., it is admissible
introduction of particular evidence (Black‘s Law
either because it is irrelevant
Dictionary, 2nd ed.). It is the refusal by a judge
or incompetent or both.
Examples: parol; not the best to sustain an objection set forth by an attorney
evidence; hearsay; privileged during a trial, such as an objection to a particular
communication; not question posed to a witness (West's Encyclopedia
authenticated; opinion; res of American Law, 2nd ed.).
inter alios acta.
(RIANO, Evidence [The Bar Lecture Series], 2022 When the court “sustains” an objection
Ed., p. 388)
It agrees with the objection and disallows the
Repetition of an Objection
question, testimony, or evidence.
Note: This rule is commonly known as the ―Rule
on Continuing Objections
Specifying the Reason for Sustaining an

801
Objection
General Rule Exception
The reason for If the objection is based on
sustaining or two or more grounds, a
overruling an ruling sustaining the
objection need objection on one or some of
not be stated 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.
Striking Out of An Answer
Requisites:
(1) In the course of the testimony:
(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, Evidence
[The Bar Lecture Series], 2022 Ed., p. 390)
Matters stricken off are still part of the records. It
only means that they would NOT be considered
for resolution.
c. TENDER OF EXCLUDED EVIDENCE
Also 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 p’rty'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 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, Evidence [The Bar Lecture Series],
2022 Ed., p. 399)
Tendering of excluded evidence; 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
802
 testimony. (Tan, Evidence, A
Compendium for the Bar, 2019 Ed., p.
728)
Note: If an adverse judgment is eventually
rendered 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).
I. JUDICIAL AFFIDAVIT RULE (A.M. No. 12-
8-8-SC)
Purpose
The most basic reason for the adoption of the
Rule is to decongest the courts of cases and to
reduce delays in the disposition of cases. The
Rule is designed to expedite court proceedings
and primarily affects the manner by which
evidence is presented in court particularly with
regard to the taking of the testimony of a witness.
The Rule is not devised to supplant or amend
existing procedural rules but to supplement and
augment them (Lara's Gift and Decors, Inc. vs.
PNB General Insurers Co., Inc., G.R. Nos.
230429-30, January 24, 2018)
The judicial affidavit shall take the place of the
direct testimonies of witnesses (Sec. 2 [a][1],
Judicial Affidavit Rule; cited in Lagon vs. Velasco,
G.R. No. 208424, February 14, 2018)
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)].
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 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:
803
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).
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.
Contents
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)].
804
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).
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).
Note: 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).
Application in Criminal Cases
The Judicial Affidavit Rule shall apply to The
waiver would mean that a party who failed to
submit the judicial affidavit of a particular witness
would have no direct testimony for that witness
and the documentary or object evidenceall
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)].
Effects of Non-Compliance
A judicial affidavit which does not conform to the
content and attestation requirements of Sec. 3
and 4 of the Judicial Affidavit Rule shall not be
admitted by the court in evidence (Sec. 10[c],
ibid.).
General A party who fails to submit the
Rule 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 submission shall be
allowed only once
(2) The delay is for valid
reasons;
805
 (3) The delay would not unduly J. WEIGHT AND SUFFICIENCY OF EVIDENCE
prejudice the opposing (RULE 133)
party; and
(4) The defaulting party pays a Weight of Evidence is the probative value or
fine of not less than Php.
credit that the court gives to particular evidence
1,000 nor more than Php.
5,000, at the discretion of admitted to prove a fact in issue.
the Court
(Sec. 10[a]) Quantum of Evidence
Civil Cases Preponderance of
The court shall not consider the affidavit of any evidence |||
witness who fails to appear at the scheduled (Atienza v. Golden Ram
hearing of the case as required (Sec. 10[b]). Engineering Supplies &
Equipment Corp., G.R. No.
Counsel who fails to appear without valid cause 205405, June 28, 2021, J.
despite notice shall be deemed to have waived Hernando)
his client's right to confront by cross-examination Criminal Cases
the witnesses there present (Sec. 10[b]). To sustain Evidence of guilt
conviction beyond reasonable
The court shall not admit as evidence judicial doubt (People v. Enojo,
affidavits that do not conform to the content G.R. No. 252258, [April 6,
requirements of Section 3 and the attestation 2022, J. Hernando)
requirement of Section 4 (Sec. 10[c]). Preliminary Prima facie Case –
Investigation sufficient to engender a
Note: Every pleading stating a party's claims or well-founded belief that a
defenses shall, in addition to those mandated by crime has been committed
Rule 7, Sec. 2 of the Rules of Court, as amended, and that the accused is
state the following: probably guilty thereof
(a) Names of witnesses who will be presented to (Ante v. University of the
prove a party's claim or defense; Philippines Student
(b) Summary of the witnesses' intended
Disciplinary Tribunal, G.R.
testimonies, provided that the judicial
affidavits of said witnesses shall be attached No. 227911, March 14,
to the pleading and form an integral part 2022, J. Hernando)
thereof. For Issuance of Probable Cause – that
Warrant of there is reasonable ground
Only witnesses whose judicial affidavits are Arrest to believe that the accused
attached to the pleading shall be presented by has committed an offense
the parties during trial. Except if a party presents (People v. Sandiganbayan
meritorious reasons as basis for the admission of (Fifth Division), G.R. No.
additional witnesses, no other witness or affidavit 239878, February 28,
shall be heard or admitted by the court; and 2022, J. Hernando)
Documentary and object evidence in support of Administrative Substantial evidence –
the allegations contained in the pleading (Rule 7, Cases such amount of relevant
Sec. 6, Rules of Court, as amended). evidence which a

806
 reasonable mind might
Proof beyond reasonable doubt
accept as adequate to
- Required to convict an accused
justify a conclusion ||| (Re:
Investigation Report on the - Moral certainty or that degree of proof
which produces conviction in an
Alleged Extortion Activities unprejudiced mind
of Presiding Judge - Does not demand an absolute certainty
Godofredo B. Abul, Jr., and the exclusion of the possibility of error
Branch 4, Regional Trial
Court, Butuan City, Agusan
Del Norte, A.M. No. RTJ-
17-2486 (Resolution),
September 8, 2020, J.
Hernando)
Clear and convincing evidence
Bail in The potential extraditee
Extradition must prove by "clear and - Degree of proof which produces in the
mind of court a firm belief or conviction as
Cases convincing evidence" to the allegation sought to be established
that he is not a flight risk
- Adduced to overcome a prima facie case
and will abide with all the or a disputable presumption
orders and processes of
the extradition court.
(Government of Hongkong
Special Administrative
Region v. Muñoz, G.R. No.
207342, August 16, 2016)

Preponderance of evidence
Hierarchy of Evidentiary Values
- Degree of proof required in civil cases
- Evidence which is of greater weight of
evidence than that which is offered in
opposition of it

Substantial evidence
- Applicable in cases filed before
administrative or quasi-judicial bodies
- Such relevant evidence as a reasonable
mind might accept as adequate to support
a conclusion

807
Note: Evidence, to be worthy of credit, must not
only proceed from a credible source but must also
be credible in itself. It must be natural,
reasonable and probable as to make it easy to
believe (People vs. Peruelo, G.R. No. 50631, June
29, 1981).
(1) PROOF BEYOND REASONABLE DOUBT
Does not mean such a degree of proof as,
excluding possibility of error, produces absolute
certainty. Only moral certainty is required, or that
degree of proof which produces conviction in an
unprejudiced mind (Rule 133, Sec. 2).
Requiring proof beyond reasonable doubt
necessarily means that mere suspicion of the guilt
of the accused, no matter how strong, should not
sway judgment against him. It further means that
the court should duly consider every evidence
favoring him, and that, in the process, the courts
should persistently insist that accusation is not
synonymous with guilt; every circumstance
favoring his innocence should be fully taken into
account" (People vs. Claro, G.R. No. 199894, April
5, 2017).
Denial and Alibi

A conviction in a criminal case must be supported Denial Alibi

by proof beyond reasonable doubt, which means A defense which The evidence offered by
a moral certainty that the accused is guilty; the traverses an allegation one charged with a
burden of proof rests upon the prosecution made in the pleading crime to support the
(People of the Philippines vs. Patentes, G.R. No. of an adverse party or statement that at the
190178, February 12, 2014). in the direct time of its commission,
examination by the he was at a place so
Moral certainty is that degree of certainty that prosecution and puts remote or that the crime
convinces and directs the understanding and the matter so denied in took place under such
satisfies the reason and judgment of those who issue, to be resolved circumstances that he
are bound to act conscientiously upon it. It is upon the trial of the could not possibly have
certainty beyond reasonable doubt. This requires action (ANNOTATION: committed it
that the circumstances, taken together, should be Denial and Alibi, 84 (ANNOTATION: Denial
of a conclusive nature and tendency; leading, on Phil., 945, November and Alibi, 84 Phil., 945,
the whole, to a satisfactory conclusion that the 09, 1949). November 09, 1949).
accused, and no one else, committed the offense A defense of denial For the defense of alibi
charged (People of the Philippines vs. Yatar, G.R. which is unsupported to prosper, accused-
No. 150224, May 19, 2004). and unsubstantiated appellant must prove
by clear and convincing that:
Reasonable doubt does not refer to any doubt evidence becomes 1. He was at some other
or a mere possible doubt because everything in negative and self- place when the crime
human experience is subject to possible doubt. serving, deserving no was committed; and
Rather, it is the state of the case which, after a weight in law, and 2. It was physically
comparison of all the evidence, does not lead the cannot be given impossible for him to be
judge to have in mind a moral certainty of the greater evidentiary at the locus criminis at
truth of the charge. When there is reasonable value over convincing, the time of its
doubt as to the guilt of the accused, there must straightforward and commission (People vs.
be an acquittal" (People vs. Rodriguez, G.R. No. probable testimony on Villanueva, G.R. No.
211721, September 20, 2017)

808
 affirmative matters 211082, December 13,
(People vs. Villanueva, 2017). Declaration of Nullity of Marriage - the Court
G.R. No. 211082, held that in cases for declaration of nullity of
December 13, 2017). marriage, "the plaintiff-spouse must prove his or
her case with clear and convincing evidence. This
Motive is a quantum of proof that requires more than
General Rule Exception preponderant evidence but less than proof
The prosecution need Motive becomes beyond reasonable doubt." (Tan-Andal vs. Andal,
not prove motive on important when the G.R. No. 196359, May 11, 2021)
the part of the accused evidence on the
when the latter has commission of the Self-defense as a justifying circumstance -
been positively crime is purely
In criminal cases, the accused bears the burden
identified as the author circumstantial or
of the crime. Motive inconclusive to prove by clear, satisfactory and convincing
would not bar (Crisostomo vs. evidence the justifying circumstance that would
conviction of the Sandiganbayan, G.R. avoid his criminal liability (People vs. Fontanilla,
accused as long as the No. 152398, April 14, 664 SCRA 150, 158, January 25, 2012).
crime itself and the 2005).
identity of the Bail in extradition cases - In his Separate
perpetrator had been In a criminal case, the
Opinion in Purganan, then Associate Justice, now
indubitably established prosecution must prove
(Gorong vs. People, two things: Chief Justice Reynato S. Puno, proposed that a
G.R. No. 148971, (1) the fact of the new standard which he termed "clear and
November 29, 2006). crime; and convincing evidence" should be used in
(2) the fact that the granting bail in extradition cases. According
accused is the to him, this standard should be lower than proof
perpetrator of the
beyond reasonable doubt but higher than
crime (People vs.
Dela Peña, G.R. preponderance of evidence (Government of
No. 183567, Hongkong Special Administrative Region v.
January 19, 2009) Muñoz, G.R. No. 207342, August 16, 2016)

(2) CLEAR AND CONVINCING EVIDENCE
Is that evidence which produces in the mind of
the trier of fact a firm belief or conviction as to
allegations sought to be established (Dela Paz vs.
Republic, G.R. No. 195726, November 20, 2017).
Clear and convincing proof is more than mere
preponderance, but not to the extent of such
certainty as is required beyond reasonable doubt
as in criminal cases (Pangasinan vs. Disonglo-
Almazora, G.R. No. 200558, July 01, 2015).
Instances where clear and convincing
evidence is applied
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 (Ibid.).
Paternity or filiation - 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).

809

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 place where the crimes were committed
(People of the Philippines vs. Flores, G.R. No.
71980, March 18, 1991).
Frame-up - 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).
(3) PREPONDERANCE OF EVIDENCE
It must be reiterated that in civil cases,
preponderance of evidence is the quantum of
proof observed, meaning that the party who has
presented pieces of evidencethat have more
evidentiary weight shall prevail. (Heirs of Casiño,
Sr. v. Development Bank of the Philippines,
Malaybalay Branch, Bukidnon, G.R. Nos. 204052-
53, March 11, 2020, J. Hernando)
It is defined as the evidence more convincing to
the court as worthier of belief than that offered
as opposition thereto (Philippine Commercial
International Bank v. Laguna Navigation, Inc.,
G.R. No. 195236, February 8, 2021, J.
Hernando)
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 of the credible evidence."
Preponderance of evidence is a phrase which, in
the last analysis, means probability of the truth.
It is evidence which is more convincing to the
court as worthy of belief than that which is
offered in opposition thereto (Philippine
Commercial International Bank vs. Balmaceda,
G.R. No. 158143, September 21, 2011 quoting
Encinas vs. National Bookstore, Inc., 485 Phil.
683, 2004).
In determining where the preponderance or
superior weight of evidence on the issues
involved lies, the court may consider the
following:
(1) Facts and circumstances of the case;
(2) Witnesses’ manner of testifying;
(3) Witnesses’ intelligence;
(4) Witnesses’ means and opportunity of
knowing the facts to which they are
testifying;
(5) Nature of the facts to which they testify;
(6) Probability or improbability of their
testimony;
(7) Witnesses’ interest or want of interest; and
(8) Witnesses’ personal credibility so far as the
same may legitimately appear upon the trial.
Note: The court may also consider the number
of witnesses, though the preponderance is not
necessarily with the greater number (Rule 133,
Sec. 1, as amended).
810
(4) SUBSTANTIAL EVIDENCE
Such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion. (Rule 133, Sec. 6, as amended)
Substantial evidence means
"that amount of relevant evidence which a reaso
nable mind might accept as adequate to justify a
conclusion. (Partsch v. Vitorillo, A.C. No. 10897,
January 4, 2022, J. Hernando)
Substantial evidence refers to such relevant
evidence which a reasonable mind might accept
as adequate to support a conclusion (Fajardo vs.
Corral, G.R. No. 212641, July 5, 2017).
It is more than a mere imputation of wrongdoing
or violation that would warrant a finding of
liability against the person charged (Mamba vs.
Bueno, G.R. No. 191416, February 7, 2017).
To satisfy the substantial evidence requirement
for administrative cases, hearsay evidence
should necessarily be supplemented and
corroborated by other evidence that are not
hearsay (Gumaton vs. Amador, A.C. No. 8962,
July 09, 2018).
Instances where Substantial Evidence
Applies
Administrative or quasi-judicial
proceedings - In administrative cases, the
quantum of evidence required is that of
substantial evidence; It does not require evidence
that is overwhelming or even preponderant
(Astorga and Repol Law Offices vs. Villanueva,
A.M. No. P-09-2669, February 24, 2015)
If this is the standard for criminal cases wherein
the quantum of proof is beyond reasonable
doubt, then a lower standard for administrative
proceedings such as the case at bar should be
followed, even if the quantum of proof therein is
substantial evidence. (Re: Investigation Report
on the Alleged Extortion Activities of Presiding
Judge Godofredo B. Abul, Jr., Branch 4, Regional
Trial Court, Butuan City, Agusan Del Norte, A.M.
No. RTJ-17-2486 (Resolution), September 8,
2020, J. Hernando)
Claims of WCC - the employee has the burden
to present substantial evidence or such relevant
evidence which a reasonable mind might accept
as adequate to justify a conclusion, showing a
reasonable connection between the conditions of
his work and his illness, or that the risk of
contracting the same was increased by his
working conditions (Masangcay vs. Trans-Global
Maritime Agency, Inc., G.R. No. 172800, October
17, 2008)
Agrarian Cases - In agrarian cases, all that is
required is mere substantial evidence (Heirs of
E.B. Roxas, Inc. vs. Tolentino, G.R. No. L-
39807. November 14, 1988).
Disbarment Proceedings - the court once
again stressed that its pronouncement in Reyes
v. Nieva ought to control and quell any further
confusion on the proper evidentiary threshold. It
recognized that the evidentiary threshold of
substantial evidence, as opposed to
preponderance of evidence, is more in keeping
with the primordial purpose of and essential
considerations attending disciplinary cases. (Tan
vs. Alvarico, A.C. No. 10933, November 3, 2020)
Writ of Amparo – In a petition for a writ of
amparo, the parties shall establish their claims by
substantial evidence (Sec. 17, The Rule on the
Writ of Amparo)
Extrajudicial Confession NOT Sufficient
Ground for Conviction
811
General Rule: An extrajudicial confession made
by an accused shall not be sufficient ground for
conviction.
Exception: When corroborated by evidence of
corpus delicti (Rule 133, Sec. 3).
(5) CIRCUMSTANTIAL EVIDENCE
ircumstantial evidence, also known as indirect or
presumptive evidence, refers to proof of
collateral facts and circumstances whence the
existence of the main fact may be inferred
according to reason and common experience.
(People v. Manansala y Alfaro, G.R. No. 233104,
September 2, 2020, J. Hernando)
Circumstantial evidence is sufficient to sustain
conviction if:
(a) there is more than one circumstance;
(b) the facts from which the inferences are
derived are proven;
(c) the combination of all circumstances is such
as to produce a conviction beyond
reasonable doubt. (ibid)
A judgment of conviction based on
circumstantial evidence can be sustained when
the circumstances proved form an unbroken
chain that results in a fair and reasonable
conclusion pointing to the accused, to the
exclusion of all others, as the perpetrator. (ibid)
Note: Inferences cannot be based on other
inferences (Rule 133, Sec. 4, as amended).
Direct Evidence Circumstantial
Evidence
It proves a challenged It indirectly proves a
fact without drawing fact in issue, such that
any inference. the 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. People, G.R. No. 204544,
July 3, 2017).
Weight to be Given Opinion of Expert
Witness (Rule 133, Sec. 5, as amended)(n).
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.
This new provision gives guidance to judges in
determining weight to be given to expert opinion.
It hews to the basic sense expressed by the US
Supreme Court in Daubert vs. Merrel
Pharmaceuticals, Inc. that the judge must have
considerable leeway in the matter and that the
listing of particular factors was meant to be
“helpful” rather than “definitive.” (SOURCE:
812
Explanatory Notes, 2019 Proposed Amendments
to the Revised Rules on Evidence)
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).
K. RULES ON ELECTRONIC EVIDENCE
(A.M. No. 01-7-01-SC)
Scope and Coverage
Unless otherwise provided herein, these Rules
shall apply whenever an electronic data message,
as defined in Rule 2 hereof, is offered or used in
evidence. (Sec. 1, REE)
These Rules shall apply to the criminal and civil
actions and proceeding, as well as quasi-judicial
and administrative cases. (A.M. No. 01-7-01-SC,
Re: Expansion of the Coverage of the Rules on
Electronic Evidence, September 24, 2002; Cited
in People vs. Enojas G.R. No. 204894, March 10,
2014)
In all matters not specifically covered by these
Rules, the Rules of Court and pertinent provisions
of statutes containing rules on evidence shall
apply.
Admissibility
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).
Rule on admissibility
An electronic document is admissible in evidence
if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws
and is authenticated in the manner prescribed by
the Rules on Electronic Evidence (Rule 3, Sec. 2).
For the Court to consider an electronic document
as evidence, it must pass the test of admissibility.
According to Section 2, Rule 3 of the Rules
on Electronic Evidence, “an electronic document
is admissible in evidence if it complies with the
rules on admissibility prescribed by the Rules of
Court and related laws and is authenticated in the
manner prescribed by these Rules." (RCBC
Bankard Services Corp. v. Oracion, Jr., G.R. No.
223274, June 19, 2019)
Meaning Of Electronic Document;
Electronic Data Massage
Electronic document refers to information or
the representation of information, data, figures,
symbols or other modes of written expression,
described or however represented, by which a
right is established or an obligation extinguished,
or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It
includes digitally signed documents and any
print-out or output, readable by sight or other
813
means, which accurately reflects the electronic
data message or electronic document [Rule 2,
Sec. 1(h)].

Electronic Data Message refers to information

generated, sent, received or stored by electronic,
optical or similar means [Rule 2, Sec. 1(g)].

The rule does not absolutely require that the

electronic document be initially generated or
produces electronically. A contract, for instance,
prepared through the traditional written way may
be converted to an electronic document if
transmitted or received or later recorded
electronically (Riano, Evidence [The Bar Lecture
Series], 2022 Ed., p. 156)

The confidential character of a privileged

communication is not lost solely on the ground
that it is in the form of an electronic document
(Rule 3, Sec. 3).

While "data message" has reference to

information electronically sent, stored or
transmitted, it does not necessarily mean that it
will give rise to a right or extinguish an obligation,
unlike an electronic document (MCC Industrial
Sales Corporation vs. Ssangyong Corporation,
G.R. No. 170633, October 17, 2007).

814
Evidentiary Weight of Electronic Documents; Method of Proof
Under E-Commerce Act Rules on Electronic Evidence
Evidential weight In assessing the Factors in determining evidential weight of electronic document
evidential weight of an electronic In assessing the evidentiary weight of an electronic document,
data message or electronic the following factors may be considered:
document (a) The reliability of the manner or method in which it was
(a) Reliability of the manner in generated, stored or communicated, including but not
which it was generated, stored limited to input and output procedures, controls, tests and
or communicated checks for accuracy and reliability of the electronic data
(b) Reliability of the manner in message or document, in the light of all the circumstances
which its originator was as well as any relevant agreement;
identified, and other relevant (b) The reliability of the manner in which its originator was
factor shall be given due identified;
regard. (Section 12, RA 8792) (c) The integrity of the information and communication
system in which it is recorded or stored, including but not
limited to the hardware and computer programs or
software used as well as programming errors;
(d) The familiarity of the witness or the person who made the
entry with the communication and information system; e.
The nature and quality of the information which went into
the communication and information system upon which
the electronic data message or electronic document was
based; or
(e) The nature and quality of the information which went into
the communication and information system upon which
the electronic data message or electronic document was
based; or
(f) Other factors which the court may consider as affecting
the accuracy or integrity of the electronic document or
electronic data message. (Sec. 1, Rule 7, Rules on
Electronic Evidence)

In any dispute involving the integrity of the information and

communication system in which an electronic document or
electronic data message is recorded or stored, the court may
consider, among others, the following factors:
(a) Whether the information and communication system or
other similar device was operated in a manner that did not
affect the integrity of the electronic document, and there
are no other reasonable grounds to doubt the integrity of
the information and communication system;
(b) Whether the electronic document was recorded or stored
by a party to the proceedings with interest adverse to that
of the party using it; or
(c) Whether the electronic document was recorded or stored
in the usual and ordinary course of business by a person
who is not a party to the proceedings and who did not act
under the control of the party using it. (Sec. 2, Rule 7,
Rules on Electronic Evidence)

815
Method of Proof
Electronic Electronic
Affidavit of Evidence Documents Signatures
Admissibility
All matters relating to the admissibility and An electronic An electronic
document is document is
evidentiary weight of an electronic document may
admissible in evidence admissible in
be established by an affidavit stating facts of if it complies with the evidence if it
direct personal knowledge of the affiant or based rules on admissibility complies with the
on authentic records. The affidavit must prescribed by the rules on admissibility
affirmatively show the competence of the affiant Rules of Court and prescribed by the
to testify on the matters contained therein (Rule related laws and is Rules of Court and
9, Sec. 1). authenticated in the related laws and is
manner prescribed by authenticated in the
the Rules on Electronic manner prescribed
Cross-Examination of Deponent Evidence. (Sec. 2, Rule by the Rules on
3, Rules on Electronic Electronic Evidence.
The affiant shall be made to affirm the contents Evidence) (Sec. 2, Rule 3, Rules
of the affidavit in open court and may be cross- on Electronic
examined as a matter of right by the adverse Evidence)
party (Rule 9, Sec. 2). Manner of authentication
Before any private An electronic
electronic document signature may be
Authentication of Electronic Documents offered as authentic is authenticated in any
and Electronic Signatures received in evidence, of the following
its authenticity must manner:
Rule 5 of the Rules on Electronic Evidence lays be proved by any of (1) By evidence that
down the authentication process the following means: a method or
of electronic documents. Section 1 of Rule 5 (1) by evidence that it process was
had been digitally utilized to
imposes upon the party seeking to introduce
signed by the establish a digital
an electronic document in any legal proceeding person purported signature and
the burden of proving its authenticity in the to have signed the verify the same;
manner provided therein. Section 2 of Rule 5 sets same; (2) By any other
forth the required proof of authentication: (2) by evidence that means provided
other appropriate by law; or
security (3) By any other
(a) By evidence that it had been digitally signed
procedures or means
by the person purported to have signed the
devices as may be satisfactory to
same;
authorized by the the judge as
(b) By evidence that other appropriate security
Supreme Court or establishing the
procedures or devices as may be authorized
by law for genuineness of
by the Supreme Court or by law for
authentication of the electronic
authentication of electronic documents were
electronic signature. (Sec.
applied to the document; or
documents were 2, Rule 6, Rules
(c) By other evidence showing its integrity and
applied to the on Electronic
reliability to the satisfaction of the judge
document; or Evidence)
(Rule 5, Sec. 2; RCBC Bankard Services Corp.
(3) by other evidence
v. Oracion, Jr., G.R. No. 223274, June 19,
showing its
2019).

816
 Electronic Electronic
Documents Signatures
integrity and
reliability to the
satisfaction of the
judge. (Sec. 2,
Rule 5, Rules on
Electronic
Evidence)
Burden of Proving Authenticity
The person seeking to introduce an electronic
document in any legal proceeding has the burden
of proving its authenticity (Rule 5, Sec. 1).
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
It refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the
identity of a person and attached to or logically
associated with the electronic data message or
electronic document or any methodology or
procedure employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or approving
an electronic data message or electronic
document. [Rule 2, Sec. 1 (j)].
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).
An electronic signature authenticated:
(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:
(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
It 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
817
Upon the authentication of a digital signature, it chemical or inequitable to
shall be presumed that: reproduction, or by admit a copy in
other equivalent lieu of the original
(1) The electronic signature is that of the person techniques which (Rule 4, Sec. 2).
to whom it correlates; accurately reproduces
(2) The electronic signature was affixed by that the original, such
person with the intention of authenticating copies or duplicates
or approving the electronic document to shall be regarded as
the equivalent of the
which it is related or to indicate such
person’s consent to the transaction original.
embodied therein; and
(3) The methods or processes utilized to affix or Facsimile transmissions are not, in this sense,
verify the electronic signature operated “paperless,” but verily are paper-based.
without error or fault (Rule 6, Sec. 3). Furthermore, the terms “electronic data
(4) The information contained in a certificate is message” and “electronic document,” as defined
correct; under the Electronic Commerce Act of 2000, do
(5) The digital signature was created during the
not include a facsimile transmission. Accordingly,
operational period of a certificate;
(6) No cause exists to render a certificate invalid a facsimile transmission cannot be
or revocable; considered as electronic evidence. It is not
(7) The message associated with a digital the functional equivalent of an original under the
signature has not been altered from the time Best Evidence Rule and is not admissible as
it was signed; and electronic evidence. Since a facsimile
(8) A certificate had been issued by the
transmission is not an “electronic data message”
certification authority indicated therein (Rule
6, Sec. 4). or an “electronic document,” and cannot be
An electronic document shall be regarded as the considered as electronic evidence by the Court,
equivalent of an original document under the Best with greater reason is a photocopy of such a fax
Evidence Rule if it is a printout or output readable transmission not electronic evidence (MCC
by sight or other means, shown to reflect the data Industrial Sales Corporation vs. Ssangyong
accurately (Rule 4, Sec. 1). Corporation, G.R. No. 170633, October 17, 2007).

Copies as Equivalent to Originals

Audio, Video and Similar Evidence
General Rule Exceptions Audio, photographic and video evidence of
When a document is Copies or duplicates events, acts or transactions shall be admissible
in two or more copies shall not be provided it shall be shown, presented or
executed at or about admissible to the displayed to the court and shall be identified,
the same time with same extent as the explained or authenticated by the person who
identical contents, or original if: made the recording or by some other person
is a counterpart (a) A Genuine
competent to testify on the accuracy thereof
produced by the same question is raised
impression as the as to the (Sec. 1, Rule 11).
original, or from the authenticity of the
same matrix, or by original; or The rule in this jurisdiction is that photographs,
mechanical or (b) In the when presented in evidence, must be identified
electronic re- circumstances it by the photographer as to its production and
recording, or by would be Unjust
testified as to the circumstances under which

818
they were produced. The value of this kind of (c) In the absence or unavailability of such
evidence lies in its being a correct representation witnesses, Other competent evidence may be
or reproduction of the original, and its admitted (Rule 11, Sec. 2).
admissibility is determined by its accuracy in
Ephemeral electronic communications are now
portraying the scene at the time of the crime. The
admissible evidence, subject to certain
photographer, however, is not the only witness
conditions. "Ephemeral electronic
who can identify the pictures he has taken. The
communication" refers to telephone
correctness of the photograph as a faithful
conversations, text messages, chatroom
representation of the object portrayed can be
sessions, streaming audio, streaming video, and
proved prima facie, either by the testimony of the
other electronic forms of communication the
person who made it or by other competent
evidence of which is not recorded or retained. It
witnesses, after which the court can admit it
may be proven by the testimony of a person who
subject to impeachment as to its accuracy.
was a party to the communications or has
Photographs, therefore, can be identified by the
personal knowledge thereof. (Bartolome v.
photographer or by any other competent witness
Maranan, A.M. No. P-11-2979, November 18,
who can testify to its exactness and accuracy
2014)
(Sison vs. People of the Philippines, G.R. Nos.
108280-83 November 16, 1995).
Text messages have been classified as
ephemeral electronic communication under
The Rules on Electronic Evidence provides that
Section 1(k), Rule 2 of the Rules on Electronic
persons authorized to authenticate the video or
Evidence, and shall be proven by the testimony
CCTV recording is not limited solely to the person
of a person who was a party to the same or has
who made the recording but also by another
personal knowledge thereof (Vidallon-Magtolis
competent witness who can testify to its
vs. Salud, A.M. No. CA-05-20-P, September 09,
accuracy. (People v. Manansala y Alfaro, G.R. No.
2005).
233104, September 2, 2020, J. Hernando)

This rule applies to telephone conversations and

Ephemeral Electronic Communication
other ephemeral electronic communication. In
the absence or unavailability of the required
It refers to telephone conversations, text
witnesses, other competent evidence may be
messages, chatroom sessions, streaming audio,
admitted (Sec. 2, Rule 11, Rules on Electronic
streaming video, and other electronic forms of
Evidence).
communication the evidence of which is not
recorded or retained [Rule 2, Sec 1(k)].
Case illustration:
Ephemeral electronic communication shall be
The transcript of the alleged exchange of text
proven by:
messages between the complainant and the
respondent cannot be admitted in evidence since
(a) The testimony of a person who was a Party
to the same; the same was not authenticated in accordance
(b) The testimony of a person who has Personal with A.M. No. 01-7-01-SC, pertaining to the Rules
knowledge thereof; or on Electronic Evidence. Without proper
authentication, the text messages presented by

819
the complainant have no evidentiary value.
(Francia v. Abdon, A.C. No. 10031, July 23, 2014)
As to the admissibility of the text messages, the
RTC admitted them in conformity with the Court's
earlier Resolution applying the Rules on
Electronic Evidence to criminal actions. Text
messages are to be proved by the testimony of a
person who was a party to the same or has
personal knowledge of them. Here, PO3 Cambi,
posing as the accused Enojas, exchanged text
messages with the other accused in order to
identify and entrap them. As the recipient of
those messages sent from and to the mobile
phone in his possession, PO3 Cambi had personal
knowledge of such messages and was competent
to testify on them. (People v. Enojas y Hingpit,
G.R. No. 204894, March 10, 2014)
LEGAL AND JUDICIAL ETHICS
I. LEGAL ETHICS
Legal Ethics refer to usages and customs
among members of the legal profession, involving
their moral and professional duties toward one
another, toward clients, and toward the courts. It
is that branch of moral science which treats of the
duties which a member of the legal profession
owes to the public, to the court, to his
professional brethren, and to his client. (Black’s
Law Dictionary, Revised 4th edition, Page 1039)
A. PRACTICE OF LAW
1. Basic Concepts
a. Definition of the Practice of Law
In Cayetano vs. Monsod, the Court defined the
practice of law as any activity, in and out of court,
that requires the application of the law, legal
procedure, knowledge, training, and experience.
Moreover, the Court ruled that to engage in the
practice of law is to perform those acts which are
characteristics of the professional to practice law
is to give notice or render any kind of service,
which device or service requires the use in any
degree of legal knowledge or skill. (Query of Atty.
Karen M. Silverio-Buffe, A.M. No. 08-6-352-RTC,
August 19, 2009)
b) Practice of Law as a Privilege, Not
a Right
It is worth stressing that the practice of law is
not a right but a privilege bestowed by the
State upon those who show that they possess,
and continue to possess, the qualifications
required by law for the conferment of such
privilege. Membership in the bar is a privilege
burdened with conditions. (Alcantara vs. De Vera,
A.C. No. 5859, November 23, 2010)
In re Medado, the dismissal of all the other
criminal charges against the respondent, coupled
with the various certifications of good moral
character in his favor, is sufficient for the Court
to conclude that the respondent possesses the
moral qualifications required of lawyers. Though
it is true that the practice of law is not a right but
a privilege, the Court will not unjustifiably
withhold this privilege from the respondent, who
has clearly shown that he is both intellectually
and morally qualified to join the legal profession.
(De Zuzuarregui vs. De Zuzuarregui, B.M. No.
2796, February 11, 2020)
The right to practice law is not a natural or
constitutional right but a privilege. It is
limited to persons of good moral character with
special qualifications duly ascertained and
certified. The exercise of this privilege
presupposes the possession of integrity, legal
knowledge, educational attainment, and even
public trust since a lawyer is an officer of the
820
court. A bar candidate does not acquire the right
to practice law simply by passing the bar
examinations. The practice of law is a privilege
that can be withheld even from one who has
passed the bar examinations if the person
seeking admission had practiced law without a
license. (Aguirre vs. Rana, B.M. No. 1036, June
10, 2003)
The practice of law is a privilege clothed
with public interest because a lawyer owes
substantial duties not only to his client, but also
to his brethren in the profession, to the courts,
and to the nation, and takes part in one of the
most important functions of the State – the
administration of justice – as an officer of the
court. To enjoy the privileges of practicing law,
lawyers must adhere to the rigid standards of
mental fitness, maintain the highest degree of
morality, and faithfully comply with the rules of
the legal profession. (Floran vs. Ediza, A.C. No.
5325, February 9, 2016)
The practice of law is not a property right,
but a mere privilege, and as such must bow to
the inherent regulatory power of the court to
exact compliance with the lawyer’s
responsibilities. (In the Matter of the IBP
Membership Dues Delinquency of Atty. Marcial A.
Edillon, A.C. No. 1928, August 3, 1978)
c) Law as a Profession, Not a their clients. (Agpalo, Legal and Judicial
Business or Trade
The practice of law is a profession, a form of
public trust, the performance of which is
entrusted to those who are qualified and who
possess good moral character. (Constantino vs.
Aransazo, Jr., A.C. No. 9701, February 10, 2021,
J. Hernando)
The practice of law is not a business. It is a
profession in which the duty to public service, not
money, is the primary consideration. Lawyering is
not primarily meant to be a money-making
venture, and law advocacy is not a capital that
necessarily yields profits. The gaining of a
livelihood should be a secondary consideration.
The duty to public service and to the
administration of justice should be the primary
consideration of lawyers, who must subordinate
their personal interests or what they owe to
themselves. (Bengco vs. Bernardo, A.C. No.
6368, June 13, 2012)
The following elements distinguish the
legal profession from a business:
1. A duty of public service, of which the
emolument is a by-product, and in which one
may attain the highest eminence without
making much money;
2. A relation as an “officer of the court” to the
administration of justice involving thorough
sincerity, integrity, and reliability;
3. A relation to clients in the highest degree of
fiduciary;
4. A relation to colleagues at the bar
characterized by candor, fairness, and
unwillingness to resort to current business
methods of advertising and encroachment
on their practice, or dealing directly with
Ethics, 9th edition, pp. 13-14)
2. Qualifications for Admission to the Bar
(Bar Matter No. 1153)
Qualifications for Admission to the Bar
1. Citizenship
2. At least 21 years of Age
3. Of Good Moral Character
821
4. Resident of the Philippines
5. Evidence of good moral character presented
before the Supreme Court
6. No charges against him, involving moral
turpitude, have been filed or are pending in
any court in the Philippines. (Rule 138, Sec.
2)
7. Completed the course of study prescribed
therein for a bachelor’s degree in an
authorized and recognized university,
requiring for admission thereto
completion of a four-year high school course
(Rule 138, Sec. 6)
8. The following courses must be completed in
law school to be a qualified individual for the
admission to the bar: Civil Law, Commercial
Law, Remedial Law, Criminal Law, Public and
Private International Law, Political Law,
Labor and Social Legislation, Medical
Jurisprudence, Taxation, Legal Ethics and
Clinical Legal Education Program. (AM No.
19-03-24-SC, effective July 25, 2019)
9. Pass the Bar Examinations
10. Take the Lawyer’s Oath
11. Sign the Roll of Attorney’s and receive from
the Clerk of Court of the SC a certificate and
license to practice
A Filipino Citizen who graduated from a
foreign law school shall be admitted to the
bar examination only upon submission to the
Supreme Court certifications showing:
a) completion of all courses leading to the
degree of Bachelor of Laws or its equivalent
degree;
c) completion of all the fourth year subjects in
the Bachelor of Laws academic program in a
law school duly recognized by the Philippine
Government. (Bar Matter No. 1153)
3. Continuing Requirements for
Membership in the Bar
The following are the continuing requirements for
a member in the bar:
the 1. Payment of Professional Tax
2. Membership in the IBP
3. Payment of IBP dues
4. Good and regular standing
5. Compliance with the MCLE
6. Faithful observance of the rules and ethics of
the legal profession
7. Citizenship
Loss of Citizenship
General Rule: The loss of Filipino citizenship
ipso jure terminates the privilege to practice law
in the Philippines. The practice of law is a
privilege denied to foreigners.
Exception: A Filipino lawyer who becomes a
citizen of another country is deemed never to
have lost his Philippine citizenship if he
reacquires it in accordance with RA 9225.
Note: Although he is also deemed never to have
terminated his membership in the Philippine bar,
no automatic right to resume law practice
accrues.
Under RA 9225, before a lawyer who reacquires
Filipino citizenship pursuant to RA 9225 can
resume his law practice, he must first secure from
this Court the authority to do so, conditioned on:

b) recognition or accreditation of the law school

by the proper authority; and

822
a) the updating and payment in full of the
annual membership dues in the IBP;
b) the payment of professional tax;
c) the completion of at least 36 credit hours of
mandatory continuing legal education; this is
especially significant to refresh the
applicant/petitioner’s knowledge of
Philippine laws and update him of legal
developments and
d) the retaking of the lawyer’s oath which
will not only remind him of his duties and
responsibilities as a lawyer and as an officer
of the Court, but also renew his pledge to
maintain allegiance to the Republic of the
Philippines.
Compliance with these conditions will restore his
good standing as a member of the Philippine bar.
(In Re: Dacanay, Bar Matter No. 1678, December
17, 2007)
Non Payment of IBP Dues
Default in the payment of annual dues for six
months shall warrant suspension of membership
in the Integrated Bar, and default in such
payment for one year shall be a ground for the
removal of the name of the delinquent member
from the Roll of Attorneys. (Rule 139-A, Sec. 10)
4. Appearance of Non-lawyers
Only those who are licensed to practice law can
appear and handle cases in court. (Rule 138, Sec.
1)
Exceptions:
a. Law Student practice
b. Non-lawyers in court can appear for a party
in the MTC
c. Non-lawyers can represent parties in
administrative tribunals such as NLRC,
DARAB, and Cadastral Courts
a) Law Student Practice Rule (Rule
138-A, as amended by A.M. No. 19-
03-24-SC)
A law student who has successfully enrolled in a
recognized law school’s clinical legal education
program (CLEP) approved by the Supreme Court,
may appear without compensation in any civil,
criminal, or administrative case before any trial
court, tribunal, board, or officer, to represent
indigent clients accepted by the legal clinic of the
law school. (Rule 138-A, Sec. 1)
Any appearance of the law student shall be under
the direct supervisi on and control of a member
of the Integrated Bar of the Philippines,
accredited by the law school. (Rule 138-A, Sec.
2)
The limited practice of law by students covers the
following:
1. Appearances
2. Drafting and submission of pleadings and
documents before trial and appellate courts
and quasi-judicial and administrative bodies
3. Assistance in mediation and other alternative
modes of dispute resolution
4. Legal counseling and advice
5. And other activities coved by CLEP
Privileged Communication between the attorney
(law student) and the client shall apply to similar
communications made to or received by the
student, acting for the legal clinic. The law
student shall comply with the standards of
professional conduct governing members of the
Bar. Failure of an attorney to provide adequate
supervision of student practice may be a ground
for disciplinary action. (Rule 138-A, Sec. 3)
823
A law student may appear before an inferior court
as an agent or friend of a party without the
supervision of a member of the bar. (Cruz vs.
Mina, G.R. No. 154207, April 27, 2007)
NON-LAWYERS IN COURTS AND/OR
ADMINISTRATIVE TRIBUNALS
b) Non-lawyers in Courts
a. In civil cases before the MTC, a party to the
litigation may conduct his litigation in
person, with the aid of an agent or friend
appointed by him for that purpose. (Rule
138, Sec. 34)
b. In any other court, a party may conduct his
litigation personally. A non-lawyer
conducting his litigation is bound by the
same rules in the conducting of the trial
case. If he gets someone to aid him, that
person must be an authorized member of
the Bar. After judgment, he cannot claim
that he was not properly represented. (Rule
138, Sec. 34)
c. A criminal case before the MTC in a locality
where a duly licensed member of the Bar is
not available. A judge may appoint a non-
lawyer who is a:
1. A resident of the province
2. Of good repute for probity and ability to
aid the accused in his defense (Rule
116, Sec. 7)
d. Under the Cadastral Act, any person claiming
any interest in any part of the lands, whether
named in the notice or not, shall appear
before the Court by himself, or by some
person in his behalf and shall file an answer
on or before the return day or within such
further time as may be allowed by the
Court. (Sec. 9, Act No. 2259)
b.1) Non-lawyers in Administrative
Tribunals
1. Any official or other person appointed or
designated to appear for the Government of
the Philippines in accordance with the law.
(Rule 138, Sec. 33)
2. A non-lawyer may appear in any of the
proceedings before the Labor Arbiter or
Commission only if he/she represents
himself/herself under the following
conditions:
a. As a party to the case;
b. The owner or president of a corporation
which is a party to the case;
c. A duly-accredited member of any legal
aid office recognized by the Integrated
Bar of the Philippines or Department of
Justice;
d. A legitimate labor organization which is
a party to the case; or
e. A member or members of a legitimate
labor organization that is existing within
the employer’s establishment, who are
parties to the case. [Rule III, Sec. 6(b),
2011 NLRC Rules of Procedure]
1. A non-lawyer may represent a party before
the Department of Agrarian Reform
Adjudication Board (DARAB) or any of the
Adjudicators, if:
a. He/she represents himself, herself as a party
to the case;
b. He represents his farmer’s organization or
members, provided that he shall present
proof of authority from the organization or its
members or such authority duly signed by the
CEO, President, Head or Chair of the
organization.
c. He/she is a law student who has successfully
completed his third year of the regular
four0year prescribed law curriculum and is
enrolled in a recognized law school’s CLEP
approved by the Supreme Court; or
824
d. He is a DAR Legal Officer which must have
the authority and be under the direct
supervision and control of the Chief Legal
Division. (Rule VIII, Sec. 44, 2021
Department of Agrarian Reform Adjudication
Board Revised Rules of Procedure)
Limitations on Appearance of Non-lawyers
Before the Courts:
a. He must confine his work to non-adversarial
contentions.
b. His services must not be habitually rendered.
c. He should not charge or collect attorney’s
fee. (Lijauco vs. Terrado, A.C. No. 6317,
August 31, 2006)
c) Proceedings Where Lawyers are
Prohibited to Appear as Counsels
General Rule: Lawyers are prohibited from
appearing on the following:
1. Proceedings before the Katarungang
PamBarangay (Sec. 415, Local Government
Code of 1991).
2. Under the “Indigenous People’s Rights Act of
1997” (Rule IV, Sec. 10[c], Administrative
Circular No. 1 Series of 2003).
3. Under the Rule of Procedure for Small Claims
(A.M. No. 08-8-7-SC, effective October 01,
2008)
Exception: If the attorney is the plaintiff or
defendant, appearing in his/her capacity as a
member of the council of elders, or he/she has an
obligation as the member of the Indigenous
People’s community. (Rule IV, Sec. 10[c],
Administrative Circular No. 1 Series of 2003)
5. Prohibited Practice of Non-Lawyers
and Appearance Without Authority
Generally, only those who are duly admitted as
members of the bar, or admitted as such in
accordance with the provisions of the Rules of
Court, and who are in good or regular standing,
are entitled to practice law (Rule 138, Sec. 1),
except in the following cases:
a. Law Student Practice Rule (Rule 138-A,
Rules of Court)
b. Any official or other person appointed or
designated in accordance with law to appear
for the Government of the Philippines shall
have all the rights of a duly authorized
member of the bar to appear in any case in
which said government has an interest direct
or indirect. (Rule 138, Sec. 33)
c. In the court of a justice of the peace a party
may conduct his litigation in person, with the
aid of an agent or friend appointed by him
for the purpose, or with the aid an attorney.
In any other court, a party may conduct his
litigation personally or by aid of an attorney,
and his appearance must be either personal
or by a duly authorized member of the bar.
(Rule 138, Sec. 34)
d. Non-lawyers may appear before the
Commission or any Labor Arbiter only:
a. If they represent themselves; or
b. If they represent their organization or
members thereof. (Article 222, P.D. No.
442)
e. A non-lawyer can represent a claimant
before the Cadastral Court. (Sec. 9, Act. No.
2259)
825
6. Public Officials and the Practice Of Law
a. Prohibitions and Disqualifications of
Former Government Attorneys
b. Rationale for the Prohibitions and
Disqualifications Under Rule 6.03 of
the CPR
Private lawyers who, during their tenure in
government service, had possessed the power to
influence the outcome of the proceedings, are
bound to enjoy an undue advantage over other
private lawyers because of their substantial
access to confidential information on the matter
(including the submissions of a counter-party), as
well as to the government's resources dedicated
to process/resolve the same (including contacts
in the institution where the matter is pending).
Thus, to obviate the temptation of these
government lawyers to exploit the information,
contacts, and influence garnered while in the
service when they leave for private practice, the
prohibition under Rule 6.03 was formulated. (In
Re: Atty. Romulo P. Atencia, A.C. No. 8911, July
08, 2019)
There are two theories on the prohibition and
disqualification of former government attorneys:
1. The “adverse-interest conflict”
A former government lawyer is enjoined from
representing a client in private practice if the
matter is substantially related to a matter that the
lawyer dealt with while employed by the
government and if the interests of the current
and former clients are adverse. (PCGG vs.
Sandiganbayan, et al. G.R. Nos. 151809-12, April
12, 2005)
2. The “congruent-interest conflict”
The disqualification does not really involve a
conflict at all, as it prohibits the lawyer from
representing a private practice client even if the
interests of the former government client and the
new client are entirely parallel. (PCGG vs.
Sandiganbayan, et al. G.R. Nos. 151809-12, April
12, 2005)
a) Public Officials Who Cannot
Practice Law or Can Practice Law
with Restrictions
The following individuals/authorities are not
allowed to engage in the private practice of law:
1. Judges and other officials as employees of
the Supreme Court (Section 35, Rule 138,
Rules of Court)
2. Officials and employees of the OSG (Section
35, Rule 138, Rules of Court)
3. Government prosecutors (People vs.
Villanueva, G.R. No. L-19450, June 16,
1951)
4. President, Vice-President, members of the
cabinet, their deputies and assistants (Article
VII, Sec. 13, 1987 Constitution)
5. Members of the Constitutional Commission
(Article IX, Section 2, 1987 Constitution)
6. Ombudsman and his deputies (Article IX,
Sec 8[2], 1987 Constitution)
7. All governors, city and municipal mayors
(Section 90, R.A. No. 7160)
8. Members of the Judicial Bar Council ((Article
IX-A, Sec. 2, 1987 Constitution)
9. Those prohibited by special law. (Query of
Atty. KarenM. Silverio-Buffe, A.M. No. 08-6-
352-RTC, August 19, 2009)
The following are allowed to practice law but with
restrictions:
1. Senators and Members of the House of
Representatives (Article VI, Section 14, 1987
Constitution)
2. Members of the Sanggunian (Section 90,
R.A. No. 7160)
3. Retired Justice or Judge (Section 1, R.A. No.
910)
826
7. Lawyers Authorized to Represent The
Government
Any official or other person appointed or
designated in accordance with law to appear for
the Government of the Philippines or any of its
officials shall have all the rights of a duly
authorized member of the bar to appear in any
case in which said government has an interest,
direct or indirect (Rule 138, Sec. 33).
The following are authorized to represent the
government:
a. Solicitor General;
b. Assistant Solicitor General;
c. Solicitor and Trial Attorney;
d. State Prosecutors and state counsel in the
DOJ;
e. Provincial and city prosecutors and their
assistants and other attorneys in other legal
offices of the government; and
f. Any official or other person appointed or
designated in accordance with law to appear
for the Government of the Philippines (Rule
138, Sec. 33).
The Solicitor General is the lawyer of the Republic
and its officials sued in their official capacity. In
view of the many cases handled, he usually
deputizes government lawyers to represent him
in some cases. When the Solicitor General has
deputized a government lawyer, he remains to be
the principal; hence, the notice of legal processes
on the deputized counsel is not binding until the
notice is actually received by the Solicitor General
(National Power Corp. vs. NLRC, G.R. No.
211731, May 29, 1997).
However, if a government agency appears by its
authorized internal counsel, the notice to the
agency‘s counsel is deemed notice to the Solicitor
General (Agpalo, Legal and Judicial Ethics, 2009
ed., p. 353; Commissioner of Customs vs. Court
of Tax Appeals, G.R. No. 125355, March 27,
2000).
Duty of the Solicitor General to represent
one party whereby two government
agencies are in conflict
It is incumbent upon the Solicitor General to
present to the court that which would legally
uphold the best interest of the government. The
other government agency adversely affected, if it
still believes in the merits of its case, may appear
on its own behalf through its legal officer or
representative. (Republic of the Philippines vs.
Heirs of Cuizon, G.R. No. 191531, March 6, 2013)
In criminal cases, the Solicitor General steps in
only when the case has already reached the Court
of Appeals. While it is with the lower courts, it is
the public prosecutor which represents the
government. (Rule 110, Sec. 5)
In case of Local Government Units (LGUs), a legal
officer represents the LGU in all civil actions and
special proceedings wherein the LGU or any
officials thereof, in his official capacity, is a party
[Sec. 481(b.3.1), Local Government Code].
8. The Lawyer’s Oath
I, _______________, do solemnly swear that I
will maintain allegiance to the Republic of the
Philippines; I will support its Constitution and
obey the laws as well as the legal orders of the
duly constituted authorities therein; I will do no
falsehood, nor consent to the doing of any in
court; I will not wittingly or willingly promote or
sue any groundless, false or unlawful suit, nor
give aid nor consent to the same; I will delay no
man for money or malice, and will conduct myself
as a lawyer according to the best of my
knowledge and discretion with all good fidelity as
well to the courts as to my clients; and I impose
827
upon myself this voluntary obligation without any
mental reservation or purpose of evasion. So help
me God.
(a) I, _______________, do solemnly swear that
(b) I will maintain allegiance to the Republic of
the Philippines; I will support its Constitution and
obey the laws as well as the legal orders of the
duly constituted authorities therein;
(c) I will do no falsehood, nor consent to the
doing of any in court; I will not wittingly or
willingly promote or sue any groundless, false or
unlawful suit, nor give aid nor consent to the
same;
(d) I will delay no man for money or malice, and
will conduct myself as a lawyer according to the
best of my knowledge and discretion with all good
fidelity as well to the courts as to my clients; and
I impose upon myself this voluntary obligation
without any mental reservation or purpose of
evasion. So help me God.
Note: Dissecting the lawyer’s oath:
i. Par. (b) deals with the lawyer and society
ii. Par. (c) deals with the lawyer and the courts
and the lawyer and the legal profession
iii. Par. (d) deals with the lawyer and the client
Importance of the Lawyer’s Oath
1. The lawyer’s oath is not a mere ceremony or
formality for practicing law. Every lawyer
should at all times weigh his actions
according to the sworn promises he makes
when taking the lawyer’s oath. If all lawyers
conducted themselves strictly according to
the lawyer’s oath and the Code of
Professional Responsibility, the
administration of justice will undoubtedly be
fairer, faster, and easier for everyone
concerned (In re: AI C. Argosino, B.M. No.
712, March 19, 1997).
2. By taking the lawyer’s oath, a lawyer
becomes a guardian of truth and the rule of
law and an indispensable instrument in the
fair and impartial administration of justice.
Good moral character includes, at least,
common honesty. Deception and other
fraudulent acts are not merely unacceptable
practices that are disgraceful and
dishonorable; they reveal a basic moral flaw
(Olbes vs. Deciembre, A.C. No. 5364, April,
2005).
3. The lawyer’s oath is not mere facile words,
drift and hollow, but a sacred trust that must
be upheld and kept inviolable (Sebastian vs.
Calis, Adm. Case No. 5118, September 9,
1999).
4. A lawyer's oath is one impressed with the
utmost seriousness; it must not be taken
lightly. Every lawyer must do his best to live
up to it. There would be a failure of justice if
courts cannot rely on the submission as well
as the representations made by lawyers,
insofar as the presentation of evidence,
whether oral or documentary, is concerned
(Berenguer vs. Carranza, A.C. No. 716,
January 30, 1969).
5. One's admission to the Bar is by no means a
license to gloss over the loopholes in
legislation, to hijack the legal processes, or
to manipulate the technical decisions of
those unlearned in law. Among the sworn
obligations of attorneys upon taking the
Lawyer's Oath is to uphold the Constitution
and obey the laws of the land at all times,
never to waver even if vices of luxury,
convenience, and worldly excesses tempt
them so (Partsch vs. Vitorillo, A.C. No.
10897, January 4, 2022, J. Hernando).
828
Significance of the Lawyer’s Oath
“The significance of the oath is that it not only
impresses upon the attorney his responsibilities
but it also stamps him as an officer of the court
with rights, powers and duties as important as
those of the judges themselves. It is a source of
his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary
action.” (Agpalo, Legal Ethics, 1992 ed., p. 59).
The Lawyer’s Oath is a source of obligations and
duties of every lawyer. It is not a mere ceremony
or formality that only needs to be memorized as
one of the requirements in the admission to the
Bar. It is a solemn agreement which reminds the
members of the Bar to uphold the rule of law and
to champion justice at all times. It is a pledge that
must be ingrained in the heart of every lawyer
reflecting his actions not only in the practice of
his legal profession but also in his personal life.
Any conduct unbecoming of a lawyer constitutes
a violation of his oath. Any violation of the oath
may be punished with either disbarment, or
suspension from the practice of law, or other
commensurate disciplinary action (Harper v.
Ibanez, A.C. No. 10364, September 7, 2020).
Effect when a lawyer represents a client
when he accepts a professional
employment for his services or a retainer
agreement:
By accepting a retainer, he impliedly makes the
following representations:
a. that he possesses the requisite degree of
learning, skill and ability other lawyers
similarly situated possess;
b. that he will exert his best judgment in the
prosecution or defense of the litigation
entrusted to him;
c. that he will exercise reasonable care and
diligence in the use of his skill and in the
application of his knowledge to his client's
cause;
d. and that he will take all steps necessary to
adequately safeguard his client's interest
(Belleza vs. Macasa, A.C. No. 7815, July 23,
2009 citing Islas vs. Platon, G.R. No. L-
23183, December 29, 1924).
B. DUTIES AND RESPONSIBILITIES OF A
LAWYER UNDER THE CODE OF
PROFESSIONAL RESPONSIBILITY
Four-fold Duties of a Lawyer Under the
Code of Professional Responsibility
1. To the Public/Society - A lawyer should
not violate his responsibility to society as a
whole; he must be an exemplar for
righteousness. A lawyer must be ready to
render legal aid, foster social reforms, be a
guardian of due process, and be aware of his
special role in the solution of special
problems and be always ready to lend
assistance in the study and solution of social
problems. (Chapter 1, Code of Professional
Responsibility)
2. To the Bar/Legal Profession - A lawyer
must observe candor, fairness, courtesy and
truthfulness in his conduct towards other
lawyers, avoid encroachment in the business
of other lawyers, and uphold the honor of
the profession. (Chapter 2, Code of
Professional Responsibility)
3. To the Courts - A lawyer must maintain
towards the court a respectful attitude,
candor, fairness and good faith, defend the
courts against unjust criticism, uphold the
court’s authority and dignity, obey court
orders and processes, and assist in the
829
 administration of justice. (Chapter 3, Code of
Professional Responsibility)
4. To the Clients - A lawyer owes his entire
devotion to the interests of his client,
warmth and zeal in the maintenance of the
defense of his rights and exertion of utmost
learning ability to the end that nothing be
taken or withheld from his client except in
accordance with law. He owes a duty of
competent and zealous representation to the
client, and should preserve his client’s
secrets, preserve his funds and property and
avoid conflicts of interest. (Chapter 4, Code
of Professional Responsibility)
Duties of a Lawyer Under the Rules of Court
1. To maintain allegiance to the Republic of the
Philippines and to support the Constitution
and obey the laws of the Philippines;
2. To observe and maintain the respect due to
the courts of justice and judicial officers;
3. To counsel or maintain such actions or
proceedings only as appear to him to be just,
and such defenses only as he believes to be
honestly debatable under the law;
4. To employ, for the purpose of maintaining
the causes confided to him, such means only
as are consistent with truth and honor, and
never seek to mislead the judge or any
judicial officer by an artifice or false
statement of fact or law;
5. To maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets
of his client, and to accept no compensation
in connection with his client’s business
except from him or with his knowledge and
approval;
6. To abstain from all offensive personality and
to advance no fact prejudicial to the honor
or reputation of a party or witness, unless
required by the justice of the cause with
which he is charged;
7. Not to encourage either the commencement
or the continuance of an action or
proceeding, or delay any man’s cause, from
any corrupt motive or interest;
8. Never to reject, for any consideration
personal to himself, the cause of the
defenseless or oppressed;
9. In the defense of a person accused of a
crime, by all fair and honorable means,
regardless of his personal opinion as to the
guilt of the accused, to present every
defense that the law permits, to the end that
no person may be deprived of life or liberty,
but by due process of law (Rule 138, Sec.
20).
Duties of a Lawyer under the Code of
Professional Responsibility
TO SOCIETY (CANONS 1 TO 6)
1. Duty to uphold the Constitution, obey the
laws of the land and promote respect for law
and legal processes;
2. Duty to make legal services available in an
efficient and convenient manner;
3. Duty to use only true, honest, fair, dignified
and objective information in making known
his legal services;
4. Duty to participate in the improvement and
reforms in the legal system;
5. Duty to keep abreast of legal developments,
participate in continuing legal education
programs, support efforts to achieve high
standards in law schools and practical
training of law students, and assist in
disseminating the law and jurisprudence;
6. These canons apply to lawyers in
government services.
830
TO THE LEGAL PROFESSION (CANONS 7 TO
9)
1. Duty to uphold the integrity and dignity of
the legal profession, and support the
activities of the Integrated Bar;
2. Duty to conduct himself with courtesy,
fairness and candor towards professional
colleagues and avoid harassing tactics
against opposing counsel;
3. Duty not to, directly or indirectly, assist in
the unauthorized practice of law.
TO THE COURTS (CANONS 10 TO 13)
1. Duty of candor, fairness and good faith to
the court;
2. Duty to observe and maintain the respect
due to the courts and judicial officers and to
insist on similar conduct by others;
3. Duty to assist in the speedy and efficient
administration of justice;
4. Duty to rely upon the merits of his cause and
refrain from any impropriety which tends to
influence, or gives the appearance of
influencing the court.
TO THE CLIENT (CANONS 14 TO 22)
1. Duty not to refuse his services to the needy;
2. Duty to observe candor, fairness and loyalty
in all his dealings and transactions with his
clients;
3. Duty to hold in trust all moneys and
properties of his client that may come into
his profession;
4. Duty of fidelity to the cause of his client and
to be mindful of the trust and confidence
reposed in him;
5. Duty to serve his client with competence and
diligence;
6. Duty to represent his client with zeal within
the bounds of the law;
7. Duty to charge only fair and reasonable fees;
8. Duty to preserve the confidence and secrets
of his client even after the attorney-client
relation is terminated;
9. Duty to withdraw his services only for good
cause and upon notice appropriate in the
circumstances.
C. SUSPENSION, DISBARMENT, AND
DISCIPLINE OF LAWYERS
Rationale for the Rule
If the rule were otherwise, members of the bar
would be emboldened to disregard the very oath
they took as lawyers, prescinding from the fact
that as long as no private complainant would
immediately come forward, they stand a chance
of being completely exonerated from whatever
administrative liability they ought to answer for.
It is the duty of this Court to protect the integrity
of the practice of law as well as the administration
of justice (Heirs of Pedro Alilano vs. Examen, A.C.
No. 10132, March 24, 2015).
1. Nature and Characteristics of
Disciplinary actions against Lawyers
a. Sui Generis
Disciplinary proceedings against lawyers are sui
generis. Neither purely civil nor purely criminal,
they do not involve a trial of an action or a suit,
but are rather investigations by the Court into the
conduct of one of its officers. Public interest is
their primary objective, and the real question for
determination is whether or not the attorney is
still a fit person to be allowed the privileges as
such. (AA Total Learning Center for Young
Achievers vs. Atty. Caronan, A.C. No. 12418,
March 10, 2020).
The Court exercises the power to disbar with
great caution. Being the most severe form of
831
disciplinary sanction, it is imposed only for the
most imperative reasons and in clear cases of
misconduct affecting the standing and moral
character of the lawyer as an officer of the court
and a member of the bar. (Atty. Perito vs. Atty.
Baterina, A.C. No. 12631, July 8, 2020).
A proceeding for suspension or disbarment is in
reality an investigation by the court into the
conduct of its officer or an examination into his
character (In re: Almacen, G.R. No. L-27654,
February 18, 1970).
The examination, like the one before admission,
is merely a test of fitness. It is nonetheless a
JUDICIAL PROCEEDING (Santiago vs. Calvo, G.R.
No. L-24649, March 17, 1926).
i. It is not a civil or criminal proceeding;
ii. Double jeopardy cannot be availed of as a
defense;
iii. It can be instituted motu proprio by the
Supreme Court or the IBP;
iv. It can proceed regardless of interest of lack
of interest of complainant;
v. It is confidential;
vi. It is imprescriptible; and
vii. It constitutes due process in itself.
A case of suspension or disbarment may proceed
regardless of interest or lack of interest of the
complainant. What matters is whether, on the
basis of the facts borne out by the record, the
charge of deceit and grossly immoral conduct has
been proven. This rule is premised on the nature
of disciplinary proceedings. A proceeding for
suspension or disbarment is not a civil action
where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary
proceedings involve no private interest and afford
no redress for private grievance. They are
undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of
preserving courts of justice from the official
ministration of persons unfit to practice in them.
The attorney is called to answer to the court for
his conduct as an officer of the court. The
complainant or the person who called the
attention of the court to the attorney's alleged
misconduct is in no sense a party, and has
generally no interest in the outcome except as all
good citizens may have in the proper
administration of justice (Loberes-Pintal vs.
Baylosis, A.C. No. 11545 [Formerly CBD Case No.
12-3439], January 24, 2017).
It is not a criminal prosecution as the
proceedings are not meant as a punishment
depriving him a source of livelihood but is rather
that those who exercise this function should be
competent, honorable and reliable in order that
courts and the public may rightly repose
confidence in them (Ong vs. Unto, Adm. Case no.
2417, February 6, 2002).
Disbarment, jurisprudence teaches, should not be
decreed where any punishment less severe, such
as reprimand, suspension, or fine, would
accomplish the end desired. This is as it should
be considering the consequence of disbarment on
the economic life and honor of the erring person
(Atty. Ricardo Salomon, Jr. vs. Atty. Joselito C.
Frial, A.C. No. 7820, September 12, 2008).
We note the affidavit of desistance filed by
Gonzales. However, we are not bound by such
desistance as the present case involves public
interest. Indeed, the Courts exercise of its power
to take cognizance of administrative cases
against lawyers is not for the purpose of
enforcing civil remedies between parties, but to
protect the court and the public against an
attorney guilty of unworthy practices in his
profession (Leticia Gonzales vs. Atty. Marcelino
Cabucana, A.C. No. 6836, January 23, 2006).
Non-joinder of a party is not a ground to dismiss
a disciplinary proceeding. We emphasize that in
832
disbarment proceedings, the Court merely calls
upon members of the bar to account for their
actuations as officers of the Court. Consequently,
only the lawyer who is the subject of the case is
indispensable. No other party, not even a
complainant, is needed (Chavez vs. Lazaro, A.C.
No. 7045, September 05, 2016 citing Coronel vs.
Cunanan, A.C. No. 6738, August 12, 2015).
Furthermore, the right to institute a disbarment
proceeding is not confined to clients nor it is
necessary that the person complaining suffered
injury from the alleged wrong. Disbarment
proceedings are matters of public interest and the
only basis for judgment is the proof or failure of
proof of the charges; and not whether the
complaining witnesses suffered injury from the
acts complained of, nor whether the
complainants waived or withdrew the charges
(Navarro vs. Meneses III, CBD A.C. No. 313,
January 30, 1998).
Rationale for the Rule
If the rule were otherwise, members of the bar
would be emboldened to disregard the very oath
they took as lawyers, prescinding from the fact
that as long as no private complainant would
immediately come forward, they stand a chance
of being completely exonerated from whatever
administrative liability they ought to answer for.
It is the duty of this Court to protect the integrity
of the practice of law as well as the administration
of justice (Heirs of Pedro Alilano vs. Examen, A.C.
No. 10132, March 24, 2015).
b. Prescription of actions
On Disbarment Proceeding
Prescription cannot be invoked as a defense in a
disbarment proceeding.
The rule is that “The ordinary statutes of
limitation have no application to disbarment
proceedings, nor does the circumstance that the
facts set up as a ground for disbarment constitute
a crime, prosecution for which in a criminal
proceeding is barred by limitation, affect the
disbarment proceeding, . . . (5 Am. Jur. 434).”
(Calo vs. Degamo, A.C. No. 516, June 27, 1967)
On Administrative Complaint
An administrative complaint against a member of
the bar does not prescribe. (A.M. No. RTJ-01-
1657, February 23, 2004).
On the technical issue of prescription, the Court
held that prescription does not lie in
administrative proceedings against lawyers (Frias
vs. Bautista-Lozada, A.C. No. 6656, May 4, 2006).
Thus, the Court ruled that the filing of a
disciplinary complaint does not prescribe,
regardless of the number of years that lapsed
(Heirs of Lydio Falame vs. Baguio, A.C. No. 6876,
March 7, 2008).
2. Grounds
The grounds for disbarment or suspension are
the following:
1. Deceit;
2. Malpractice or other gross misconduct
in such office;
3. Grossly immoral conduct;
4. Conviction of a crime involving moral
turpitude;
5. Violation of oath of office;
6. Willful disobedience of a lawful order
of a superior court;
7. Corruptly or willfully appearing as an
attorney for a party to a case without
authority to do so; and
833
8. Disbarment in foreign jurisdiction.
(Sec. 27, Rule 138 of the Rules of
Court)
The grounds enumerated are not exclusive.
The statutory enumeration is not to be taken as
a limitation on the general power of Supreme
Court to suspend or disbar a lawyer, Hence, a
lawyer may be removed from office, or
suspended from the practice of law by the Court
on grounds not found in the statute as when their
acts are contrary to honesty or good morals or do
not approximate the highest degree of morality
and integrity expected of the members of the bar.
(In Re: Sta. Maria vs. Tuason, A.C. No. 396, July
31, 1964).
Deceit – is a species of fraud (Sim, Jr. vs. Court
of Appeals, G.R. No. 159280, 18 May 2004). And
deceit is the false representation of a matter of
fact whether by words or conduct, by false or
misleading allegations, or by concealment of that
which should have been disclosed which deceives
or is intended to deceive another so that he shall
act upon it, to his legal injury (Aricheta vs. People
of the Philippines, G.R. No. 172500, September
21, 2007).
It is a false representation of a matter of fact
whether by words or conduct, by false or
misleading allegations, or by concealment of
that which should have been disclosed which
deceives or is intended to deceive another so
that he shall act upon it to his legal injury
[Alcantara v. CA, G.R. No. 147259 (2003)]
Legal malpractice - pertains to the failure of an
attorney to use such skill, prudence and diligence
as lawyers of ordinary skill and capacity
commonly possess and exercise in the
performance of tasks which they undertake, and
when such failure proximately causes damage, it
gives rise to an action in tort (Tan Tek Beng vs.
David, A.C. No. 1261, December 29, 1983). The
practice of soliciting cases at law for the purpose
of gain, either personally or through paid agents
or brokers, constitutes malpractice (Sec. 27, Rule
138, ROC).
Malpractice ordinarily refers to any malfeasance
or dereliction of duty committed by a lawyer. It
consists of a failure of an attorney to use such
skill, prudence and diligence as lawyers of
ordinary skill and capacity commonly possess
and exercise in the performance of tasks which
they undertake, and when such failure
proximately causes damage, it gives rise to an
action in tort. [Tan Tek Beng v. David, A.C. No.
1261 (1983)].
Gross misconduct – It means any inexcusable,
shameful or flagrant unlawful conduct on the part
of the person concerned in the administration of
justice which is prejudicial to the rights of the
parties or to the determination of a cause, a
conduct that is generally motivated by a
predetermined, obstinate, or intentional purpose
(Yumol, Jr. vs. Ferrer, Sr., A.C. No. 6585, April
21, 2005).
Gross immoral conduct - That conduct which
is willful, flagrant or shameless and which shows
a moral indifference to the opinion of the good
and respectable members of the community (De
los Reyes vs. Aznar, A.M. No. 1334, November
28, 1989).
Immorality has not been confined to sexual
matters, but includes conduct inconsistent with
rectitude, or indicative of corruption, indecency,
depravity and dissoluteness; or is willful,
flagrant, or shameless conduct showing moral
indifference to opinions of respectable members
of the community, and an inconsiderate attitude
834
toward good order and public welfare. (Ceniza
vs Ceniza Jr., A.C. No. 8335, April 10, 2019)
Moral turpitude – defined as everything which
is done contrary to justice, modesty, or good
morals; an act of baseness, vileness or depravity
in the private and social duties which a man owes
his fellowmen, or the society in general, contrary
to justice, honesty, modesty or good morals (In
re: Basa, 041 Phil 275 December 7, 1920).
A lawyer may be disciplined or suspended from
the practice of law for any misconduct, whether
in his professional or private capacity, which
shows him to be wanting in character, honesty,
probity and good demeanor and thus unworthy
to continue as an officer of the court (Vivo vs.
PAGCOR, G.R. No. 187854, November 12, 2013).
A lawyer may be disbarred or suspended not only
for acts and omissions of malpractice and
dishonesty in his professional dealings. He may
also be penalized for gross misconduct not
directly connected with his professional duties
that reveal his unfitness for the office and his
unworthiness of the principles that, the privilege
to practice law confers upon him (Natanuan vs.
Tolentino, A.C. No. 4269, October 11, 2016).
There must be a conviction. The mere existence
of criminal charges cannot be a ground for
suspension or disbarment. [Agpalo, 2004]
Violation of the oath - A lawyer may be
disbarred or suspended for any violation of his
oath, a patent disregard of his duties, or an
odious deportment unbecoming an attorney. A
lawyer must at no time be wanting in probity and
moral fiber which are not only conditions
precedent to his entrance to the Bar but are
likewise essential demands for his continued
membership. (Penilla vs. Alcid, Jr., A.C. No. 9149,
September 4, 2013)
Willful disobedience or Insubordination - It
requires the concurrence of the following
requisites: (1) the employee's assailed conduct
must have been willful or intentional, the
willfulness being characterized by a "wrongful
and perverse attitude"; and (2) the order violated
must have been reasonable, lawful, made known
to the employee and must pertain to the duties
which he had been engaged to discharge.
(Villanueva vs. Ganco Resort and Recreation,
G.R. No. 227175, January 08, 2020)
Willfully appears as an attorney for a party
to a case without authority - Lawyers must be
mindful that an attorney has no power to act as
counsel for a person without being retained nor
may he appear in court without being employed
unless by leave of court. If an attorney appears
on a client’s behalf without a retainer or the
requisite authority neither the litigant whom he
purports to represent nor the adverse party may
be bound or affected by his appearance unless
the purported client ratifies or is estopped to deny
his assumed authority. If a lawyer corruptly or
willfully appears as an attorney for a party to a
case without authority, he may be disciplined or
punished for contempt as an officer of the court
who has misbehaved in his official transaction.
(Villahermosa, Sr. vs. Caracol, A.C. No. 7325,
January 21, 2015)
Disbarment in foreign jurisdiction - The
disbarment or suspension of a member of the
Philippine Bar by a competent court or other
disciplinary agency in a foreign jurisdiction where
he has also been admitted as an attorney is a
ground for his disbarment or suspension if the
basis of such action includes any of the acts
mentioned under Section 27, Rule 138 of the
Revised Rules of Court.
835
The judgment, resolution or order of the foreign
court or disciplinary agency shall be prima facie
evidence of the ground for disbarment or
suspension. (In Re: Atty. Leon
G. Maquera, B.M. No. 793, July 30, 2004)
Other Statutory Grounds
i. Acquisition of an interest in the subject
matter of the litigation, either through
purchase or assignment (Art. 1491, NCC);
ii. Breach of professional duty, inexcusable
negligence, or ignorance, or for the
revelation of the client’s secrets (Art. 208,
RPC);
iii. Representing conflicting interests (Art. 209,
RPC).
Quantum of Proof
In disciplinary proceedings against members of
the bar, only clear preponderance of evidence is
required to establish liability. As long as the
evidence presented by complainant or that taken
judicial notice of by the Court is more convincing
and worthy of belief than that which is offered in
opposition thereto, the imposition of disciplinary
sanction is justified (Aquilino Q. Pimentel, Jr. vs.
Attys. Antonio M. Llorente and Ligaya P. Salayon,
A.C. No. 4680, August 29, 2000).
How Instituted
a. Proceedings for the disbarment, suspension,
or discipline of attorneys may be taken by
the Supreme Court motu propio; or
b. Proceedings for the disbarment, suspension,
or discipline of attorneys may be taken by
the Integrated Bar of the Philippines (IBP)
upon the verified complaint of any person
c. IBP Board of Governors may, motu propio or
upon referral by the Supreme Court or by a
Chapter Board of Officers, or at the instance
of any person, initiate and prosecute proper
charges against erring attorneys including
those in the government service (Sec. 1,
Rule 139-B, ROC).
3. PROCEEDINGS (RULE 139-B OF THE
RULES OF COURT, AS AMENDED)
Procedural Steps for Disbarment in the
Integrated Bar of the Philippines (IBP)
a. Institution of the action
The complaint shall state clearly and concisely the
facts complained of and shall be supported by
affidavits of persons having personal knowledge
of the facts therein alleged and/or by such
documents as may substantiate said facts (Ibid).
b. Determination whether the complaint
is meritorious
Where the complaint appears to be meritorious,
the Investigator shall direct that a copy be
served upon the respondent, requiring him to
answer the same within fifteen (15) days from
the date of service.
Where the complaint lacks merit on its face, or
if the answer shows to the satisfaction of the
Investigator that the complaint is not
meritorious, the same may be dismissed by the
Board of Governors upon his recommendation.
A copy of the resolution of dismissal shall be
furnished to the complainant and the Supreme
Court which may review the case motu proprio
or upon timely appeal of the complainant filed
within 15 days from notice of the dismissal of
the complainant . (Rule 139-B, Sec. 5)
c. Assignment of complaint to IBP
National Grievance Investigator;
The Board of Governors shall appoint from
among IBP members an Investigator or, when
special circumstances so warrant, a panel of three
836
(3) investigators to investigate the complaint
(Rule 139-B, Sec. 2).
d. If the complaint is meritorious, the
respondent shall be served with a copy
requiring him to answer within 15 days
from service; (Rule 139-B, Sec. 5).
e. Respondent to file a verified answer in
six (6) copies; (Rule 139-B, Sec. 6)
f. Suspension pending action (Interim
suspension);
After receipt of the answer or lapse of the period
to do so, the Supreme Court, may, motu propio
or at the instance of the IBP Board of Governors,
upon recommendation by the investigator,
suspend an attorney from practice, for any of the
causes under Rule 138, Sec. 27, during the
pendency of the investigation.
(Rule 139-B, Sec. 15)
g. Hearing
Upon joinder of issues or upon failure of the
respondent to answer, the respondent shall be
given full opportunity to defend himself; if upon
reasonable notice, the respondent fails to appear,
the investigation shall proceed ex parte. The
Investigator shall terminate the investigation
within three (3) months from the date of its
commencement, unless extended for good cause
by the Board of Governors upon prior application
(Rule 139-B, Sec. 8).
h. Findings and recommendations of the
investigator
Not later than thirty (30) days from the
termination of the investigation, the Investigator
shall submit a report containing his findings of
fact and recommendations to the IBP Board of
Governors (Sec. 10, Rule 139-B).
i. Review by the Board of Governors
Every case heard by an investigator shall be
reviewed by the IBP Board of Governors upon the
record and evidence transmitted to it by the
Investigator with his report. The decision of the
Board upon such review shall be in writing and
shall clearly and distinctly state the facts and the
reasons on which it is based. It shall be
promulgated within a period not exceeding thirty
(30) days from the next meeting of the Board
following the submittal of the Investigator's
Report.
If the Board, by the vote of a majority of its total
membership, determines that the respondent
should be suspended from the practice of law or
disbarred, it shall issue a resolution setting forth
its findings and recommendations which,
together with the whole record of the case, shall
forthwith be transmitted to the Supreme Court for
final action.
If the Board exonerates the respondent or the
disciplinary sanction imposed by it is less than
suspension or disbarment (such as admonition,
reprimand, or fine) it shall issue a decision
exonerating respondent or imposing such
sanction. The case shall be deemed terminated
unless upon petition of the complainant or other
interested party filed with the Supreme Court
within fifteen (15) days from notice of the Board's
resolution, the Supreme Court orders otherwise.
(Rule 139-B, Sec. 12).
Procedural Steps for Disbarment by the
Supreme Court:
837
In proceedings initiated motu propio by the
Supreme Court or in other proceedings when the
interest of justice so requires:
1. The Supreme Court may refer the case for
investigation to the Solicitor-General or to
any officer of the Supreme Court; or
2. Refer to judge of a lower court, in which case
the investigation shall proceed in the same
manner provided in Sections 6 to 11 of Rule
139-B, save that the review of the report of
investigation shall be conducted directly by
the Supreme Court (Sec. 13, Rule 139-B,
ROC).
Res ipsa loquitor - does not dispense with the
necessity of proving the facts from which the
inference of evil intent is based. It merely
expresses the clearly sound and reasonable
conclusion that when facts are admitted or
already shown by the record, and no credible
explanation that would negate the strong
inference of evil intent is forthcoming, no further
hearing to establish them to support a judgment
as to the culpability of a respondent is necessary
(Filipinas Bank v, Tirona-Liwag, A.M. No. CA-90-
11, 18 October 1990).
This principle or doctrine applies to either judges
or lawyers. Judges had been dismissed from the
service without need of a formal investigation
because based on the records, the gross
misconduct or inefficiency of the judges clearly
appears (Uy vs. Mercado, A.M. No. R-368-MTJ,
September 30, 1987).
The same principle applies to lawyers. Thus,
where on the basis of the lawyer’s comment or
answer to show a cause order of SC, it appears
that the lawyer has so conducted himself in a
manner which exhibits the blatant disrespect to
the court, or his want of good moral character or
his violation of the lawyer’s oath, the attorney
may be suspended or disbarred without need of
a trial-type proceeding. What counts is the lawyer
has been given the opportunity to air his side
(Prudential Bank vs. Castro, A.M. No. 2756, June
5, 1986).
Mitigating circumstances:
1. Absence of a prior disciplinary record;
2. Absence of a dishonest or selfish motive;
3. Personal or emotional problems;
4. Timely good faith effort to make restitution
or to rectify consequences of misconduct;
5. Full and free disclosure to disciplinary board
or cooperative attitude toward proceedings;
6. Inexperience in the practice of law;
7. Character or reputation;
8. Physical or mental disability or impairment;
9. Delay in disciplinary proceedings;
10. Interim rehabilitation;
11. Imposition of other penalties or sanctions;
12. Remorse; and
13. Remoteness of prior offenses (Rule 9.32, IBP
Guidelines for Imposing Lawyer Sanctions).
Aggravating circumstances:
1. Prior disciplinary offenses;
2. Dishonest or selfish motive;
3. A pattern of misconduct;
4. Multiple offenses;
5. Bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply
with rules or orders of the disciplinary
agency;
6. Submission of false evidence, false
statements, or other deceptive practices
during the disciplinary process;
7. Refusal to acknowledge wrongful nature of
conduct;
8. Vulnerability of victim;
9. Substantial experience in the practice of law;
and
838
10. Indifference to making restitution (Rule
9.22, IBP Guidelines for Imposing Lawyer
Sanctions).
Neither Aggravating nor Mitigating
Circumstances:
1. Forced or compelled restitution;
2. Agreeing to the client’s demand for certain
improper behavior or result;
3. Withdrawal of complaint against the lawyer;
4. Resignation prior to completion of
disciplinary proceedings;
5. Complainant’s recommendation as to
sanction; and
6. Failure of injured client to complain (Rule
9.4, IBP Guidelines for Imposing Lawyer
Sanctions).
D. NOTARIAL PRACTICE (A.M. NO. 02-8-13-
SC, AS AMENDED)
Notarial Act and Notarization – refer to any
act that a notary public is empowered to perform
under these Rules. (Sec. 7, Rule II, A.M. No. 02-
8-13-SC, 2004 Rules on Notarial Practice).
Notary Public and Notary – refer to any person
commissioned to perform official acts under these
Rules. (Sec. 9, Rule II, A.M. No. 02-8-13-SC, 2004
Rules on Notarial Practice).
Proof of notarial documents. — Every
instrument duly acknowledged or proved and
certified as provided by law, may be presented in
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of
the execution of the instrument or document
involved. (Sec. 30, Rule 132[b], A.M. No. 19-08-
15-SC)
1. Qualifications of a Notary Public
A notarial commission may be issued by an
Executive Judge to any qualified person who
submits a petition in accordance with these Rules.
(Sec. 1, Rule III, A.M. No.02-8-13-SC, 2004 Rules
on Notarial Practice)
To be eligible for commissioning as notary
public, the petitioner must:
1. be a citizen of the Philippines;
2. be over twenty-one (21) years of age;
3. be a resident in the Philippines for at least
one (1) year and maintains a regular place
of work or business in the city or province
where the commission is to be issued;
4. be a member of the Philippine Bar in good
standing with clearances from the Office of
the Bar Confidant of the Supreme Court and
the Integrated Bar of the Philippines; and
not have been convicted in the first instance
of any crime involving moral turpitude (Sec.
1, Rule III, A.M. No. 02-8-13-SC, 2004 Rules
on Notarial Practice).
2. Term of Office of a Notary Public
A person commissioned as notary public may
perform notarial acts for a period of two (2) years
commencing the first day of January of the year
in which the commissioning is made, unless
earlier revoked or the notary public has resigned
under these Rules and the Rules of Court (Sec.
11, Rule III, Ibid).
Stationary office is required
Regular Place of Work or Business. - The term
"regular place of work or business" refers to a
stationary office in the city or province wherein
the notary public renders legal and notarial
services. (Sec. 11, Rule II, Ibid)
3. Powers and Limitations
Powers and Limitations of Notaries Public
(Rule IV, A.M. No. 02-8-13-SC)
Powers
a. A notary public is empowered to perform the
following notarial acts:
1. Acknowledgements;
2. Oaths and affirmations;
3. Jurats;
839
 4. Signature witnessings;
5. Copy certifications; and
6. Any other act authorized by these
Rules. (Sec. 1[a], Rule IV, 2004 Rules
on Notarial Practice)
b. A notary public is authorized to certify the
affixing of a signature by thumb or other
mark on an instrument or document
presented for notarization if:
1. The thumb or other mark is affixed in
the presence of the notary public and of
two (2) disinterested and unaffected
witnesses to the instrument or
document;
2. Both witnesses sign their own names in
addition to the thumb or other mark;
3. The notary public writes below the
thumb or other mark: “Thumb or Other
Mark affixed by (name of signatory by
mark) in the presence of (names and
addresses of witnesses) and
undersigned notary public”; and
4. The notary public notarized the
signature by thumb or other mark
through an acknowledgement, jurat, or
signature witnessing. (Sec. 1[b], Rule
IV, Ibid.)
c. A notary public is authorized to sign on
behalf of a person who is physically unable
to sign or make a mark on an instrument or
document if:
(1) The notary public is directed by the
person unable to sign or make a mark
to sign on his behalf;
(2) The signature of the notary public is
affixed in the presence of two
disinterested and unaffected witnesses
to the instrument of the document;
(3) Both witnesses sign their own names;
(4) The notary public writes below his
signature: “Signature affixed by notary
in presence of (names and addresses of
person and two [2] witnesses)”; and
(5) The notary public notarizes his
signature by acknowledgement or jurat.
(Sec. 1(c), Rule IV, Ibid).
Prohibitions
GR: A notary public shall not perform a notarial
act outside his regular place of work or business;
XPN: On certain exceptional occasions or
situations, it may be performed at the request of
the parties in the following sites located within his
territorial jurisdiction:
1. Public offices, convention halls, and similar
places where oaths of office may be
administered;
2. Public function areas in hotels and similar
places for the signing of instruments or
documents requiring notarization;
3. Hospitals and other medical institutions
where a party to an instrument or document
is confined for treatment; and
4. Any place where a party to an instrument or
document requiring notarization is under
detention. (Sec. 2[1], Rule IV, Ibid).
A person shall not perform a notarial act if
the person involved as signatory to the
instrument or document -
1. Is not in the notary’s presence
personally at the time of the notarization;
and
2. Is not personally known to the notary
public or otherwise identified by the notary
public through competent evidence of
identity as defined by these Rules. (Sec. 2,
Rule IV, 2004 Rules on Notarial Practice).
The provision bolsters the requirement of
physical appearance as it prohibits the notary
public from performing a notarial act if the
signatory is not in his/her presence at the time of
840
the notarization. (Kiener v. Atty. Amores, A.C. No.
9417, November 18, 2020).
A notary public should not notarize a document
unless the person who signed the same is the
very same person who executed and personally
appeared before him to attest to the contents and
the truth of what are stated therein. Without the
appearance of the person who actually executed
the document in question, the notary public
would be unable to verify the genuineness of the
signature of the acknowledging party and to
ascertain that the document is the party's free act
or deed (Prospero v. Delos Santos, A.C. No.
11583, December 3, 2019.)
Disqualifications
a. The notary public is a party to the
instrument or document that is to be
notarized;
b. He will receive, as a direct or indirect result,
any commission, fee, advantage, right,
title, interest, cash, property, or other
consideration
(XPN: if provided by these Rules and by
law); or
c. He is a spouse, common-law partner,
ancestor, descendant, or relative by affinity
or consanguinity of the principal within the
fourth civil degree. (Sec. 3, Rule IV, 2004
Rules on Notarial Practice ).
In Heirs of Pedro Alilano v. Atty. Examen, the
latter was prohibited to notarize the absolute
deeds of sale since he was related by
consanguinity within the fourth civil degree with
the vendee. The law in force at the time of
signing was Revised Administrative Code where
such prohibition was removed. Thus, Atty.
Examen was not incompetent to notarize the
document even if one of the parties to the deed
was his brother. Under the 2004 Rules on Notarial
Practice, a notary public is again disqualified
among others to perform a notarial act if he is
related by affinity or consanguinity to a principal
within the fourth civil degree. The new rules
cannot be given retroactive effect if they
would work injustice or impair vested rights. In
sum, the deed of donation is valid and compliant
with the solemnities in Article 749 of the Civil
Code. (Patenia-Kinatac-An, et al. v. Patenia-
Decena, et al., G.R. No. 238325, June 15, 2020.)
Refusal to Notarize
A notary public shall not perform any notarial act
even if the person requesting tenders the
appropriate fee if:
a. the notary knows or has good reason to
believe that the notarial act or transaction
is unlawful or immoral;
b. The signatory shows a demeanor which
engenders in the mind of the notary public
reasonable doubt as to the former’s
knowledge of the consequences of the
transaction requiring a notarial act; and
c. In the notary’s judgment, the signatory is
not acting of his or her own free will.
(Sec. 4, Rule IV, 2004 Rules on Notarial
Practice).
False or Incomplete Certificate
A notary public shall not:
a. Execute a certificate containing information
known or believed by the notary to be false.
b. Affix an official signature or seal on a notarial
certificate that is incomplete. (Sec. 5, Rule
IV, Ibid).
Notarial Certificate - refers to the part of, or
attachment to, a notarized instrument or
document that is completed by the notary public,
bears the notary's signature and seal, and states
the facts attested to by the notary public in a
841
particular notarization as provided for by these
Rules. (Sec.8, Rule II, Ibid)
Improper Instruments or Documents
A notary public shall not notarize a blank or
incomplete instrument or document or an
instrument or document without appropriate
notarial certification. (Sec. 6, Rule IV, Ibid).
4. Notarial Register
Notarial Register - refers to a permanently
bound book with numbered pages containing a
chronological record of notarial acts performed by
a notary public. (Sec. 5, Rule II, Ibid).
Form of Notarial Register
a. A notary public shall keep, maintain, protect,
and provide for lawful inspection as provided
in these Rules, a chronological official
notarial register of notarial acts consisting of
a permanently bound book with numbered
pages.
The register shall be kept in books to be
furnished by the Solicitor General to any
notary public upon request and upon
payment of the cost thereof. The register
shall be duly paged, and on the first page,
the Solicitor General shall certify the number
of pages of which the book consists.
For purposes of this provision, a
Memorandum of Agreement or
Understanding may be entered into by the
Office of the Solicitor General and the Office
of the Court Administrator.
b. A notary public shall keep only one active
notarial register at any given time (Sec. 1,
Rule VI, Ibid).
Entries in the Notarial Register
a. For every notarial act, the notary shall record
in the notarial register at the time of
notarization the following:
1. The entry number and page number;
2. The date and time of day of the notarial
act;
3. The type of notarial act;
4. The title or description of the
instrument, document, or proceeding;
5. The name and address of each
principal;
6. The competent evidence of identity as
defined by these Rules if the signatory
is not personally known to the notary;
7. The name and address of each credible
witness swearing to or affirming the
person’s identity;
8. The fee charged for the notarial act;
9. The address where the notarization was
performed if not in the notary’s regular
place of work or business; and
10. Any other circumstance the notary
public may deem of significance or
relevance. (Sec. 2, Rule VI, Ibid)
Regular Place of Work or Business - refers to
a stationary office in the city or province wherein
the notary public renders legal and notarial
services. (Sec. 11, Rule II, Ibid)
b. Shall record in the notarial register the
reasons and circumstances for not
completing a notarial act.
c. Shall record in the notarial register the
circumstances of any request to inspect or
copy an entry in the notarial register,
including the requester’s name, address,
signature, thumbmark or other recognized
identifier, and evidence of identity. The
reasons for refusal to allow inspection or
842
 copying of a journal entry shall also be
recorded.
d. For Contracts: keep an original copy as
part of his records and enter a brief
description of the substance thereof and
shall give to each entry a consecutive
number, beginning with number one in each
calendar year. He shall also retain a
duplicate original copy for the Clerk of Court.
e. Shall give to each instrument or document
executed, sworn to, or acknowledged before
him a number corresponding to the one in
his register, and shall also state on the
instrument or document the page/s of his
register on which the same is recorded. No
blank line shall be left between entries.
f. In case of a protest of any draft, bill of
exchange or promissory note: make a
full and true record of all proceedings in
relation thereto and note whether the
demand for the sum of money was made, by
whom, when, and where; whether he
presented such draft, bill or note; whether
notices were given, to whom and in what
manner; where the same was made, when
and to whom and where directed; and of
eve'y other fact touching the same.
g. At the end of each week: certify in his
notarial register the number of instruments
or documents executed, sworn to,
acknowledged, or protested before him; or if
none, this certificate shall show this fact.
h. A certified copy of each month's entries and
a duplicate original copy of any instrument
acknowledged, within the 10 days of the
month following, be forwarded to the
Clerk of Court and shall be under the
responsibility of such officer. If no entry:
forward a statement to this effect in lieu of
certified copies herein required. (Sec. 2, Rule
VI, Ibid).
Signatures and Thumbmarks
At the time of notarization, the notary's notarial
register shall be signed or a thumb or other mark
affixed by each:
a. principal;
b. credible witness swearing or affirming to the
identity of a principal; and
c. witness to a signature by thumb or other
mark, or to a signing by the notary public on
behalf of a person physically unable to sign.
(Sec. 3, Rule VI, Ibid).
Inspection, Copying, and Disposal
a. In the notary's presence, any person may
inspect an entry in the notarial register,
during regular business hours, provided:
1. the person's identity is personally
known to the notary public or proven
through competent evidence of identity
as defined in these Rules;
2. the person affixes a signature and
thumb or other mark or other
recognized identifier, in the notarial
register in a separate, dated entry;
3. the person specifies the month, year,
type of instrument or document, and
name of the principal in the notarial act
or acts sought; and
4. the person is shown only the entry or
entries specified by him.
b. The notarial register may be examined by a
law enforcement officer in the course of an
official investigation or by virtue of a court
order.
843
c. If the notary public has a reasonable ground the notary public has resigned under these Rules
to believe that a person has a criminal intent and the Rules of Court. (Sec. 11, Rule III, Ibid).
or wrongful motive in requesting
information. from the notarial register, the 6. Competent Evidence of Identity
notary shall deny access to any entry or
entries therein. (Sec. 4, Rule VI, Ibid). The phrase "competent evidence of identity"
refers to the identification of an individual based
Loss, Destruction or Damage of Notarial on:
Register
a. If stolen, lost, destroyed, damaged, or a. at least one current b. the oath or
otherwise rendered unusable or illegible: identification affirmation
1. Notify the Executive Judge within ten document issued by of:
(10) days after informing the an official agency • one
bearing the credible
appropriate law enforcement agency (if
photograph and witness
theft or vandalism) signature of the not
2. Provide a proper receipt or individual, such as but privy to
acknowledgment, including registered not limited to: the
mail and a copy or number of any ➢ Passport instrum
pertinent police report. ➢ Driver’s ent,
license docume
➢ Professional nt or
b. If upon revocation or expiration of a notarial Regulations transact
commission, or death of the notarial register Commission ion who
and notarial records shall immediately be ID, is
delivered to the office of the Executive ➢ National personal
Judge. (Sec. 5, Rule VI, Ibid). Bureau of ly
Investigation known
clearance to the
➢ Police notary
Issuance of Certified True Copies clearance public
➢ Postal ID and who
The notary public shall supply a certified true ➢ Voter’s ID personal
copy of the notarial record, or any part thereof, ➢ Barangay ly knows
to any person applying for such copy upon certification the
➢ Government individu
payment of the legal fees. (Sec. 6, Rule VI, Ibid).
Service and al, or
Insurance • of two
5. Jurisdiction of Notary Public and Place System credible
of Notarization (GSIS) e-card witness
➢ Social es
A person commissioned as notary public may Security neither
perform notarial acts in any place within the System (SSS) of
card whom is
territorial jurisdiction of the commissioning court
➢ Philhealth privy to
for a period of two (2) years commencing the first card the
day of January of the year in which the ➢ Senior citizen instrum
commissioning is made, unless earlier revoked or card ent,

844
 ➢ Overseas docume 2. fails to make the proper entry or entries
Workers nt or in his notarial register concerning his
Welfare transact notarial acts;
Administratio ion who 3. fails to send the copy of the entries to
n (OWWA) ID each
the Executive Judge within the first ten
➢ OFW ID personal
➢ Seaman’s ly knows (10) days of the month following;
book the 4. fails to affix to acknowledgments the
➢ Alien individu date of expiration of his commission;
certificate of al and 5. fails to submit his notarial register,
registration/i shows when filled, to the Executive Judge;
mmigrant to the
6. fails to make his report, within a
certificate of notary
registration public reasonable time, to the Executive Judge
➢ Government docume concerning the performance of his
office ID ntary duties, as may be required by the
➢ Certification identific judge;
from the ation. 7. fails to require the presence of a
National (Sec. principal at the time of the notarial act;
Council for the 12, Rule
8. fails to identify a principal on the basis
Welfare of II, Ibid).
Disable of personal knowledge or competent
Persons evidence;
(NCWDP) 9. executes a false or incomplete
➢ Department certificate under Section 5, Rule IV;
of Social 10. knowingly performs or fails to perform
Welfare and any other act prohibited or mandated
Development
by these Rules; and
(DSWD)
certification 11. commits any other dereliction or act
which in the judgment of the Executive
Judge constitutes good cause for
7. Sanctions revocation of commission or imposition
of administrative sanction.
Revocation and Administrative Sanctions.
c. Upon verified complaint by an interested,
a. The Executive Judge shall revoke a notarial affected or aggrieved person, the notary
commission for any ground on which an public shall be required to file a verified
application for a commission may be denied. answer to the complaint.
b. In addition, the Executive Judge may revoke
the commission of, or impose appropriate If the answer of the notary public is not
administrative sanctions upon, any notary satisfactory, the Executive Judge shall
public who: conduct a summary hearing. If the
allegations of the complaint are not proven,
1. fails to keep a notarial register; the complaint shall be dismissed. If the
charges are duly established, the Executive
Judge shall impose the appropriate

845
 administrative sanctions. In either case, the
aggrieved party may appeal the decision to
the Supreme Court for review. Pending the
appeal, an order imposing disciplinary
sanctions shall be immediately executory,
unless otherwise ordered by the Supreme
Court.
d. The Executive Judge may motu proprio
initiate administrative proceedings against a
notary public, subject to the procedures
prescribed in paragraph (c) above and
impose the appropriate administrative
sanctions on the grounds mentioned in the
preceding paragraphs (a) and (b). (Sec. 1,
Rule XI, Ibid).
Supervision and Monitoring of Notaries
Public
The Executive Judge shall at all times exercise
supervision over notaries public and shall closely
monitor their activities. (Sec. 2, Rule XI, Ibid).
Publication of Revocations and
Administrative Sanctions
The Executive Judge shall immediately order the
Clerk of Court to post in a conspicuous place in
the offices of the Executive Judge and of the Clerk
of Court the names of notaries public who have
been administratively sanctioned or whose
notarial commissions have been revoked. (Sec. 3,
Rule XI, Ibid).
Death of Notary Public
If a notary public dies before fulfilling the
obligations in Section 4(e), Rule VI and Section
2(e), Rule VII, the Executive Judge, upon being
notified of such death, shall forthwith cause
compliance with the provisions of these sections.
(Sec. 4, Rule XI, Ibid).
II. JUDICIAL ETHICS
A. SOURCES
1. New Code of Judicial Conduct for the
Philippine Judiciary
The Bangalore Draft
The New Code of Judicial Conduct for the
Philippine Judiciary supersedes the Canons of
Judicial Conduct to the extent that the provisions
or concepts are embodied in this Code, however,
in case of deficiency or absence of specific
provisions in the New Code, the Canons of
Judicial Ethics and the Code of Judicial Conduct
shall be applicable in a suppletory character.
(New Code of Judicial Conduct for the Philippine
Judiciary, effective June 1, 2004)
Bangalore Draft is intended to be the Universal
Declaration of Judicial Standards applicable in all
judiciaries. (New Code of Judicial Conduct for the
Philippine Judiciary, effective June 1, 2004)
This draft is founded upon certain fundamental
principles:
1. A universal recognition that a competent,
independent and impartial judiciary is
essential if the courts are to fulfill their role in
upholding constitutionalism and the rule of
law;
2. That public confidence in the judicial system
and in the moral authority and integrity of the
judiciary is of utmost importance in a modem
democratic society; and
3. That it is essential that judges, individually
and collectively, respect and honor judicial
office as a public trust and strive to enhance
and maintain confidence in the judicial
system. (Ibid)
Outline of the New Code of Judicial Conduct
for the Philippine Judiciary:
Canon 1: Independence
Canon 2: Integrity
Canon 3: Impartiality
846
Canon 4: Propriety
Canon 5: Equality
Canon 6: Competence and Diligence
Court staff
This includes the personal staff of the judge
including law clerks.
Judge
It means any person exercising judicial power,
however designated.
Judge's family
It includes a judge's spouse, son, daughter, son-
in-law, daughter-in-law, and any other relative by
consanguinity or affinity within the sixth civil
degree, or person who is a companion or
employee of the judge and who lives in the
judge's household. (Ibid)
2. Code of Judicial Conduct
Canon 1
A judge should uphold the integrity and
independence of the judiciary. (Canon 1, Code of
Judicial Conduct)
Canon 2
A judge should avoid impropriety and appearance
of impropriety in all activities. (Canon 2, Code of
Judicial Conduct)
Canon 3
A judge should perform official duties honestly,
and with impartiality and diligence. (Canon 3,
Code of Judicial Conduct)
In Pesayco v. Layague, no less than the Code of
Judicial conduct mandates that a judge shall be
faithful to the laws and maintain professional
competence. Indeed, competence is a mark of a
good judge. A judge must be acquainted with
legal norms and precepts as well as with
procedural rules. When a judge displays an utter
lack of familiarity with the rules, he erodes the
public’s confidence in the competence of our
courts. Such is gross ignorance of the law. One
who accepts the exalted position of a judge
owes the public and the court the duty to
be proficient in the law. Unfamiliarity with the
Rules of Court is a sign of incompetence. Basic
rules of procedure must be at the palm of a
judge’s hands. (State Prosecutors II Comilang vs.
Judge Belen, A.M. No. RTJ-10-2216, June 26,
2012)
A judge, in dispensing justice, "should apply the
law impartially, independently, honestly, and in a
manner perceived by the public to be impartial,
independent and honest." (State Prosecutor
Velasco vs. Hon. Salcedo, A.M. No. RTJ -03-1782,
October 16, 2009)
Illustration:
Judge Ramas irrefragably failed to observe these
standards by making untruthful statements in his
Certificates of Service to cover up his absences.
(Atty. Amante-Descallar vs. Hon. Ramas, A.M.
No. RTJ-06-2015, December 15, 2010)
Canon 5
A judge should regulate extra-judicial activities to
minimize the risk of conflict with judicial duties.
(Canon 5, Code of Judicial Conduct)
B. QUALITIES
Canon 1 - Independence
Judicial independence is a pre-requisite to the
rule of law and a fundamental guarantee of a fair
trial. A judge shall therefore uphold and exemplify
judicial independence in both its individual and
institutional aspects. (Canon 1, New Code of
Judicial Conduct for the Philippine Judiciary)
An honorable, competent and independent
judiciary exists to administer justice and thus
promote the unity of the country, the stability of
government, and the well being of the people.
(Agpalo, Legal and Judicial Ethics, 2009, pp. 606)
Canon 2 - Integrity
Integrity is essential not only to the proper
discharge of the judicial office but also to the
personal demeanor of judges. (Canon 2, New
847
Code of Judicial Conduct for the Philippine
Judiciary)
In the Judiciary, moral integrity is more than
a cardinal virtue, it is a necessity.
Respondents must bear in mind that the exacting
standards of conduct demanded from judges are
designed to promote public confidence in the
integrity and impartiality of the judiciary. When
the judge himself becomes the transgressor of
the law which he is sworn to apply, he places his
office in disrepute, encourages disrespect for the
law and impairs public confidence in the integrity
of the judiciary itself. (Lachica vs. Judge Tormis,
G.R. No. September 20, 2005)
Integrity in a judicial office is more than a virtue;
it is a necessity. It applies, without qualification
as to rank or position, to all officials and
employees, all of whom are deemed standard-
bearers of the exacting norms of ethics and
morality imposed upon courts of justice. (In Re:
Report on the Judicial and Financial Audit
Conducted in the Municipal Trial Court in Cities,
Koronadal City, A.M. No. 02-9-233-MTCC, April
27, 2005)
Although concern for family members is deeply
ingrained in the Filipino culture, the respondent,
being a judge, should bear in mind that he
is also called upon to serve the higher
interest of preserving the integrity of the
entire Judiciary. Canon 2 of the Code of Judicial
Conduct requires a judge to avoid not only
impropriety but also the mere appearance of
impropriety in all activities. (Atty. Gandeza, Jr. vs.
Judge Tabin, A.M. No. MTJ-09-1736, July 25,
2011)
A judge should, in pending or prospective
litigation before him, be scrupulously careful to
avoid such action as it may reasonably tend to
awaken the suspicion that his social or business
relations or friendships constitute an element in
determining his judicial course. He must not only
render a just, correct and impartial decision but
should do so in such a manner as to be free
from any suspicion as to his fairness,
impartiality and integrity. (Anonymous vs.
Judge Buyucan, A.M. No. MTJ-16-1879, July 24,
2018)
Canon 3: Impartiality
Impartiality is essential to the proper discharge of
the judicial office. It applies not only to the
decision itself but also to the process by which
the decision is made. (Canon 3, New Code of
Judicial Conduct for the Philippine Judiciary)
No judge shall preside in a case in which he is
not wholly free, disinterested, impartial
and independent. (Gutierrez vs. Hon. Santos,
et. al., G.R. No. L-15824, May 30, 1961)
Judges must not only render just, correct, and
impartial decisions, resolutions, and orders, but
must do so in a manner free of any suspicion
as to their fairness, impartiality, and
integrity, for good judges are men who have
mastery of the principles of law and who
discharge their duties in accordance with law.
(Salcedo vs. Bollozos, A.M. No., RTJ-10-2236,
July 5, 2010)
Canon 4: Propriety
Propriety and the appearance of propriety are
essential to the performance of all the activities
of a judge. (Canon 4, New Code of Judicial
Conduct for the Philippine Judiciary)
No government position is more demanding of
moral righteousness and uprightness than a seat
in the judiciary. Judges as models of law and
justice are mandated to avoid not only
impropriety, but also the appearance of
impropriety, because their conduct affects the
people’s faith and confidence in the entire judicial
system. (Burias vs. Judge Valencia, A.M. No. MTJ-
07-1689, March 13, 2009)
Illustration:
Mutia testified that he saw Judge Macias having
dinner with Seranillos and entering a bedroom
with her may not satisfactorily prove the charge
of immorality, but this act certainly suggested an
appearance of impropriety, Judge Macias being a
married man. (Macias vs. Judge Macias, A.M. No.
RTJ-01-1650, September 29, 2009)
848
Canon 5: Equality
Ensuring equality of treatment to all before the
courts is essential to the due performance of the
judicial office. (Canon 5, New Code of Judicial
Conduct for the Philippine Judiciary)
Notatu dignum is the presumption of regularity
in the performance of a judge's functions, hence
bias, prejudice and even undue interest cannot
be presumed, specially weighed against a judge's
sacred allegation under oath of office to
administer justice without respect to any person
and do equal right to the poor and to the rich.
(Ocampo vs. Judge Arcaya-Chua, A.M. OCA IPI
No. 07-2630-RTJ, April 23, 2010)
Canon 6: Competence and Diligence
Competence and diligence are prerequisites to
the due performance of judicial office. (Canon 6,
New Code of Judicial Conduct for the Philippine
Judiciary)
A judge may not be disciplined for error of
judgment absent proof that such error was made
with a conscious and deliberate intent to cause
an injustice. This does not mean, however, that
a judge need not observe propriety,
discreetness and due care in the
performance of his official functions.
(Dipatuan vs. Mangotara, A.M. No. RTJ-09-2190,
April 23, 2010)
C. DISQUALIFICATION OF JUDICIAL
OFFICERS
1. Compulsory
No judge or judicial officer shall sit in any case,
without the written consent of all parties in
interest and entered upon the record, in which:
a. He, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or
otherwise; or
b. He is related to either party within the 6th
degree of consanguinity or affinity, or to
counsel within the 4th degree, computed
according to the rules of civil law;
c. He is related to either party within the 6th
degree of consanguinity or affinity, or to
counsel within the 4th degree, computed
according to the rules of civil law; or
d. He has presided in any inferior court when his
ruling or decision is the subject of review.
(Section 1 of Rule 137 of the Rules of Court)
The disqualification of the person called upon to
preside over a specific case does not divest his
court of jurisdiction over the subject-matter of or
the persons of the parties to the said case. At
most, the disqualification strikes only at the
authority of the challenged judge to preside over
the trial of the specific case and therein to
exercise the jurisdiction of the court. Important is
the distinction between the jurisdiction of the
court and the authority of the judge called upon
to exercise such jurisdiction.
A judge may be disqualified to try, sit in or act in
a specific case, but his disqualification does not
destroy the jurisdiction of the court which he
presides over. Thus, if subsequently the
judgment of a disqualified judge should be set
aside as null and void by a higher court, the nullity
stems not from the court's lack of jurisdiction but
from the absence of authority on the part of the
disqualified judge to try the given case. (Jose
Geotine vs The Hon. Jose Gonzalez; G.R. No. L-
26310; September 30, 1971)
Grounds for Compulsory Disqualification
a. Actual bias or prejudice concerning a party or
personal knowledge of the disputed
evidentiary facts;
b. Judge previously served as a lawyer or is a
material witness on the matter;
c. The judge or a member of his family has a
material interest in the outcome of the
controversy;
d. Judge previously served as an executor,
administrator, guardian, trustee, or lawyer, in
the controversy;
e. That the judge’s ruling in a lower court is the
subject of review;
849
f. Relation of the judge by consanguinity or
affinity to a party litigant within the sixth civil
degree or to counsel within the fourth civil
degree;
g. The judge knows that his or her spouse or
child has a financial interest as an heir,
legatee, creditor, fiduciary or otherwise in the
controversy, or has any other interest that
could substantially be affected by the
outcome of the proceedings. (Canon 3, Sec.
5, New Code of Judicial Conduct for the
Philippine Judiciary)
NOTE: The list is not exclusive.
2. Voluntary
A judge may, in the exercise of his sound
discretion, disqualify himself from sitting in a
case, for just or valid reasons. (Rule 137, Sec.
1(2), Rules of Court)
The second paragraph of Section 1, Rule 137
does not give the judge the unfettered discretion
to decide whether or not he will desist from
hearing a case. The inhibition must be for just
and valid causes. The mere imputation of bias or
partiality is not enough grounds for a judge to
inhibit, especially when the same is without any
basis. (People vs. Governor Antonio Kho and
Arnel Quidato, G.R. No. 139381, April 20, 2001)
The mere fact that a counsel who is appearing
before a judge was one of those who
recommended him to the Bench is not a valid
ground from voluntary inhibition. “Utang na loob”
per se should not be a hindrance to the
administration of justice. Nor should recognition
of such value prevent the performance of judicial
duties. However, where the judge admits that he
may be suspected of surrendering to the
persuasions of utang na loob, and he may
succumb to it considering that he and members
of the family no less shall ever remain obliged in
eternal gratitude to the recommending counsel,
sec. 2,Rules of Court)
the judge should inhibit himself [Query of
Executive Judge Estrella Estrada, etc, A.M. No.
87-9-3918-RTC (1987) cited in Lex Pareto
(2014)].
Absence of Disqualification - Duty to Take
Cognizance of a Case
To take or not to take cognizance of a case, does
not depend upon the discretion of a judge not
legally disqualified to sit in a given case. It is his
duty not to sit in its trial and decision if legally
disqualified; but if the judge is not disqualified, it
is a matter of official duty for him to proceed with
the trial and decision of the case. He cannot shirk
the responsibility without the risk of being called
upon to account for his dereliction. (People vs.
Miguel Moreno, G.R. No. L-1441, April 7, 1949)
Procedure for disqualification
If it be claimed that an official is disqualified from
sitting as above provided, the party objecting to
his competency may, in writing, file with the
official his objection, stating the grounds
therefor, and the official shall thereupon proceed
with the trial, or withdraw therefrom in
accordance with his determination of the
question of his disqualification. His decision shall
be forthwith made in writing and filed with the
other papers in the case, but no appeal or stay
shall be allowed from, or by means of, his
decision in favor of his own competency, until
final judgment in the case. (Rule 137,
850
D. DISCIPLINE AND ADMINISTRATIVE
JURISDICTION OVER MEMBERS OF THE
JUDICIARY.

1. Supreme Court
a.) Impeachment

Members of the Supreme Court may be

removed from office on impeachment for,
and conviction of, culpable violation of the
Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of
public trust. (Sec. 2, Article XI, 1987
Constitution)

Steps Leading to Impeachment are as

follows:

a. A verified complaint for impeachment is filed

by a member of the House or endorsed by
him;

b. The complaint is included in the order of

business of the House;

c. The House refers the complaint to the proper

committee;

d. The committee holds a hearing, approves the

resolution calling for impeachment, and
submits the same to the House;

e. The House considers the resolution and votes

to approve it by at least one third of all its
members, which resolution becomes the
article of impeachment to be filed with the
Senate when approved; and

f. The Senate tries the public official under the

article (J. Abad, Separate Concurring
Opinion, Gutierrez v. HOR Committee on
Justice, G.R. No. 193459, February 15,
2011).

851
2. Lower Court Judges and Justices

a.) Sanctions Imposed by the Supreme Court on Erring Members of the Judiciary.

Serious Charges Less Serious Light Charges

Charges

1. Bribery, direct or indirect;

Grounds 1. Undue delay in 1. Vulgar and
2. Dishonesty and violations of the rendering a decision or unbecoming
Anti-Graft and Corrupt Practices Law order, or in conduct;
(R.A. No. 3019); transmitting the
records of a case; 2. Gambling in
3. Gross misconduct constituting public;
violations of the Code of Judicial 2. Frequently and
Conduct; unjustified absences 3. Fraternizing
without leave or with lawyers and
4. Knowingly rendering an unjust habitual tardiness; litigants with
judgment or order as determined by a pending
competent court in an appropriate 3. Unauthorized case/cases in his
proceeding; practice of law; court; and

5. Conviction of a crime involving 4. Violation of Supreme 4. Undue delay in

moral turpitude; 6. Willful failure to Court rules, directives, the submission of
pay a just debt; and circulars; monthly reports.

7. Borrowing money or property from 5. Receiving additional

lawyers and litigants in a case pending or double
before the court; compensation unless
specifically authorized
8. Immorality; by law;

9. Gross ignorance of the law or 6. Untruthful

procedure; statements in the
certificate of service;
10. Partisan political activities; and and

11. Alcoholism and/or vicious habits 7. Simple misconduct

[Sec. 8]. [Sec. 9]

852
 Sanctions 1. Dismissal from the service, forfeiture of 1. Suspension from 1. A fine of not
all or part of the benefits as the Court may office without salary less than
(Section determine, and disqualification from and other benefits for P1,000.00 but not
11) reinstatement or appointment to any not less than one nor exceeding
public office, including government-owned more than three P10,000.00;
or controlled corporations. Forfeiture of months; or and/or
benefits does not include accrued leave
credits; 2. A fine of more than 2. Censure;
P10,000.00 but not
2. Suspension from office without salary exceeding P20,000.00 3. Reprimand;
and other benefits for more than three but
not exceeding six months; or 4. Admonition with
warning.
3. A fine of more than P20,000.00 but not
exceeding P40,000.00

Administrative Liability [A.M. No. 01-8-10-SC (2001)]

853
PRACTICAL EXERCISES

A. DEMAND LETTER

Sample form: DEMAND LETTER

(Date)

(Addressee)
(Address)

FINAL DEMAND TO PAY

Dear, Mr./Ms. ___________

We write on behalf of our client, (Name of Client), the matter of your non-payment of your obligation.

Records disclose that you have an outstanding obligation with our client in the amount of PHP (amount of
obligation) inclusive of interest and surcharges. Despite repeated demands, you failed and continuously
failed to pay the aforesaid amount.

Accordingly, final demand is hereby made upon you to settle the amount of PHP ( amount of obligation)
within (no. of days) from receipt of this letter. Otherwise, we will be constrained to file the necessary legal
action against you to protect the interest of our client.

We trust that you will give this matter your prompt and preferential attention to avoid the expense and
inconvenience of litigation.

Respectfully,

ATTY. (Name of Counsel)

Counsel for (Name of Client)

854
B. DEED OF SALE OF REAL PROPERTY AND DEED OF SALE OF PERSONAL PROPERTY

Sample Form: DEED OF ABSOLUTE SALE OF REAL PROPERTY

DEED OF ABSOLUTE SALE

THIS DEED OF ABSOLUTE SALE IS MADE AND EXECUTED BY:

(State personal circumstances: Name, Age, Address, Citizenship ), herein represented by their
Attorney in fact,(Name of Attorney-in-fact and state personal circumstances), respectively, are hereinafter
referred to collectively as SELLER.

And

(State personal circumstances: Name, Age, Address, Citizenship) and herein represented by (State
personal circumstances of representative: Name, Age, Address, Citizenship ), hereinafter referred as the
BUYER;

WITNESSETH THAT:

WHEREAS, SELLER is the absolute and registered owner in fee simple of a parcel of land with TCT
No. ______, registered under the name of (Name) , for the Registry of Deeds of (Place) , containing a total
area of ( Description of the parcel of land) , more or less;

WHEREAS, SELLER offered to sell said lot and the BUYER is willing to buy and has accepted the
offer;

NOW therefore, for and in consideration of the foregoing premises, the parties hereby agree and
the stipulate the following:

1. In consideration of the payment by the BUYER of the amount of (Amount in PHP) Philippine
currency, receipt of which is hereby acknowledged by the SELLER, and SELLER hereby SELLS, CEDES,
TRANSFERS and CONVEYS by way of absolute sale the above-mentioned improvement unto the BUYER,
their heirs, assigns and successors-in-interest free from all liens and encumbrances.

(State here the stipulation made by the parties)

(Date), (Place).

(Name of Seller) (Name of Seller’s Spouse)

Seller Marital Consent (if necessary)

(Name of Buyer)
Buyer

855
 SIGNED IN THE PRESENCE OF:

(Name of Witness) (Name of Witness)

Witness Witness

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a (Contract), and which instrument was signed by the parties and their
instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

856
Sample Form: DEED OF SALE OF PERSONAL PROPERTY

DEED OF SALE OF PERSONAL PROPERTY

KNOW ALL MEN BY THESE PRESENTS:

I, (State personal circumstances: Name, Age, Address, Citizenship ), hereinafter known as

VENDOR;

-and-

(State personal circumstances: Name, Age, Address, Citizenship), hereinafter known as VENDEE;

WITNESSETH THAT:

1. The VENDOR is the absolute owner of ( State description of the property owned);

2. That for and in consideration of the sum of (Amount of consideration), receipt of which I hereby
acknowledge, I hereby SELL, TRANSFER and CONVEY to the VENDEE, his heirs, assigns and transferees,
the aforesaid described automobile vehicle, free from all liens and encumbrances;

3. That the VENDEE undertakes to pay all taxes, registration and transfer fees.

(Date) and (Place).

(Name of Vendor) (Name of Vendee)

Vendor Vendee

SIGNED IN THE PRESENCE OF:

(Name of Witness) (Name of Witness)

Witness Witness

857
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a (Contract), and which instrument was signed by the parties and their
instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

858
C. CONTRACT OF LEASE

Sample Form: CONTRACT OF LEASE

CONTRACT OF LEASE

THIS CONTRACT OF LEASE IS ENTERED INTO BETWEEN:

(State personal circumstances: Name, Age, Address, Citizenship), and hereinafter referred to as
the LESSOR;

-and-

(State personal circumstances: Name, Age, Address, Citizenship ), and hereinafter referred to as
the LESSEE;

WITNESSETH THAT:

The LESSOR sub-leases a (State kind the property being leased), in favor of the LESSEE, for (State
purpose of lease), within (Period of lease), commencing on (Date), for and in consideration of the monthly
rental in the amount of (Amount in words and in figures) Philippine Currency;

(State other circumstances pertaining to the lease: Date of payment, Amount of payment, Place
and Time of payment, and Tender of Payment);

(Date) and (Place)

(Name of Lessor) (Name of Lessee)

Lessor Lessee

SIGNED IN THE PRESENCE OF:

(Name of Witness) (Name of Witness)

Witness Witness

859
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a (Contract), and which instrument was signed by the parties and their
instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

860
D. SPECIAL POWER OF ATTORNEY

Sample Form: SPECIAL POWER OF ATTORNEY

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality ) S.S

SPECIAL POWER OF ATTORNEY

THIS SPECIAL POWER OF ATTORNEY IS ENTERED BETWEEN:

(Name of Principal), the Principal,

-and-

(Name of Agent), the Agent.

(State personal circumstances: Name, Age, Address, Citizenship ), do hereby appoint, (Name of Attorney-
in-fact and state personal circumstances) to be my true and lawful attorney-in-fact, to do and perform the
following acts:

1. (Enumerate the powers to be given to Attorney-in-fact)

HEREBY GIVING AND GRANTING unto my said attorney-in-fact full power and authority to do and perform
any and every act and thing whatsoever requisite, necessary to be done in and about the premises as fully
to all intents and purpose as I might or could lawfully do if personally present and hereby ratifying and
confirming all that my said attorney-in-fact shall lawfully do and cause to be done under by virtue of these
presents.

(Date) and (Place)

CONFORME:
(Name of Principal) (Name of Attorney-in-fact)
Principal Attorney-in-fact
SIGNED IN THE PRESENCE OF:
(Name of Witness) (Name of Witness)
Witness Witness

861
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a (Contract), and which instrument was signed by the parties and their
instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

862
E. VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING

Sample Form: VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality ) S.S

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, (State personal circumstances: Name, Age, Address, Citizenship of Plaintiff), respectful states
thatt:

1. I am the plaintiff in the above-entitled case and have caused the preparation of the foregoing
(complaint/pleading);

2. The allegations in the pleading are true and correct based on my personal knowledge, or based on
authentic documents;

3. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of
litigation;

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

5. I have not commenced any action or filed any claim involving the same issue in any court, tribunal,
or quasi-judicial agency and, to the best of my knowledge, no such other action or claim is pending
therein;

6. If there is such other pending action or claim, I will furnish this Honorable Court with a complete
statement of the present status thereof; and

7. If I should thereafter learn that the same or similar action or claim has been filed or is pending, I
shall report that fact within five (5) calendar days therefrom to this Honorable Court wherein my aforesaid
(complaint/pleading) has been filed.

IN WITNESS WHEREOF, I hereunto affix my signature this (Date and Place where signed).

(signed)
(Name of Affiant)
Affiant

863
 SWORN and SUBSCRIBED to before me this (Date) in (Place), with the affiant, (Name of Plaintiff),
presenting his (Type of Identification) with (I.D. Number) issued on (Date of Issuance at (Place / Office
where I.D. was issued) as proof of his identity.

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

864
F. JUDICIAL AFFIDAVIT

Sample Form: VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

(Name of the Plaintiff),

Plaintiff,
Civil Case No. ___________
- versus - For:

(Name of the Defendant),

Defendant.
x ----------------------------------- x

JUDICIAL AFFIDAVIT OF [NAME OF WITNESs/AFFIANT]

(in lieu of direct examination)

PURPOSE

The testimony of the witness is being offered to prove:

1. [state factual matter to be established]

2. [state factual matter to be established]
3. Other matters necessary to establish the allegations in the Complaint Affidavit.

I, (Name of the Witness), (Citizenship), (Civil Status), of legal age, with residence at (Address), after having
been duly sworn in accordance with law, hereby depose and state:

PRELIMINARY STATEMENT

The person examining me is Atty. (Name of Atty.), of (Law Firm), with address at (Address). The
examination is being held at the same address.

I am answering his questions fully conscious that I do so under oath and may face criminal liability for false
testimony and perjury.

865
AFFIDAVIT PROPER

[PLACE HERE THE QUESTIONS AND ANSWERS]

Q1:
A:

Q2:
A:

Q3:
A:

Q4:
A:

Q5:
A:

Nothing further.

(Date) and (Place).

Signature
Name of Witness

SWORN and SUBSCRIBED to before me this (Date) in (Place), with the affiant, (Name of Plaintiff),
presenting his (Type of Identification) with (I.D. Number) issued on (Date of Issuance at (Place / Office
where I.D. was issued) as proof of his identity.

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

866
G. NOTARIAL CERTIFICATES

1. Jurat

SWORN and SUBSCRIBED to before me this (Date) in (Place), with the affiant, (Name of Plaintiff),
presenting his (Type of Identification) with (I.D. Number) issued on (Date of Issuance at (Place / Office
where I.D. was issued) as proof of his identity.

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

867
2. Acknowledgment

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a (Contract), and which instrument was signed by the parties and their
instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

868
H. MOTIONS

--

1.Motion for Summary Judgment

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

(Name of the Plaintiff),

Plaintiff,
Civil Case No. ___________
- versus - For:

(Name of the Defendant),

Defendant.
x ----------------------------------- x

MOTION FOR SUMMARY JUDGMENT

COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable Court, avers
that:

1. In the defendant's Answer to the complaint for the sum of money, he claims that he has paid the
principal amount and the remaining issue refers merely to the proper mathematical computation (6%
Interest) of the interest which raises no factual issue. However, defendant did not attach to his answer
any alleged receipt issued by the plaintiff to show his payment;

2. The burden of showing payment rests on the defendant, by showing receipt of payment, if any. A
verbal claim is not sufficient;

3. There is no genuine issue of fact, which may require a full-blown trial.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that a
summary judgment be rendered in the present case.

Other relief and remedies as may be deemed just and equitable under the premises are likewise
prayed for.

(Date) and (Place).

869
 (Signature)
(Name)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Copy Furnished:

ATTY. (Name)
Counsel for Defendant
(Address)

NOTICE OF HEARING

TO: HONORABLE CLERK OF COURT

Regional Trial Court Branch (Branch No.)

ATTY. (Name)
Counsel for Defendant
(Address)

GREETINGS:

Please be informed that the foregoing motion shall be submitted for the consideration of this Court
on (date) and (time).

(Signature)
(Name)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

EXPLANATION OF SERVICE

A copy of this motion was filed and served via registered mail (accredited courier) because of lack
of manpower/geographical distance.

(Signature)
(Name of Counsel for Plaintiff)

870
2.Motion to Dismiss

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

(Name of the Plaintiff),

Plaintiff,
Civil Case No. ___________
- versus - For:

(Name of the Defendant),

Defendant.
x ----------------------------------- x

MOTION TO DISMISS

COMES NOW, the defendant, through the undersigned counsel and unto this Honorable Court,
avers:

1. (State the grounds/allegations)

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the
Complaint be dismissed.

Other relief and remedies as may be deemed just and equitable under the premises are likewise
prayed for.

(Date) and (Place).

(Signature)
(Name)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Copy Furnished:

ATTY. (Name)
Counsel for Plaintiff

871
(Address)

NOTICE OF HEARING

TO: HONORABLE CLERK OF COURT

Regional Trial Court Branch (Branch No.)

ATTY. (Name)
Counsel for Plaintiff
(Address)

GREETINGS:

Please be informed that the foregoing motion shall be submitted for the consideration of this Court
on (date) and (time).

(Signature)
(Name)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

EXPLANATION OF SERVICE

A copy of this motion was filed and served via registered mail (accredited courier) because of lack
of manpower/geographical distance.

(Signature)
(Name of Counsel for the Defendant)

872
3.Motion to Declare in Default

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

(Name of the Plaintiff),

Plaintiff,
Civil Case No. ___________
- versus - For:

(Name of the Defendant),

Defendant.
x ----------------------------------- x

MOTION TO DECLARE IN DEFAULT

COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable Court, avers
that:

1. The plaintiff filed this Complaint against defendant on ( date); summons were served on defendant on
(date), as indicated by the Sheriff’s Return of even date, a copy of which is attached as ANNEX A.

2. Defendant’s reglementary period to file Answer ended on ( date); no motion for extension of such
period was filed nor was any granted motu proprio by this Honorable Court. Despite the lapse of time,
defendant has failed to answer the Complaint against him; plaintiff is entitled to a declaration of default
and the right to present evidence ex parte against defendant.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the
defendant be declared in default and that plaintiff be allowed to present evidence ex parte before the Clerk
of Court acting as Commissioner.

Other relief and remedies as may be deemed just and equitable under the premises are likewise
prayed for.

(Date) and (Place).

(Signature)
(Name)
Roll No. ____;
IBP No. ____;

873
 PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Copy Furnished:

ATTY. (Name)
Counsel for Defendant
(Address)

NOTICE OF HEARING

TO: HONORABLE CLERK OF COURT

Regional Trial Court Branch (Branch No.)

ATTY. (Name)
Counsel for Defendant
(Address)

GREETINGS:

Please be informed that the foregoing motion shall be submitted for the consideration of this Court
on (date) and (time).
.

(Signature)
(Name)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

EXPLANATION OF SERVICE

A copy of this motion was filed and served via registered mail (accredited courier) because of lack
of manpower/geographical distance.

(Signature)
(Name of Counsel for Plaintiff)

874
I. QUITCLAIMS IN LABOR CASES

Sample form: RELEASE, WAIVER AND QUITCLAIM

WAIVER, RELEASE AND QUITCLAIM

I, (State personal circumstances: Name, Age, Address, Citizenship), states that:

1. I was employed by (Name of the Company) as (Position) from (Date Started) until (Date of
Resignation), when I tendered my resignation;

2. That I hereby acknowledge to have received from my employer the sum of (Amount in Words)
(Amount in Numbers) which is in full and final satisfaction of my salary and other benefits that may be due
me for the service which I have rendered for the latter employer;

3. That I hereby declare that I have no further claims whatsoever against my employer, its President,
members of the Board, officers or any of its staff and that I hereby release and forever discharge all of
them from any and all claims, demands, cause of action of whatever nature arising out of my employment
with the latter;

4. I further agree that this WAIVER, RELEASE AND QUITCLAIM may be pleaded in bar to any suit or
proceeding (Civil, SSS, PhilHealth, Medicare, Labor, etc.) to which either I, or my heirs and assigns, may
have against my employer in connection with my employment with the latter and that the payment which
I have received as provided herein should not in any way be construed as an admission of liability on the
part of my employer and is voluntarily accepted by me and will, if need be, serve as full and final settlement
of any amount(s) due me or any claims or cause of action, either past, present, future, which I may have
in connection with my employment with my employer;

5. As such, I finally make manifest that I have no further claim(s) or cause of action against my
employer nor against any person(s) connected with the administration and operation of the latter and
forever release the latter from any and all liability.

IN WITNESS WHEREOF, I have hereunto signed this instrument this (Date) and (Place).

(Sgd.)
[NAME OF AFFIANT]
Affiant

875
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF (Name of City / Municipality )S.S.

BEFORE ME, this _____ day of ___________ in the City of ________________, personally appeared:

Name Competent Evidence of Identity Place and Date of Issue

_________________________ _________________________ _________________________
_________________________ _________________________ _________________________

known to me to be the same persons who executed the foregoing instrument, and acknowledged that the
same are their free act and deed.

This instrument consisting of (Number of Pages), including the page on which Acknowledgment
Clause is written, pertains to a Release, Waiver and Quitclaim, and which instrument was signed by the
parties and their instrumental witnesses on each and every page hereof, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal on the (Date
and Place).

NOTARY PUBLIC
Commission Expires on _______
Commission No.___: (Place) (Date)
Roll No. ____;
IBP No. ____;
PTR No. ____;
MCLE No.____.
(Office Address)
(Contact Details)

Doc. No.: _____;

Page No.:_____;
Book No.:_____;
Series of _____.

876
J. INFORMATION

Information in Criminal Cases

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Crim. Case No. ___________
- versus - For:

(Name of the Accused),

Accused.
x ----------------------------------- x

INFORMATION

The undersigned Assistant Provincial Prosecutor accuses (name of the accused) of the crime of
(offense committed), defined and penalized under (legal basis for the offense), committed as follows:

That on or about (date and time) in (place, city, province and/or municipality of the commission of
the offense) and within the jurisdiction of this Honorable Court, the above mentioned accused, not being
authorized by law to (circumstances), did then and there, willfully, unlawfully, knowingly, and feloniously,
(acts or omission constituting the crime).

Contrary to law.

(City or Municipality)
(Date or Time)

(signed)
(Name of the Assistant Provincial/City Prosecutor)
Assistant Provincial/City Prosecutor

Approved By:

(signed)
(Name of the Provincial/City Prosecutor)
Provincial/City Prosecutor

CERTIFICATION

This is to certify that the foregoing Information is filed pursuant to Rules of Criminal Procedure, the accused
not having opted to avail himself of his right to preliminary investigation and not having executed a waiver

877
pursuant to the Revised Penal Code. This further certifies that this Information is being filed with the prior
authority of the Provincial/City Prosecutor.

(signed)
(Name of the Assistant Provincial/City Prosecutor)
Assistant Provincial/City Prosecutor

JURAT

SUBSCRIBED AND SWORN to before me this ________ in ___________.

(signed)
(Name of the Provincial/City Prosecutor)
Provincial/City Prosecutor

WITNESS/ES:

1.(Name and Address of witness)

2. (Name and Address of witness)

BAIL RECOMMENDED: Php (amount of bail)

878
Information in Criminal Cases (with Inquest Proceeding Conducted)

REPUBLIC OF THE PHILIPPINES

(Region)
REGIONAL TRIAL COURT
(City), (Branch No.)

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Crim. Case No. ___________
- versus - For:

(Name of the Accused),

Accused.
x ----------------------------------- x

INFORMATION

The undersigned Assistant Provincial Prosecutor accuses (name of the accused) of the crime of
(offense committed), defined and penalized under (legal basis for the offense), committed as follows:

That on or about (date and time) in (place, city, province and/or municipality of the commission of
the offense) and within the jurisdiction of this Honorable Court, the above mentioned accused, not being
authorized by law to (circumstances), did then and there, willfully, unlawfully, knowingly, and feloniously,
(acts or omission constituting the crime).

Contrary to law.

(City or Municipality)
(Date or Time)

(signed)
(Name of the Assistant Provincial/City Prosecutor)
Assistant Provincial/City Prosecutor

Approved By:

(signed)
(Name of the Provincial/City Prosecutor)
Provincial/City Prosecutor

CERTIFICATION

This is to certify that a Preliminary Investigation was conducted in this case in accordance with law;
that I have examined the complainant and his witnesses; that there is reasonable ground to believe that
the offense charged had been committed and the accused is probably guilty thereof; the accused was given
the opportunity to present controverting evidence and that the filing of this information is with the authority
of the Provincial/City Prosecutor.

879
 (signed)
(Name of the Assistant Provincial/City Prosecutor)
Assistant Provincial/City Prosecutor

JURAT

SUBSCRIBED AND SWORN to before me this ________ in ___________.

(signed)
(Name of the Provincial/City Prosecutor)
Provincial/City Prosecutor

WITNESS/ES:

1.(Name and Address of witness)

2. (Name and Address of witness)

BAIL RECOMMENDED: Php (amount of bail)

880
881