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 REMEDIAL LAW
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LAST MINUTE TIPS
Remedial Law
General principles
Q: Is direct recourse to the Supreme Court
allowed?
A: 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
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)
However, invocation of the Supreme Court’s
original jurisdiction to issue writs of certiorari is
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)
Q: What is the doctrine of judicial stability or
noninterference?
A: The doctrine of judicial stability or
noninterference 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)
Q: How is jurisdiction over the subject matter
conferred?
A: Jurisdiction over the subject matter is
conferred by law. It is also determined by the
averments in the complaint and the nature of the
reliefs being sought. (Del Monte Land Transport
Bus, Co. v. Armenta, G.R. No. 240144, February
3, 2021, J. Hernando)
Q: Can jurisdiction be acquired over the
person of the defendant if he knows that a
case against him is pending?
A: No. Jurisdiction over the person of the
defendant cannot be acquired notwithstanding
his knowledge of the pendency of a case against
him, unless he was validly served with summons.
Thus, serving the order and TPO to Atty. Palmero
cannot be considered a valid service of
summons. (Sabado v. Sabado, G.R. No. 214270,
May 12, 2021, J. Hernando)
Q: What is the difference between
jurisdiction and the exercise of jurisdiction?
A: Jurisdiction is not the same as the exercise of
jurisdiction. As distinguished from the exercise of
jurisdiction, jurisdiction is the authority to decide
a cause, and not the decision rendered therein.
Where there is jurisdition over the person and
the subject matter, the decision on all other
questions arising in the case is but an exercise of
the jurisdiction. And the errors which the court
may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper
subject of an appeal. (Heirs of Borras v. Heirs of
Borras, G.R. No. 213888, April 25, 2022, J.
Hernando)
Q: What is the effect of non-compliance to
the pre-requisite barangay conciliation?
A: 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)
Civil Procedure
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Q: What is the nature of the grounds under
Rule 16 of the Rules of Court?
A: The grounds under Rule 16 of the Rules of
Court partake of the nature of defenses which
can be considered without even touching on the
merits of the case. Essentially, these grounds
assert that even if the allegations in the
complaint are hypothetically admitted to be true,
the plaintiff is still in no position to proceed
against the defendant. (Land Bank of the
Philippines v. Abellana, G.R. No. 237369,
October 19, 2022, J. Hernando)
Q: Is the right to intervene (Rule 19) an
absolute right?
A: 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)
Q: May Rule 23 of the Rules of Civil
Procedure be applied suppletorily to a
criminal case so that a prosecution witness
who was convicted of drug trafficking,
sentenced to death, and confined in a prison
facility in another country testify by way of
deposition upon written interrogatories?
A: Yes. Nowhere in the present Rules on Criminal
Procedure does it state how a deposition, of a
prosecution witness who is at the same time
convicted of a grave offense by final judgment
and imprisoned in a foreign jurisdiction, may be
taken to perpetuate the testimony of such
witness. The Rules, in particular, are silent as to
how to take a testimony of a witness who is
unable to testify in open court because he is
imprisoned in another country. 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. (People vs.
Sergio, G.R. No. 240053. October 9, 2019)
Q: When would an answer fail to render an
issue that would lead to a judgment on the
pleadings?
A: An answer would fail to render an issue if it
does not deny the material allegations in the
complaint in the complaint or admits said
material allegations of the adverse party's
pleadings by confessing the truthfulness thereof
and/or omitting to deal with them at all. If an
answer specifically denies the material
averments of the complaint and/or asserts
affirmative defenses, i.e., allegations of new
matters which, while admitting the material
allegations of the complaint expressly or
impliedly, would nevertheless prevent or bar
recovery by the plaintiff, a judgment on the
pleadings would be improper. (Boongaling v.
Banco San Juan, G.R. No. 214259, November 29,
2022, J. Hernando)
Q: When is summary judgment allowed?
A: Summary judgment, also called accelerated
judgment, is a procedural device that allows
parties to avoid long litigation and delays, where
the pleadings show that there are no genuine
issues of fact to be tried. A genuine issue of fact is
"such issue of fact which requires the
presentation of evidence as distinguished from a
sham, fictitious, contrived, or false claim." As such,
an issue of fact is genuine if it requires
presentation of evidence to be resolved. (Aljem's
Credit Investors Corp. v. Spouses Bautista, G.R.
No. 215175, April 25, 2022, J. Hernando)
Q: What is the purpose of an action for
revival of judgment?
A: 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)
Q: Is a final and executory decision
immutable?
A: 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
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of the action or proceeding. (Taningco v.
Fernandez, G.R. No. 215615, December 9, 2020,
J. Hernando)
Q: What is res judicata?
A: 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)
Provisional Remedies
Q: What is a writ of preliminary attachment?
A: 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)
Q: What is the nature of preliminary
attachment?
A: 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)
Q: Can a preliminary writ survive the
resolution of the main case of which it is an
incident?
A: 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)
Q: What is the quantum of evidence in
preliminary injunction?
A: 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)
Special Civil Actions
Q: When is a writ of certiorari under Rule65
applicable?
A: 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
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"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)
Q: What is the difference between Rule 67
and RA 8974 on expropriation proceedings?
A: Expropriation proceedings for national
infrastructure projects are governed by Rule 67 of
the Rules of Court and Republic Act No. 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)
Section 4 of Republic Act No. 8974, unlike Rule
67, Section 2 of the Rules of Civil Procedure,
requires immediate payment to the landowner of
100% of the value of the property based on the
current relevant zonal valuation of the Bureau of
Internal Revenue. It is the Bureau of Internal
Revenue, not the court, which determines the
zonal value. The law also requires the immediate
payment of the value of the improvements
and/or structures on the land before the trial
court can issue the Writ of Possession. (National
Power Corp. v. Posada, 2015)
Q: Will an extrajudicial foreclosure be
rendered null and void for lack of personal
notice to the mortgagor?
A: No. Well-settled is the rule that personal notice
to the mortgagor in extrajudicial foreclosure
proceeding is not necessary. Section 3 of Act No.
3135, as amended by Act No. 4118, requires only
the posting of the notice of sale in three public
places and the publication of that notice in a
newspaper of general circulation. An exception
to this rule is when the parties stipulate that
personal notice is additionally required to be
given to the mortgagor. Failure to abide by the
general rule or its exception renders the
foreclosure proceedings null and void (Panacan
Lumber Co. v. Solidbank Corp., G.R. No. 226272,
September 16, 2020, J. Hernando)
Q: Is Act No. 3135 applicable when the
one-year redemption period has lapsed?
A: No. 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. (Sps.
Torrecampo v. Wealth Development Bank
Corp., G.R. No. 221845, March 21, 2022, J.
Hernando)
Q: Is there a right of redemption in judicial
foreclosure of mortgage?
A: There is no right of redemption in judicial
foreclosure of mortgage, except only if the
mortgage is the Philippine National Bank or any
banking institution. (GSIS vs. The CFI of Iloilo,
G.R. No. 45322, July 5, 1989; R.A. No. 8791)
Q: Is service of summons required in a Writ
of Habeas Corpus in Relation to Custody of
Minors?
A: No. As regards petitioner’s assertion that the
summons was improperly served, suffice it to
state that 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
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respondent. (Tujan-Militante v. Cada-Deapera,
G.R. No. 210636, 28 July 2014 )
Q: May an issue of ownership be resolved in
deciding the issue of possession?
A: 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. The 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 property ownership issue 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. (Palajos v. Abad, G.R. No. 205832,
March 7, 2022, J. Hernando)
Special Proceedings
Q: May a probate court look into the intrinsic
validity of a will?
A: The main issue which the court must
determine in a probate proceeding is the due
execution or the extrinsic validity of the will as
provided by Section 1, Rule 75 of the Rules of
Court. The probate court cannot inquire into the
intrinsic validity of the will or the disposition of
the estate by the testator. Thus, due execution is
"whether the testator, being of sound mind,
freely executed the will in accordance with the
formalities prescribed by law". (Tanchanco v.
Santos, G.R. No. 204793, June 8, 2020, J.
Hernando)
Q: In a Writ of Amparo, is Government
participation an indispensable requirement?
A: 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, J. Hernando)
Criminal Procedure
Q: What is the rule on filing a complaint and
an information?
A: 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)
Q: What is the purpose of requiring the
specification of elements of a crime in the
Information?
A: 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)
Q: What is the effect of death of an accused?
A: The death of the accused extinguishes his/her
personal criminal liability. Additionally, the
pecuniary penalties of the accused will only be
extinguished if he/she dies before final judgment
is rendered. (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)
Q: Is the right to preliminary investigation
constitutionally-guaranteed?
A: No. The accused's right to preliminary
investigation is not a constitutionally-guaranteed
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right but one of mere statutory privilege.
(Radaza vs. Sandiganbayan, G.R. No. 201380,
August 4, 2021, J. Hernando)
Q: What is the purpose of preliminary
investigation?
A: 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)
Q: What is the effect of lack of searching
inquiry in instances when the accused
pleads guilty to a capital offense?
A: 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. (People v.
Pagal, G.R. No. 241257, September 29, 2020)
The court is mandated to perform the following
acts: (a) to conduct a searching inquiry to
ascertain the voluntariness of the plea, and to
ascertain whether or not the accused has full
comprehension of the consequences of his plea;
(b) to require the prosecution to prove the guilt of
the accused and the precise degree of his
culpability; and (c) to ask the accused if he wishes
to present evidence on his behalf and be allowed
to do so, if he desires. (People v. Pagal, 2020)
Q: When can a judgment be considered null
and void?
A: 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 [this case] 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)
Q: What are the factors to determine delay in
the disposition of cases?
A: Guidelines to determine whether the right to
speedy disposition of cases has been violated, to
wit: 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 that 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)
Q: What is the Equipose Rule?
A: Where the evidence on an issue of fact is in
equipoise or there is doubt on which side the
evidence preponderates, the party having the
burden of proof loses. The equipose rule finds
application if the inculpatory facts and
circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other
consistent with his guilt, for then the evidence
does not fulfill the test of moral certainty, and
does not suffice to produce a conviction. Briefly
stated, the needed quantum of proof to convict
the accused of the crime charged is found
lacking. (Arriola v. People, G.R. No. 199975,
February 24, 2020, J. Hernando)
6
 REMEDIAL LAW
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LAST MINUTE TIPS

Evidence Q: Who can testify as to the accuracy of a

Q: What is the rule on admissibility of
documents?
A: Whether a document is public or private is
relevant in determining its admisibility as
evidence. Public documents are admissible in
evidence even without further proof of their due
execution and genuineness. On the other hand,
private documents are inadmissible in evidence
unless they are properly authenticated. (Disini v.
Republic, G.R. No. 205172, June 15, 2021, J.
Hernando)
CCTV recording?
A: The Rules on Electronic Evidence provides that
persons authorized to authenticate the video or
CCTV recording is not limited solely to the person
who made the recording but also by another
competent witness who can testify to its
accuracy. (People v. Manansala y Alfaro, G.R.
No. 233104, September 2, 2020, J. Hernando)

Q: What is the chain of custody in relation to

the Comprehensive Dangerous Drugs Act?
A: “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)

Q: What is the doctrine of independently

relevant statements?
A: 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)